U.S. Supreme Court, 5-4: Abortion Providers Don’t Need Hospital Admitting Privileges

The U.S. Supreme Court today struck down a Louisiana law requiring an abortion provider to have admitting privileges at a hospital within 30 miles of the abortion facility. The case was June Medical Services v. Russo. The vote was 5-4, with Justice Stephen Breyer writing for a majority that included Justices Ginsburg, Sotomayor, Kagan, and Chief Justice Roberts.

Justice Breyer concluded his opinion by saying that the Louisiana law placed a “substantial obstacle” between a woman and an abortion, thus making it in violation of the 1992 Casey decision. Anything that happens in the wake of an abortion – hemorrhaging, for example – is apparently none of the Court’s concern.

Breyer also cited the 2016 Whole Women’s Health decision, regarding a Texas law, in striking down Louisiana’s statute.

Separate dissents were filed by Justices Alito, Thomas, Gorsuch, and Kavanaugh.

The Louisiana law did not affect the legality of abortion itself, did not shutter any abortion facilities, and did not address the right to life. It was supposed to be strictly about women’s health. Women’s health lost. The June Medical decision, however Justice Breyer views his handiwork, is about the rights of abortion providers, period.

Chief Justice Roberts was the swing vote

The standard of care (so to speak) for abortion excludes the need for the abortion provider to have hospital admitting privileges in case a patient suffers a complication. Any medical professionals who take issue with that can complain to the Justices.

Don’t bother with Justices Breyer, Ginsburg, Sotomayor, and Kagan. Go straight to Justice Roberts. He agreed with the decision, but not for the same reasons as his fellow majority Justices, each of whom is well-known to be abortion-friendly. He concluded that the Louisiana law had to be overturned because the Court had ruled in 2016 that a similar Texas law be overturned. Stare decisis, don’t ya know. “The question today however is not whether Whole Woman’s Health [the Texas case] was right or wrong, but whether to adhere to it in deciding the present case.”

One wonders if this guy would have voted against Brown v. Board of Education back in the 1950s, since it overturned Plessy v. Ferguson, the “separate but equal” case that kept racial segregation in place for decades. Brown was a unanimous decision. Can you imagine a dissent like the one Roberts released today? The question today is not whether Plessy was right or wrong

I’m trying to imagine the Chief Justice as he tried to figure out how to agree with the majority without looking like he agreed with it. He could have just signed on to Breyer’s opinion without comment, as did the women on the Court. But no. He wanted to make sure everyone knew his hands were tied by stare decisis.

He could have arrived at a different conclusion if he had cared about a glaring procedural question in the case: the standing of the plaintiffs. Did abortion providers as a group have any business bringing the case, without a single named patient’s rights having been violated? The Court today said yes. A different conclusion by Justice Roberts would have changed the outcome.

I wish I could take credit for a Facebook post from an acquaintance of mine, posted a few minutes after the June Medical decision was released: “Are there any statues of Justice Roberts? Asking for a friend.” With nothing to pull down, I’m left with objecting to his concurrence.

Excerpts from four minority views

Justice Clarence Thomas dealt with the issue of standing at the very beginning of his 20-page dissent. “As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own.” [emphasis added]

Thomas’s dissent didn’t rest on procedure alone, though. Earlier Court decisions on abortion “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.”

Next up was Justice Samuel Alito, opening his dissent – respectful dissent, of course – by blasting his colleagues’ reasoning. “The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt [striking down portions of a Texas law in 2016]…, and it’s true they have something in common. 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.”

The most recently-confirmed Justices weighed in as well. June Medical is hardly a case where either one was called upon to rule on the right to life, but their dissents bear consideration nonetheless.

Justice Gorsuch: “The judicial power is constrained by an array of rules. …Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be. Today’s decision doesn’t just overlook one of these rules. It overlooks one after another….To arrive at today’s result, rules must be brushed aside and shortcuts taken.”

I’ll leave finer minds than mine to ponder how that squares with Gorsuch’s recent opinion that sex includes gender identity under Title VII.

Justice Kavanaugh, you may recall, got a confirmation vote from Sen. Susan Collins (R-ME) only after assuring her that he would respect Roe. Not a promising commitment. But in his brief dissent in June Medical, he agreed with one of Justice Alito’s points, that the factual record behind the case was incomplete. There simply weren’t enough facts in the record for him to be willing to throw out a duly enacted state law.

effect on new hampshire

New Hampshire has no requirement that abortion providers have admitting privileges, or even that they have any medical credentials whatsoever. In the last quarter-century, women’s health has never been enough of a concern to change that. June Medical therefore doesn’t overturn anything New Hampshire has on the books.

What will happen is that attempts to rectify New Hampshire’s situation will face an even steeper uphill battle than before.

Edited to clarify that the overturned law was “supposed to be” strictly about women’s health.