In late June, the Supreme Court issued its ruling in June Medical Services v. Russo. Though the decision was a setback in the fight for the rights of the unborn, nevertheless this ruling is erroneous and could be overturned in a future case considering similar issues. In its decision, the Court struck down a Louisiana law drafted to protect women receiving abortions. A plurality of the Court— four justices— stated that the law placed a burden on women’s access to abortion and was therefore unconstitutional. Chief Justice John Roberts concurred in the plurality’s judgment, stating that he was bound by the precedent of a similar abortion case—Whole Woman’s Health v. Hellerstedt—even though he still disagrees with that case’s ruling. Such a novel application of the doctrine of stare decisis, which requires that past precedents be followed unless justice requires otherwise, is certainly subject to being questioned in future cases dealing with common sense restrictions to abortion.
How could the Court make such an erroneous decision? How could the Chief Justice uphold a case with which he disagrees? Justice Samuel Alito reveals the answer in his dissent. He explains that the Chief Justice erroneously believes that the doctrine of stare decisis requires the Court to follow prior decisions that were themselves erroneously decided; that the plurality also erroneously follows a balancing test rather than the appropriate constitutional test for appellate review; and that their opinion ignores and distorts the record, which provided ample evidence that hospital admitting privileges help to protect the health of women, which was the stated purpose of the law in question.
Justice Alito also emphasized that even though Texas’ legislation in Whole Woman’s Health and Louisiana’s proposed Act 620 in June Medical’s decision are largely the same, the cases are not. The Texas law was in effect when the Court reviewed it, and therefore Whole Woman’s Health looked at the consequences of the law. Act 620 was not in effect when challenged in Court, so in June Medical the judges were left to speculate concerning potential future issues with the law. Thus, stare decisis does not apply. Furthermore, Justice Alito argued that since Whole Woman’s Health misinterpreted Court precedent it should be overruled and June Medical should not rest on it.
In 2014, the State of Louisiana passed Act 620, which requires abortion providers to hold hospital admitting privileges at a facilityno further than thirty miles from where they perform abortions, and abortion providers challenged the law. The district court likened June Medical to the recently decided case, Whole Woman’s Health. In Whole Woman’s Health, the Supreme Court struck down a Texas law that was very similar to Louisiana’s Act 620. Therefore, the district court found Louisiana’s law invalid. However, the Fifth Circuit Court of Appeals ruled that there were important differences between the laws and upheld the Act. Thus, the Supreme Court agreed to take June Medical in order to answer two questions: 1) whether abortion providers have standing to bring a case on behalf of women even though Act 620 does not violate the providers’ rights and 2) whether the precedent set in Whole Woman’s Health should control the outcome in June Medical.
At the beginning of 2020, the National Legal Foundation, also on behalf of three other organizations, filed a brief supporting Louisiana. Rick Claybrook, a frequent collaborator with NLF, wrote a blog post which summarized NLF’s argument. The NLF argued that the Court should affirm the Fifth Circuit’s decision and rule in favor of Louisiana. However, when the Court decided the case in June, it concluded that the law creates a considerable obstacle to a woman’s protected right to choose abortion—a right judicially created in Roe v. Wade —and is thus unconstitutional.
Justice Breyer wrote the plurality decision for himself and Justices Ginsburg, Sotomayor, and Kagan. In essence, the Court struck down a law created to ensure safer abortion procedures for women because it believed the law burdened the women’s right to abortion. The Court rested its ruling on two baseless pedestals.
First, the plurality believed that many preceding cases established a third party’s ability to challenge a law in court if the law would indirectly affect the rights of another party. Therefore, the plurality reasoned that the providers could challenge Act 620 on behalf of Louisiana women. However, Justice Alito pointed out that third party standing is not appropriate where there is a potential conflict of interest, and further states that “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning” and would surely be “rejected out of hand in a case not involving abortion.”.
Second, the plurality asserted that Louisiana’s Act 620 is “almost word-for-word identical” to the Texas law at issue in Whole Woman’s Health. Using a test established in Planned Parenthood v. Casey—which says that if a law imposes an undue burden on women seeking an abortion, it is unconstitutional—the Court concluded that Act 620 limited women’s access to certain abortion providers. Thus, the plurality reasoned that women’s ability to seek abortions was burdened, which rendered the law unconstitutional. Therefore the plurality agreed with the district court’s decision.
As mentioned, Chief Justice John Roberts joined the judgment, but authored a concurrence. In his concurrence, the Chief Justice detailed why he believed Whole Woman’s Health should be used as precedent, and he based his opinion mainly on the legal doctrine of stare decisis. In 2016, Chief Justice Roberts joined the dissent in Whole Woman’s Health because he believed the majority misinterpreted judicial precedent and departed from proper judicial review when it declared the Texas law unconstitutional. However, in his June Medical concurrence, he explained that even though he joined the dissent in Whole Woman’s Health and continues to believe that the case was “wrongly decided,” the question “is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” Chief Justice Roberts explained that because that the laws at issue in June Medical and Whole Woman’s Health are similar and because he believes stare decisis “instructs [judges] to treat like cases alike,” the Court’s decision in June Medical is controlled by its decision in Whole Woman’s Health. Therefore, the Chief Justice concurred with the Court’s judgment because he deemed it necessary to uphold a previous case with which he disagrees. That is how he interpreted stare decisis, and, according to Justice Alito, he misused the doctrine altogether.
In addition to Justice Alito, Justices Thomas, Kavanaugh, and Gorsuch, also wrote dissents, arguing against the plurality’s faulty logic and erroneous ruling. Justice Thomas argued that “under a proper understanding of Article III”—the article of the U.S. Constitution that enumerates federal courts’ powers—the providers lacked standing to come to court. Justice Kavanaugh agreed with Justice Alito that additional fact-finding is necessary and that the case should be remanded to the District Court for a new trial with such fact-finding under the appropriate standards, which he believes should be those of Casey. He also believes that the District Court needs to address the State of Louisiana’s claim that the abortion providers in this case lacked third-party standing.
Sadly, five of the Supreme Court Justices erred in their judgment in June Medical. As a result, many women will suffer, and many more unborn children will die because of their decision. One only needs to read the examples of medical horrors listed in Justice Gorsuch’s dissent to comprehend the damage that this case breeds. Not just the damages to the lives of the unborn children, but also to the health of the mother. As Justice Gorsuch pointed out, the mothers often suffer uterine perforation, hemorrhage, cervical lacerations, infections, complications involving retained fetal body parts, and other dangers involving serious bodily injury or death.
Furthermore, the Court abandoned the judicial process in ruling that Act 620 was unconstitutional. Justice Gorsuch appropriately explained the problem when he stated “to arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the dissenting neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.”
Unfortunately, many Americans can’t help but agree with Justice Gorsuch. In such a highly politicized area of the law, it appears that the Supreme Court of the United States has clearly lost its way.