By: Marina Batalias, Senior Manuscript Editor
On Friday October 4, 2019, the Supreme Court of the United States granted certiorari to June Medical Services LLC v. Gee, appealed from the Fifth Circuit.[1] The case involves a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital. Eagle-eyed Court-watchers may be experiencing déjà vu- hasn’t the Court already decided this issue? In short, yes.[2] Will the Court decide the case the same way? In classic lawyer terms, it depends.
In 2016, the Court invalidated a Texas “admitting privilege” requirement in Whole Woman’s Health v. Hellerstedt.[3] The relevant statute required a physician “performing or inducing an abortion [to have] on the date the abortion is performed or induced . . . active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.”[4] The statute at issue in the upcoming Louisiana case “is, by the state’s own admission, virtually identical to the Texas requirement.”[5]
In Hellerstedt, the Court struck the Texas statute down 5-3.[6] Justice Breyer wrote the opinion, joined by Justices Kagan, Kennedy, Ginsburg, and Sotomayor.[7] Justice Ginsburg wrote a separate concurring opinion to chide Texas and warn all states that “[s]o long as this Court adheres to Roe v. Wadeand Planned Parenthood v. Casey, Targeted Regulation of Abortion Providers [TRAP] laws like [the Texas statute] that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”[8]
Justice Thomas, Justice Alito, and Chief Justice Roberts dissented.[9] Justice Thomas wrote separately to “emphasize how today’s decision perpetuates the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion.”[10] Justice Alito also wrote a dissenting opinion, which Justice Thomas and Chief Justice Roberts joined, to argue that the Court should have barred the case because of res judicata.[11]
Although the Court decided Hellerstedt barely three years ago, the Court’s composition has changed dramatically. Justice Scalia had passed away earlier that year,[12] leaving only eight justices on the Hellerstedt Court.[13] Justice Gorsuch filled his seat in early 2017.[14] Justice Kennedy, an often-pivotal swing vote on controversial decisions, retired early last year.[15] Justice Kavanaugh has since replaced him on the Court.[16]
Presumably, the Justices who remain from the Hellerstedt Court will vote today as they did in 2016. This means that Justices Breyer, Kagan, Ginsburg, and Sotomayor (at the very least) will form a plurality, while Justice Thomas, Justice Alito, and Chief Justice Roberts will form another coalition. But where will the newcomers fall?
The most logical side for Justices Kavanaugh and Gorsuch to vote with is with the conservative coalition.[17] Anti-abortion groups see Justices Kavanaugh and Gorsuch as “the best opportunity in decades for scaling back abortion rights.”[18] Although one could describe him as “a milder conservative than expected” in his first term with the Court, Justice Kavanaugh sided with the conservative bloc on two important cases that divided down partisan lines.[19] This, combined with the fact that Justice Kavanaugh has aligned himself with Chief Justice Roberts in all but one decision, indicates that Justice Kavanaugh will side with the conservative majority when it counts.[20] Gorsuch may be more of a wild card, since he has given no indication of his views on abortion and never heard a case involving its constitutionality in his ten years on a lower appellate court.[21] Truthfully, Justice Kavanaugh and Justice Gorsuch could vote either way- neither former appellate judge has heard a case of this type before,[22] so court-watchers can only make educated guesses.
Will the Court invoke stare decisis and decide June Medical Services LLC v. Gee the same way as Hellerstadt? Or does the outcome of this case depend instead upon the Court’s make-up?[23] Tune into this case’s oral arguments during the October Term for possible indications of how the Court may lean.
[1]Amy Howe, Justices Grant New Cases For Upcoming Term, Will Tackle Louisiana Abortion Dispute, SCOTUSblog(Oct. 4, 2019), https://www.scotusblog.com/2019/10/justices-grant-new-cases-for-upcoming-term-will-tackle-louisiana-abortion-dispute/#more-289470
[2]See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016).
[3]136 S. Ct. 2292, 2300 (2016); see generally Lyle Denniston, Opinion Analysis: Abortion Rights Reemerge Strongly, SCOTUSblog (June 27, 2016), https://www.scotusblog.com/2016/06/opinion-analysis-abortion-rights-reemerge-strongly/ (summarizing and analyzing the opinion).
[4]Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016).
