On Monday, the Supreme Court struck down a 2014 Louisiana anti-abortion law that would effectively leave one abortion clinic open in the state. The law required abortion providers to hold “active admitting privileges at a hospital” within 30 miles of the location “at which the abortion is performed or induced” and defines abortion providers holding “active admitting privileges” as being “a member in good standing” of the hospital’s medical staff “with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”
Before the act was instated, five abortion clinics and four abortion providers sued the state of Louisiana, citing its unconstitutionality on the grounds that it “imposed an undue burden on the right of their patients to obtain an abortion” and asked for a preliminary injunction on the law. The District Court provisionally forbade the state from enforcing the act’s penalties and directed the doctors to continue applying for privileges so the court could use it as evidence to consider.
18 months later, the District Court found the law to be unconstitutional on three grounds. The first holds that, contradictory to what the state had claimed, the law does not provide any significant benefit to women’s health. Secondly, that the required conditions for admitting privileges have made and will continue to make it impossible for abortion providers to obtain those privileges, thus preventing women from attaining abortions. And finally, that this exorbitant prevention places a substantial obstacle for women seeking abortions. Because the law poses an undue burden on women, the District Court found, it is unconstitutional.
On appeal by the state to the Fifth Circuit Court of Appeals, the court reversed the District Court’s decision not on its interpretation of the legal standards that apply to abortion cases, but rather on its factual findings.
In a 5-4 decision, the Supreme Court found that the District Court’s ruling stands. Justice Breyer, joined by Justices Kagan, Sotomayor, and Ginsburg, wrote the majority opinion.
Justice Breyer notes in the opinion that the language of the Louisiana law “is almost word-for-word identical” to a Texas law that also required “active admitting privileges,” and which was argued before the Court in 2016. In that case, Whole Woman’s Health v. Hellerstedt as well as taking precedent from Planned Parenthood v. Casey in 1992, the Court found that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” and are therefore “constitutionally invalid.” Because both the Louisiana law and the Texas law are so similar in language, following this precedent, the Court came to the same conclusion in this case.
But what is different about June Medical Services is that its evidence is more specific as a result of the District Court’s surveying of six abortion doctors who applied for those privileges. Reversing the Circuit Court’s claims that the District Court’s decision was wrong based on factual findings, Justice Breyer reviews the District Court’s findings and upholds their factual merit on the grounds that the “active admitting privileges” required by the law do actually place a undue burden on women seeking abortions.
For example, one doctor, a board-certified OB/GYN with nearly 40 years of experience testified in the District Court that in the past five years, only two of his patients required hospitalization. Because of one hospital’s requirement that he produce data on “patient admissions and management, consultations and procedures performed,” he could not receive privileges to perform abortions despite the fact that his procedures are routinely safe.
In some cases, evidence showed that hospitals denied granting privileges to abortion providers solely based on that hospitals’ subjective opposition to abortion. Based on these and other evidence produced, Justice Breyer, echoing a statement made in the Whole Woman’s Health case concludes that, “that [the] conditions on admitting privileges… served no “‘relevant credentialing function,’” and are thus unconstitutional.
More so, however, Justice Breyer demonstrates that if Louisiana’s law were to be instated, the required standards to qualify for admitting privileges that are determined by the hospitals would shut down all but one abortion clinic in the state. That would leave one doctor left to serve over “10,000 women annually” and who would only be able to “absorb no more than about 30% of the annual demand for abortions in Louisiana.” As stated in the District Court, Justice Breyer reiterates that the burden of the lack of access to abortion services, “would fall disproportionately on poor women, who are least able to absorb them.”
The Supreme Court upheld the merit of these findings as well as other evidence used in the District Court’s decisions and concluded that these admitting-privilege requirements “would place substantial obstacles in the path of women seeking an abortion in Louisiana,” thereby “drastically reduc[ing] the number and geographic distribution of abortion providers” and “making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could.”
Holding true to stare decisis, Chief Justice Roberts voted alongside Justices Breyer, Kagan, Sotomayor, and Ginsburg, making him the decisive vote in this case. Having dissented in Whole Woman’s Health and making explicit in his statement that he “continues to believe that the case was wrongly decided,” Justice Roberts issued a concurring statement, saying “Because Louisiana’s admitting privileges requirement would restrict women’s access to abortion to the same degree as Texas’s law, it also cannot stand under our precedent.”
But Justice Roberts is sure to say that the decision in Whole Woman’s Health incorrectly used a precedent set by Casey that states that, as he summarizes, “the State may not impose an undue burden on the woman’s ability to obtain an abortion.” Implicit in the Court’s decision in Whole Woman’s Health, as Justice Roberts sees it, is a “‘balancing test in which unweighted factors mysteriously are weighed,’” and is thereby disallowing the equality of treatment between the two choices. But even despite this opinion of previous cases, because the language of June Medical Services is so similar to that of Whole Woman’s Health, Justice Roberts states, “I cannot view the record here as in any pertinent respect sufficiently different from that in Whole Woman’s Health to warrant a different outcome.”
It is not that Chief Justice Roberts believes that the evidence actually places an undue burden onto women seeking an abortion that led him to concur with the majority; rather, because the precedent set in Casey was applied to Whole Woman’s Health and because the Supreme Court in that case ruled against the Texas law, which set its own precedent, his abidance by that precedent required that he concur with the majority.
But Justices Thomas, Alito, Gorsuch, and Kavanaugh see the rule of precedence differently. In their dissenting opinions, Justice Thomas argues that “Stare decisis is ‘not an inexorable command…,’ and this Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable,” while Justice Alito echoes Chief Justice Roberts when he says, “Whole Woman’s Health simply misinterpreted Casey, and I agree that Whole Woman’s Health should be overruled insofar as it changed the Casey test.” Whereas Chief Justice Roberts wholeheartedly abides by precedent, the dissenting Justices argue that the Justices in the plurality’s use of stare decisis is unfounded and misinterpreted.
In addition to their interpretations of precedent, the Justices in the dissent also argue that Louisiana’s law commits to ensuring that, through the standards established in the “active admitting privileges,” only competent doctors are performing abortions. Justice Alito argues in his dissent that “In deciding whether to grant admitting privileges, hospitals typically undertake a rigorous investigative process to ensure that a doctor is responsible and competent and has the training and experience needed to perform the procedures for which the privileges are sought.”
Likewise, Justice Gorsuch states, “In fact, the Louisiana legislature passed Act 620 only after extensive hearings at which experts detailed how the Act would promote safer abortion treatment—by providing ‘a more thorough evaluation mechanism of physician competency,’ promoting ‘continuity of care’ following abortion, enhancing inter-physician communication, and preventing patient abandonment.”
Given the six separate arguments filed by all six male Justices on the Court defending their stance on this abortion case, it’s interesting to note, that not a word is written from any of the female Justices.
