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A Viewer's Guide to Outcomes in June Medical Services v. Gee
Tomorrow, the Supreme Court will hear the first significant abortion case since Justices Kavanaugh and Gorsuch joined the Court. You can read a lot of great analysis about it at SCOTUSBlog, including a symposium article by my friend and brilliant lawyer Teresa Collett.
This blog will simply attempt to describe the range of plausible outcomes in June Medical Services v. Russo (known until quite recently as June Medical Services v. Gee). After tomorrow's oral arguments, we will have a much clearer idea of where the Court is heading. The pro-choice mainstream media will scream in horror at the top of its lungs under all plausible outcomes. The headline "The End of Roe is Nigh" will appear regardless of whether the end of Roe is, in fact, nigh. I want to post a few insights about the case now to help you set expectations and put the media's forthcoming tantrum in perspective.
June v. Gee revolves around a series of medical regulations the state of Louisiana has imposed on abortion clinics. (Interestingly, the regulations were imposed in large part by Louisiana's strong contingent of pro-life Democrats, God bless 'em.) These regulations are in many ways similar to regulations imposed by Texas several years ago. The Supreme Court struck down the Texas regulations in the 2016 case Whole Women's Health v. Hellerstedt.
Hellerstedt was a 5-3 decision, with Justice Scalia absent (due to being dead). Leftist justices voted to strike down the regulations; right-wing justices voted to uphold them. Justice Kennedy cast the deciding vote and sided with the left-wingers.
But Scalia and Kennedy have both been replaced with conservative justices. Meanwhile, the 5th Circuit Court of Appeals has ruled that the Louisiana regulations are actually not that close to the Texas regulations and shouldn't be affected by Hellerstedt.
What will the new Supreme Court do? Will they accept Hellerstedt as settled precedent? If they do, will they hold the new regulations should also be struck down, or are they different enough to be upheld? Will they finally act to minimize (or eliminate) the demented precedents of Roe v. Wade and Planned Parenthood v. Casey? Will they try and wriggle out of the whole question on a technicality, and both sides live to fight another day? Have pro-lifers finally succeeded in restoring the Supreme Court to correct constitutional rulings on abortion... or were all those votes for pro-life presidents and senators over the past twenty-five years ultimately in vain?
There are a few plausible possibilities:
REGULATIONS STRUCK DOWN (DEFEAT): In this outcome, the pro-lifers lose. This would be pretty bad. First, it would foreclose a huge area of legislation that pro-lifers have used to protect human life (unborn and born). Second, it would be a strong indication that the Court will be unwilling to consider more aggressively pro-life laws, like the heartbeat laws passed in several states, and even fairly routine medical regulations will be subject to years-long judicial review by partisan judges before coming into effect. Third, for the Louisiana regulations to be struck down, the Court would have to reaffirm Hellerstedt, a narrowly decided precedent from just a few years ago -- a far weaker precedent than Roe itself. That would mean that, fundamentally, nothing has changed on the Supreme Court with Justice Kennedy's departure. Abortion would still be an unlimited constitutional right trampling over state laws and regulations of all kinds, and there'd be not a damn thing we can do about it short of revolution. The past twenty-five years of pro-life campaigning to rescue the judiciary would have all been for nought.
I don't think it's especially likely the regulations will be struck down like this, but pro-lifers have been burned before: nobody expected Planned Parenthood v. Casey to loudly reaffirm abortion rights, either, but that's exactly what happened. Justice Kavanaugh's judicial philosophy remains unclear to me, and everyone should be nervous about Justice Robert's deep desire to preserve so-called "respect for the Court" among a left-wing press that holds him in complete contempt regardless. I'm nervous about this outcome.
This is the only outcome where the media won't completely freak out, although they will still write Very Very Angry pieces about how horrible it is the the Court, in upholding Hellerstedt, failed to actually affirm the so-called constitutional right to an abortion.
REGULATIONS UPHELD BUT HELLERSTEDT PRESERVED (MINOR VICTORY): The Court could do what the Fifth Circuit did: obey the Hellerstedt precedent (keeping it on the books) but in a really narrow way (making it much less of an obstacle to pro-life regulations). This would give states considerable flexibility to regulate abortion clinics while allowing the Court to say that they respect precedent. Personally, I think this is the one of the most likely outcomes, because it's one of Justice Roberts' very favorite moves, especially if he can bring over a vote from the other side to support him.