[5]Amy Howe, Justices Grant New Cases For Upcoming Term, Will Tackle Louisiana Abortion Dispute, SCOTUSblog(Oct. 4, 2019), https://www.scotusblog.com/2019/10/justices-grant-new-cases-for-upcoming-term-will-tackle-louisiana-abortion-dispute/#more-289470.
[6]Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016).
[7] Id.
[8] Id. (Ginsburg, J., concurring) (internal citations omitted).
[9] Id.
[10] Id. (Thomas, J., dissenting).
[11] Id. (Alito, J., dissenting).
[12]Adam Liptak, Antonin Scalia, Justice on the Supreme Court, Dies at 79, N.Y. Times(Feb. 13, 2016), https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html.
[13]See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2299 (2016) (noting the Court’s makeup).
[14]Robert Barnes and Ashley Parker, Neil M. Gorsuch Sworn in as 113th Supreme Court Justice, Wash. Post(Apr. 10, 2017), https://www.washingtonpost.com/politics/courts_law/gorsuch-to-be-sworn-in-to-supreme-court-today-in-two-ceremonies/2017/04/10/9ac361fe-1ddb-11e7-ad74-3a742a6e93a7_story.html.
[15]Michael D. Shear, Supreme Court Justice Anthony Kennedy Will Retire, N.Y. Times(June 27, 2018), https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html.
[16]Sheryl G. Stolberg, Kavanaugh is Sworn in After Close Confirmation Vote in Senate, N.Y. Times(Oct. 6, 2018), https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supreme-court.html.
[17]See Ian Millhiser, The Fight To End Roe V. Wade Enters Its Endgame Next Week, Vox(Sept. 27, 2019), https://www.vox.com/2019/9/26/20873873/supreme-court-gut-roe-v-wade-next-week-abortion (arguing that the Court will almost certainly uphold the Louisiana law and either overrule Roe v. Wade or, at the very least, sanction TRAP laws).
[18]Jessie Hellmann, Supreme Court Abortion Case Poses Major Test For Trump Picks, Hill(Oct. 5, 2019), https://thehill.com/policy/healthcare/464475-supreme-court-abortion-case-poses-major-test-for-trump-picks.
[19]Adam Feldman, Empirical SCOTUS: Is Kavanaugh as conservative as expected?, SCOTUSblog(Apr. 3, 2019), https://www.scotusblog.com/2019/04/empirical-scotus-is-kavanaugh-as-conservative-as-expected; see also Nielson v. Preap, 139 S. Ct. 954 (2019); Bucklew v. Precythe, 139 S. Ct. 1112 (2019).
[20]Adam Feldman, Empirical SCOTUS: Is Kavanaugh as conservative as expected?, SCOTUSblog(Apr. 3, 2019), https://www.scotusblog.com/2019/04/empirical-scotus-is-kavanaugh-as-conservative-as-expected/.
[21]Compare Carter Sherman, Neil Gorsuch Just Gave the First Glimpse of How He Might Rule on Abortion Issues, Vice News (Mar. 20, 2018), https://www.vice.com/en_us/article/gymp4b/how-will-neil-gorsuch-rule-on-abortion-issues-in-national-institute-of-family-and-life-advocates-v-becerra (arguing that Gorsuch is an “ultra-conservative justice” who is “considered a clone of the late Antonin Scalia”), with Amy Howe, Gorsuch on Abortion, Religion and Reproductive Rights, SCOTUSblog (Mar. 9, 2017), https://www.scotusblog.com/2017/03/gorsuch-abortion-religion-reproductive-rights/ (arguing that Gorsuch’s stance on abortion is “harder to predict,” although it is more likely than not he would side with the conservative justices).
[22]Jessie Hellmann, Supreme Court Abortion Case Poses Major Test For Trump Picks, Hill (Oct. 5, 2019), https://thehill.com/policy/healthcare/464475-supreme-court-abortion-case-poses-major-test-for-trump-picks.
[23]See Kevin Walsh, Symposium: The Constitutional Law of Abortion After Whole Woman’s Health – What Comes Next?, SCOTUSblog (June 28, 2016), https://www.scotusblog.com/2016/06/symposium-the-constitutional-law-of-abortion-after-whole-womans-health-what-comes-next/ (arguing that “the identity of the judges will continue to matter more than anything else to the outcome in abortion-law cases”).