On March 4, 2020, the Supreme Court heard over an hour of intense oral argument for June Medical Services v. Russo, the first major abortion case before the Court since President Trump appointed conservatives Neil Gorsuch and Brett Kavanaugh. With so much at stake before a new ideological makeup on the court, women’s rights advocates around the world are holding their breath.
The Court is considering multiple legal questions here. One major issue is a Louisiana law that requires doctors who provide abortion services to have admitting privileges at hospitals within thirty miles. Essentially, a doctor will need to seek the right to admit their patients into local hospitals in order to perform abortions, a right that can be difficult to obtain. Anti-abortion supporters say the law is a safety measure, but pro-choice advocates disagree. They feel that the law merely restricts abortion access, has no actual medical benefit, and will set a dangerous precedent for further abortion restrictions.
The court will consider whether this can be legally mandated, and also consider if it violates access to abortions under Roe v. Wade. If the law stands, other states may begin to enact their own versions, possibly leading to widespread clinic closings.
The second question is perhaps even more impactful than the first and could have a massive impact on abortion access in the United States. Louisiana argues that abortion clinics and doctors should not have the right to bring abortion cases to court; only patients themselves should. If the court agrees, patients going forward would basically have to wage legal battles on their own. Clinics and healthcare providers have been able to bring cases into court as third parties because they have a close relationship with the people involved, but Louisiana is asking the court not to allow this.
In 2016, the court struck down an almost identical law in Texas, holding that it violated the Constitution by levying an undue burden on women seeking an abortion (Whole Woman’s Health v. Hellerstedt). However, that was an almost entirely different court. Antonin Scalia’s seat was still vacant, and Anthony Kennedy had not retired. Neil Gorsuch was appointed to replace Scalia, a staunch conservative, but Kennedy’s seat was filled by Brett Kavanaugh, which means a conservative now sits in the spot of a swing vote. With the court’s new conservative majority, advocates hope that 2016’s precedent will hold strong.
What really makes this a nail-biter is the court seems divided, meaning the deciding vote may come down to Chief Justice John Roberts. While Roberts is widely regarded as a solid conservative, he has sided with his liberal colleagues on numerous cases. It’s worth noting that even though he dissented from the court’s decision in the 2016 case, that doesn’t necessarily mean he’ll do it again. During oral arguments, he seemed to lean towards protecting the precedent from Whole Women’s Health, indication advocates hope will manifest in the court’s holding. Even though the court is, in theory, independent and apolitical, Roberts may also have an interest in preserving trust in the judiciary. He would likely seek to do so by protecting its precedent.
One of the strongest voices on the bench is Ruth Bader Ginsburg, which should come as no surprise for her longtime fans. The Notorious RBG has built an illustrious career and legacy on protecting the rights of women and has long been hailed as a feminist icon. She sparred with the state’s lawyers on every issue, dismantling argument after argument. Advocates hope that Ginsburg’s artful takedown of the law’s key points will be effective in pulling the court to the liberal side.
The court is expected to render a decision in June, and no one really knows what it’s going to look like. One thing, however, is certain: if the court allows the Louisiana law to stand, it will fundamentally transform abortion access in the U.S. for years to come, and might even end the Roe v. Wade era.