by Benjamin Clapper, Executive Director, Louisiana Right to Life
On Wednesday morning, March 4, 2020, the Supreme Court of the United States heard oral arguments in June Medical Services v. Russo. The case centered on our 2014 Unsafe Abortion Protection Act that requires abortion physicians to have admitting privileges at a local hospital within 30 miles of the abortion facility. We presented the need for this law in 2014 to then Rep. Katrina Jackson after realizing that abortion facilities were the ONLY outpatient surgical facilities in Louisiana not required to have physicians with local hospital privileges.
I was happy to be present at the oral arguments, along with our Board Member Sharon Rodi, our North Louisiana Director Amanda Nottingham, and many other key pro-women and pro-life leaders, including Louisiana Sen. Katrina Jackson and Dorinda Bordlee of the Bioethics Defense Fund. We were also happy to have with us former New Orleans Saint Benjamin Watson.
We congratulate Louisiana Solicitor General Liz Murrill on her strong defense of Louisiana’s law, even in the face of rapid-fire aggressive questions from the four liberal Justices on the bench. The United States Department of Justice also weighed in, with Deputy Solicitor General Jeffrey Wall speaking for 10 minutes in support of our law. Both Murrill and Wall made a compelling case in the face of four Justices committed to an opposing decision.
Julie Rickleman, the attorney for June Medical Services, the abortion business in Shreveport that operates under the name of Hope Medical Group for Women, presented a competent argument for her client, resting on the Court’s precedent, the “consensus” of the pro-abortion American Medical Association (AMA), and her four allies on the Court seemingly focused on assisting her throughout.
While the oral arguments certainly gave no clear clues into what a final decision may look like when the Justices release a decision in late June, it did provide some helpful insights into the Court. Let’s take a look.
Justices Ginsburg, Breyer, Sotomayor, and Kagan again showed their preference that the Court do everything it can to protect the interest of abortion and the businesses that sell abortion. They made no bones about their contempt for Louisiana’s law.
In the face of evidence that Louisiana abortion facilities had countless health violations, such as not sanitizing ultrasound probes between patients, not having IV fluid, and incidents of uterine puncture, the Justices dismissed these concerns, saying the District Court already decided the violations were not worth taking seriously. Note that the district court judge who made this decision was also an Obama-appointed judge.
These Justices seemed offended by the idea that admitting privileges for abortion physicians serve ANY health and safety interest. They were exceedingly sympathetic to Rikelman’s preference for the Court to declare any law requiring hospital privileges to be unconstitutional, even after she was peppered with questions from Chief Justice Roberts and Justices Alito and Kavanaugh. Certainly, the continual mantra from Rikelman that the AMA and the American College of Obstetricians and Gynecologists (ACOG), two decidedly pro-abortion organizations, were opposed to privileges for abortion businesses furthered this narrative. Sadly, the AMA’s own Code of Medical Ethics Opinion (9.5.2), states, “The purpose of medical staff privileging is to improve the quality and efficiency of patient care in the hospital.” Just like these Justices, lower standards apply when it comes to abortion.
Deputy General Wall aptly reminded the Court that except for abortion, privileges are “fairly uncontroversial in the medical field.” This underlines what we have been saying since 2014: In Louisiana, all other physicians in outpatient surgery settings must have privileges. To our knowledge, this has never been a controversial policy. Physicians are never rallying against this supposed onerous burden. This law is simply about having abortion physicians follow the same rules that apply to everyone else. But when it comes to abortion, the Supreme Court has historically had a soft spot for allowing dangerous loopholes. This case provides a unique opportunity to end what Bioethics Defense Fund’s Nikolas Nikas refers to as the “abortion distortion.”
Acting more like a legislator than a judge, Justice Ginsburg repeatedly asked why 30 miles is used as the geographical limit for where privileges can be obtained. Her assumption was that complications, if they occur, would only occur when the woman is back at her home (Justice Ginsburg was focused on complications as they result from medication abortions, or RU-486. But the majority of abortions in Louisiana still are surgical abortions). Did Justice Ginsburg read the record that shows that complications DO happen at abortion facilities during surgery, including as recently as last March when a woman was hospitalized after hemorrhaging in the Baton Rouge Delta Clinic for Women?
Furthermore, Justice Ginsburg received clarifying answers from both Murrill and Wall. First, they said, complications do occur at the facility and must be addressed locally, and second, 30 miles is consistent with the hospital privilege requirements for other outpatient surgery centers. Justice Ginsburg was seemingly unwilling to acknowledge these responses.
Murrill faced a continual barrage of questions from these four justices, with interruption after interruption during her answers. And even more telling, these four Justices came to the aid of abortion attorney Rickleman by lobbing softball questions at her, questions that were copied and pasted from a pro-abortion playbook.
Justice Ginsburg even stated the classic and highly disputed pro-abortion line that “abortion is far safer than childbirth.” For a Justice to insert that sort of propaganda is, frankly, a poor representation of the intellectual stature of the Court. During Louisiana’s defense, the other five Justices mostly remained quiet, letting the abortion Justices fire all their shots at Murrill.
Justice, as they say, is supposed to be blind. These Justices may be excellent in many other areas of the law, but when it comes to abortion, “blind” doesn’t exactly fit the bill.
Justice Alito strongly pushed abortion attorney Rickleman on the questions of third-party standing right out of the gate, highlighting the abortion industry’s “conflict of interest” in this case.