And, you know what? It's an okay outcome. Not great, because it signals they are still too concerned about political considerations to actually uphold the Constitution. Also not great, because the Hellerstedt precedent involves a laborious and highly subjective legal test, which will be applied by ideological judges on both sides every single time a clinic regulation is passed... but, still, upholding the Louisiana regulations should give states a free hand to regulate abortion clinics (many of which cannot survive adequate medical regulation), and suggests at least the possibility that the judiciary will allow cautious, well-considered moves toward other abortion restrictions.
The media will completely freak out if this happens, but it will be mostly hype. A small victory for pro-lifers that enables us to sometimes enact broadly popular measures like the Louisiana regulations will continue things on their current trend (clinic closures are up, abortions are down), but won't fundamentally alter the trajectory of the American abortion debate. The media is just used to the Left controlling the Court, as it did for the entire period between 1938 and 2018, and is taking the transition very badly.
DISMISSED FOR LACK OF STANDING (BACKDOOR VICTORY): Pro-lifers have advanced the very interesting argument that the plaintiffs in this case (abortion clinics who are suing on behalf of the women they serve) do not have legal standing to sue over this regulation, because the interests of the clinics and the interests of the women they're supposedly representing are too divergent. (And women who oppose the regulations could just file lawsuits themselves.) If the Supreme Court agrees, the case would be dismissed without ruling on the underlying question of whether Hellerstedt was correct. The Louisiana laws would be upheld by default... although some individual Louisiana woman (or women) could file a future lawsuit, sending the case through the entire court system all over again. (This case was originally filed in August 2014, so... see you in six years!)
It would not be a bad outcome for pro-lifers, though, because abortion clinics have used the "we are suing on behalf of women" excuse to challenge every abortion law we've passed in every state for thirty years, bringing their massive reserves of cash and organization to bear on our ragtag movement. Forcing them to at least recruit actual clients who are actually able to claim some kind of legally cognizable injury from abortion regulations could make suing against every pro-life law a bit less legally feasible. And it is sort of weird that abortion clinics seem to be an exception to regular court rules about standing. Still... while many pro-lifers are cheering for this outcome, it doesn't seem worth it to me, when, really, Hellerstedt needs to go.
I think there's a very good chance of this outcome. It's probably the most likely outcome. Roberts will be looking for an out on this case (as discussed above). He may be able to win somebody on the other side over to this opinion, maybe Kagan, therefore showing a bipartisan consensus, which he loves. And pro-lifers are actively campaigning for this in recent legal briefs, so it won't be interpreted as a betrayal the way either of the lesser outcomes would be.
The media will moderately freak out if this happens, but it will be mostly hype, and they'll be mostly too confused about the implications to really let loose about it.
(UPDATE: A lawyer friend of mine, whom I greatly respect, and who is routinely involved in national abortion litigation (including before the Supreme Court), thinks I am underselling the effect of this outcome. If clinics don't have standing, certain kinds of regulations, including these regulations, could become very difficult or even impossible to sue against, because few/no individual mothers would have standing. The Obama Administration used this "nobody has standing" trick a few times to violate the Constitution, as in the suspension of the employer mandate, so it would be nice to see this used to prevent constitutional shenanigans in the judiciary for once. She spoke of other benefits to the pro-life legal movement as well. I'm still getting a handle on what exactly this outcome would mean, but I trust this friend implicitly. A backdoor win on standing might be terrific.)
HELLERSTEDT OVERTURNED (MAJOR VICTORY): As I've mentioned, the Court ruled 5-4 in Hellerstedt (technically 5-3 because Scalia died) to strike down clinic regulations. The 5th vote was Kennedy. Roberts strongly opposed the decision at the time, and he joined a scathing dissent.
Kennedy is gone now. If Kavanaugh is the man we think he is based on his lower-court opinions, and Roberts isn't a coward who abandons his own published opinions, they really should overturn Hellerstedt. Under any reasonable analysis of stare decisis, Hellerstedt just doesn't have many of the elements that make it a strong precedent, so even fear of overturning precedent shouldn't hold Roberts and Kavanaugh back.
