Monday’s’ 5-4 decision in June Medical Services v. Russo is a disappointing setback for pro-life advocates and the reasonable regulation of abortion. The health and safety of women should always come before the interests of abortionists and their businesses.
June Medical involved a challenge to Louisiana’s Act 620, a law requiring abortionists in the state to have admitting privileges at a hospital within 30 miles of where they perform the procedure. Opponents of Act 620 — four abortionists and five Louisiana abortion businesses — went to court and successfully blocked the law from going into effect. They argued that the Louisiana law was unconstitutional, pointing to Whole Woman’s Health v. Hellerstedt. In that 2016 case, the Supreme Court struck down a Texas hospital admitting privileges law in a 5-3 decision. Sadly, a majority of the justices on the high court in 2020 agreed with the abortionists and declared the Louisiana law unconstitutional, as well.
The June Medical majority first addressed an important question regarding standing: whether the case could even be brought to federal court in the first place. As in most challenges to abortion regulations, June Medical was brought by abortion businesses and abortionists. Not one woman — not even one “future client” — joined this lawsuit intended to block reasonable health and safety regulation of these abortion businesses. Generally, a person can only go to court to assert his or her own legal rights and interests. A narrow exception to this “standing” rule exists when a third party has a close relationship to the right-holder, or the right-holder is unable to sue and can trust the third party to pursue his or her interests. There is a clear conflict of interest between abortion businesses and abortionists and their clients when it comes to health and safety regulations.
The standing question was hotly debated in briefs and during oral argument, but Justice Stephen Breyer, writing for a court plurality, asserted that Louisiana had waived the standing issue in the lower court. And besides, he said, “a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing.” Chief Justice John Roberts agreed with Breyer on this standing issue in a footnote of his separate concurring opinion. The standing issue in the court’s abortion jurisprudence is something that Justice Clarence Thomas has consistently denounced. “[P]laintiffs lack standing to invoke our jurisdiction because they assert no private rights of their own, seeking only to vindicate the putative constitutional rights of individuals not before the Court,” Thomas explained in his dissent.
Lamentably, the court in June Medical continues a carve-out exception on the standing issue by permitting the abortion industry to challenge reasonable regulation under the guise of vindicating the “rights” of the women.
As to the merits, Justice Breyer — who also authored the majority opinion in Whole Woman’s Health — was joined by justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in his plurality opinion. The Louisiana law, he wrote, is “almost word-for-word identical to Texas’ admitting-privileges law.” Breyer, citing his opinion in Whole Woman’s Health, applied a balancing test that weighs the law’s “asserted benefits against the burdens” it imposes on abortion access.
The plurality embraced the district court’s finding that there was “no significant health-related problem that the law helped to cure” and “no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law.” The plurality also agreed with the lower court’s conclusion that the law “would place substantial obstacles in the path of women seeking an abortion in Louisiana.”
Chief Justice Roberts, who dissented in Whole Woman’s Health, surprisingly joined in the decision to strike down Louisiana’s law.
While he continues “to believe that the [Texas] case was wrongly decided,” Roberts felt compelled to strike down Act 620 because “Louisiana’s law cannot stand under our precedent.” Roberts wrote, “The legal doctrine of stare decisis [‘to stand by things decided’] requires us, absent special circumstances, to treat like cases alike.”
“Precedent” in this case may have been upheld, but it is a very dangerous precedent for women in Louisiana. Contrary to the plurality’s assessment, Louisiana lawmakers established a clear factual record of a long string of abuses that threatened the health of Louisiana women.
The Louisiana Department of Health chronicled health and safety violations, including failing to ensure women were medically stable prior to discharge, failing to question clients about past complications prior to administering anesthesia, and failing to properly clean and disinfect instruments. Abortion facilities also failed to prevent inept or unethical doctors from working there.
Requiring doctors performing abortions to have hospital admitting privileges is important for two reasons. First, admitting privileges indicate competence. Reputable hospitals screen out practitioners whose work history is full of red flags. Second, doctors involved in the procedure should accompany a woman suffering serious complications from an abortion if she requires hospitalization. Continuity of care can safeguard a woman’s future fertility and even her life.
Act 620 did not place additional burdens on abortionists. Louisiana requires all other ambulatory surgical doctors in the state to have hospital admitting privileges. Louisiana legislators were simply closing a dangerous loophole that gave abortionists preferential treatment.
Justice Neil Gorsuch, one of the four dissenting justices, picked up on this saying, “it turns out that Act 620’s admitting privileges requirement for abortion providers tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.”
If there is a silver lining in June Medical, it’s in the thoughtful dissenting opinions. “The majority bills today’s decision as a facsimile of [Whole Woman’s Health] and it’s true they have something in common,” wrote Justice Samuel Alito. “In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.” Justice Thomas, for his part, lamented that the June Medical majority “perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without justification.”
In June Medical, the Supreme Court, to its shame, told women seeking abortions that their state government is powerless to protect them from abortionists and clinics whose gross negligence and malfeasance put their lives at risk. How many more vulnerable women will have to suffer the burden of the court’s unfettered abortion jurisprudence?
Andrea Picciotti-Bayer is legal adviser for The Catholic Association Foundation.