June Medical Services v. Russo (formerly Gee) is the first major abortion case before the Supreme Court since Justices Gorsuch and Kavanaugh were appointed to the bench. Before this month ends, a decision expected in the case will be particularly useful for forecasting the future of abortion in the United States. Advocates on both sides of the issue are looking to see how the court and its new 5-4 conservative majority will handle state laws restricting abortion for the second time.
First, Predictions: The Supreme Court is likely to affirm the 5th Circuit Court of Appeals decision and allow Louisiana’s Unsafe Abortion Protection Act (Act 620) to stand. A victory would not only protect women from the dangers of under-regulated abortion vendors, but also pave the way for future cases challenging the right to abortion without legal limits.
The Louisiana law under scrutiny requires physicians committing abortions to have admitting privileges at a hospital within 30 miles of their facility. If something goes wrong during the procedure, or the woman experiences complications after the fact, the physician can quickly check her in to the hospital and continue to follow up with her care. Basically, admitting privileges are an emergency plan, not needed for all, but vital when a woman’s life is on the line.
The main issue is whether the court will follow the direction in Whole Women’s Health v. Hellerstedtin 2016, which did not allow Texas’ health and safety standards to stand, in part because they said that more evidence was needed to determine whether the laws helped women or simply created an “undue burden” to abortion.
Justice Clarence Thomas in his dissent noted that the decision to reject the health and safety standards was confusing, writing, “The majority seriously burdens States, which must guess at how much more compelling their interests must be in order to pass muster and what ‘common sense inferences’ of an undue burden this Court will identify next.”
Key differences between how Texas and Louisiana handled their laws will likely impact the ruling to come.
In Texas, not all surgical facilities were required to have admitting privileges at local hospitals, while in Louisiana, admitting privileges were required of all other medical facilities performing similar out-patient surgical procedures. The abortion industry had been the exception to the rule for years, despite a troubling track record of dangerous conditions.
The state’s three abortion clinics have incurred over 35 health and safety violations over the last ten years, including failing to properly disinfect instruments and to properly train staff administering IVs.
As noted in the Washington Examiner: “Bossier City Medical Suite, a plaintiff in the action, surrendered its license and shut its doors in 2017 because it had performed abortions on at least five minor children and did not file the required statutory rape reports with the authorities. Another abortion facility in the lawsuit, Delta Clinic of Baton Rouge, was closed for a time because a patient suffering from severe bleeding after an abortion was rushed to a local hospital. The clinic was cited in violation of the law when authorities discovered it did not have sufficient supplies to stabilize the patient’s bleeding. Recently, a medical emergency was reported in a New Orleans abortion facility during the COVID-19 pandemic — yet another documented case revealing the tendency of abortion clinics to put profits before patient safety.”
As troubling as those facts are, no one can predict how the justices will rule.
Both Kavanaugh and Gorsuch were reluctant to address their stance on abortion directly during their confirmation hearings, and neither has judged enough cases directly related to the issue to establish a pattern. However, Kavanaugh voted to let Act 620 take effect even while it was being challenged in the courts. Gorsuch has voted favorably on socially conservative issues such as allowing employers with religious objections to be exempted from providing their employees with contraception. His 2006 book The Future of Assisted Suicide and Euthanasia also demonstrates that he holds the right to life very deeply. It’s fair to predict that both will thoughtfully consider the value of the law.
Chief Justice Roberts is expected to be the deciding vote in a 4-4 tie between the conservative and liberal justices. Based on his questions during the March 4th hearing, Roberts will consider the issue of abortion access on a state-by-state basis, seeming to take into account the differences in the application of the law between Louisiana and Texas.
Walter Weber, senior council for the American Center for Law and Justice, commented in a recent digital presentationhosted by Students for Life of America that June v. Russo is a “small step” in the protracted battle over abortion. Other cases currently in the legal pipeline address medical standards and admitting privileges at abortion clinics, and the decision in June will give a framework for how the Supreme Court may decide a number of issues, including bans on abortion at specific stages of development or for characteristics like the baby’s sex or diagnosis of disability.
At issue is whether this newly configured Supreme Court will allow states to limit abortion or regulate it for patient safety or whether abortion will continue to be set apart in the law as untouchable, even as women are harmed by those profiting from it.
Rachel Haering is a former Students for Life of America Wilberforce Fellow and former president of Students for Life at California State University, Long Beach. She graduated from Long Beach State with a bachelor’s degree in English in the spring of 2020.