This abortion facility, claiming it is representing women, is trying to fight the policies intended to protect the very women it claims to represent. Alito questioned Rickleman on this matter, and Rickleman stated there is no conflict of interest, continually referring back to the 2016 Whole Women’s Health conclusion that admitting privileges provide no health benefits. The abortion Justices came to Rickleman’s defense by stating that at least eight previous Supreme Court cases were decided under this third-party standing, and if the Court were to rule with Louisiana that the abortion facilities did not have standing, these previous cases would have to be overturned. Both Justice Alito and Deputy General Solicitor Wall reminded the court that the direct question of third-party standing, and the potential conflict of interest, was never before the Court in those cases, and the Court only decides on the controversies brought directly before it.
Justices Roberts and Kavanaugh remained quiet on standing and instead focused on the issue of benefits and burdens of admitting privileges. Could this be because these two Justices are not interested in that question and don’t believe this case should be thrown out on that issue? Perhaps. But it took at least four Justices to accept consideration of Louisiana’s cross petition on third-party standing, and we must assume those four Justices included either Roberts or Kavanaugh.
If the Justices throw out this case by denying the use of third-party standing to June Medical, the result would be a dramatic change in abortion litigation, limiting the freedom of abortion businesses to file suit because a state was hurting their bottom line. It would have to be women themselves who bring the suit in the future. But assuming the abortion businesses could find pro-abortion women to file suit, the woman in each case would have to show how the safety measure harms her or her rights and also whether that harm was caused by the law rather than the bad faith of the abortion providers themselves.
Without question, the Justices should throw this case out for lack of standing. The use of third-party standing by abortion businesses is another example of abortion favoritism at the Supreme Court. But even with a victory in that category, we must acknowledge that the larger issue of the role of the Supreme Court and these abortion regulations will not go away with a decision on standing. A future case focused on this major question would likely find its way right back into the lap of the Justices.
Chief Justice Roberts and Justice Kavanaugh seemed very interested throughout oral arguments of the lengths the abortion plaintiffs want the court to go and how these decisions should apply state to state.
Because of this, it seems that Chief Justice Roberts, and possibly Justice Kavanaugh, find themselves in the middle.
On one side, it is clear that abortion businesses, and likely the four abortion Justices, prefer a clear ruling that invalidates all admitting privileges laws (and any other state regulations) with respect to abortion. One must wonder if that was the preference of those four Justices in 2016, but Justice Kennedy’s presence necessitated a more nuanced ruling in Whole Women’s Health that applied particularly to Texas, opening the door for Louisiana and the 5th Circuit to articulate how our 2014 Unsafe Abortion Protection Act can be upheld in the wake of Whole Women’s Health.
But the abortion plaintiffs, and I am sure the liberal Justices, know their potential fifth vote, either Roberts or Kavanaugh, would not go that far. This is why Rickleman repeatedly tried to avoid both Justices Roberts and Kavanaugh’s pointed questions about whether admitting privileges laws were unconstitutional across the board.
In the other corner, many states would prefer the Court to step out of its illegitimate role as the national abortion board, minutely reviewing each and every abortion regulation and releasing decisions that leave states confused on how they can and cannot enforce their own laws to protect their citizens. These states should have the prerogative, even if abortion is legal, to put in place regulations consistent with other medical practices. As Sen. Jackson said at the National Press Club event the day before the arguments, “Women are often the second victims of abortion. Women and children are made in the image and likeness of God. Louisiana loves them both because these women are our family and friends.”
We can surmise that Justice Thomas sympathizes with this theory based on past separate decisions, even though he characteristically did not utter a word (though he was perhaps the most animated in his body language, dramatically leaning back in this chair and rubbing his hand over his face in an exasperated fashion during the pro-abortion argument).
Justice Alito, based on his sharp questioning of the abortion attorney and past decisions, also appears to reside in this camp. Justice Gorsuch, who usually speaks during oral arguments, was silent during Wednesday’s arguments. Because this is the first abortion case heard by Gorsuch on the merits, he remains an unknown, although we can expect he would fall into this category based on his tendency to vote in a manner similar to the late Justice Scalia.
So where will Roberts (and perhaps Kavanaugh) fall?
Roberts dissented in the 2016 Whole Women’s Health decision, siding with Texas who wished to implement a similar, but significantly different, admitting privileges law. It is hard to see Roberts doing a complete about-face from his dissent, but it is also hard to imagine Roberts, based on his past inclination to protect the “legitimacy of the court,” to issue a ruling overturning Whole Women’s Health after only four years. His questioning yesterday indicated he may be looking for a middle path, which might include upholding the Louisiana law without overturning Whole Women’s Health. If that is the case, he must be prepared for more cases from other states trying to understand where their laws fit – with Texas or with Louisiana.
While we appreciate Justice Roberts’ predicament, his legacy should be focused on restoring the Court to its proper role, not kicking the can down the road in the interest of avoiding controversy. As evidenced by Sen. Chuck Schumer’s appalling comments at the abortion rally in front of the Court, the controversy is already here. Nearly 50 years of the Supreme Court protecting the interest of abortion businesses has placed the Court in the thick of this mess. Either Justice Roberts elects to pull the Court up by its bootstraps and out of the mess or be content to wade in the muck for years to come.
Several amicus briefs made convincing arguments on the unworkability of Supreme Court abortion law, urging the Court to revisit Roe. The ball is in the Court’s court, but a looming presidential election makes this a difficult year for the Court to make this needed change.
In Louisiana, we continually see the deplorable nature of these abortion facilities year after year. It is simply appalling that the highest court in our land would look after its desire for total deregulation.
It is time the Supreme Court told abortion businesses that they cannot speak for women. It is time the Supreme Court left the business of serving as the abortion protection agency and return to its true role of interpreting the text of the Constitution. We look forward to June when the Supreme Court hopefully begins to take its role back in the right direction.