Practically speaking, overturning Hellerstedt would not just deliver a victory to women and children in Louisiana; it would also make it much easier for other states to pass these medical regulations on abortion clinics, without fear of a court striking them down. It would signal to pro-life activists that the Court is willing to reconsider and overturn various non-Roe abortion precedents. That would encourage states across the country to pass new legislation finding new ways to push the envelope, eventually undermining Roe and Casey to the point where it becomes "unworkable" and they're overturned, maybe ten or fifteen years from now. So this wouldn't be the perfect outcome, but it would be very good.
It had better be! It's why our side put President Trump in office, and God knows the cost of doing that has been terribly high. Based on Kavanaugh's testimony about precedent in his hearings (before the rape allegation consumed everyone's attention), I think this is how he would like to approach it. I don't think Kavanaugh is opposed to overturning Roe, but he wants to build a lengthy judicial line of contrary precedents before finally acknowledging Roe's incompatibility with the Constitution. So I consider this the last of the three most likely outcomes, and the only one I would be really, really happy with.
If this happens, the media will completely freak out, with some justification. They'll call it the imminent end of Roe, when really it's more like pro-lifers have finally found the first chink in Roe's judicial armor plating since we won Gonzales v. Carhart 13 years ago. (The media had a nice solid freak out about that, too... but here we are, it's 2020, and Roe is still on the books.) It will adjust the trajectory in the abortion wars in favor of life, but only modestly... at least for now.
CASEY OVERTURNED (DECISIVE VICTORY): The Court could go further than overturning Hellerstedt. Hellerstedt is built on Casey, the 1992 precedent that made "undue burden" the standard by which all abortion regulations are judged. It would not be shocking for the Court to revisit Casey, 27 years later, and modify its central holdings. The "undue burden" standard has repeatedly proven vague and unworkable for an entire generation now, with courts swinging back and forth on its meaning based on their partisan makeup, and that's the kind of thing that ordinarily invites Supreme Court re-review (at least outside the bizarro world of abortion law).
Casey is the worst Supreme Court decision of all time (as Michael Stokes Paulsen has correctly argued elsewhere), so it'd be great to see it gone. Killing off Casey and imposing some new set of rules on abortion would be incredible, and, depending on what the new rules are, it might be effectively the same thing as killing off Roe without the Court actually admitting that's what they're doing. This is probably the best we can reasonably hope for from Roberts and Kavanaugh... but, again, depending on how they write the opinion, they could use this to kill Roe in all but name, so we wouldn't really have anything to complain about.
ROE OVERTURNED (TOTAL VICTORY): Obviously, the Holy Grail. In this outcome, the Supreme Court just comes out and admits what we've all known, on all sides, since 1973: there is no constitutional right to abortion. Harry Blackmun made the whole thing up. Abortion would be thrown entirely back to the states, and all of a sudden the pro-life movement, having won a great victory, is thrown into battle on 50 different state fronts, in a huge variety of ways. (After all, those states with heartbeat bills and trigger bans on the books suddenly have no abortion -- do they have enough crisis pregnancy centers to take care of the sudden surge in mothers with crisis pregnancies?)
For either of these last two outcomes, the media freakout would be justified. The media in this country is deeply committed to the constitutional right to a dead child, and overturning either Roe or (depending on how it's done) Casey would effectively end that supposed right. (States could still protect it, and many would.)
This honestly could happen. It's certainly not likely, I don't even think it's wise to get your hopes up... but it could. Indeed, I guarantee you that Justice Thomas will write an opinion calling for the end of Roe regardless of the outcome. I will bet you five dollars that that opinion is joined by both Alito and Gorsuch. That's 3 votes to kill Roe in your pocket. But you need 5 for a majority.
Roberts is a sane man who knows that Roe is bad law, but he's also intensely anti-confrontational and intensely worried about the Court's prestige. And Kavanaugh is still something of an unknown quantity. So I am not holding my breath in hopes that June Medical Services v. Gee will herald the end of Roe. I'm hoping for -- and expecting -- a modest victory that helps us push the battle for unborn rights another step forward. But you shouldn't be caught entirely flat-footed if, next June, Roe v. Wade suddenly falls on the ash heap of history where it belongs.