If Roe v. Wade is overturned, we will have to go back to the messy compromises of politics, which might actually avert a new disunion.
In June Medical Services v. Russo (formerly Gee), the Supreme Court on March 4 will hear oral arguments from abortionists both about the constitutional abortion rights of women and about their own standing to sue as provided by the Supreme Court’s abortion decisions. The case is the latest episode in the unceasing and relentless division of the country owing to the Supreme Court’s abortion decisions that have removed this subject from the legislative deliberation of the states.
June Medical involves a statute enacted in 2014 by the state of Louisiana compelling abortionists to have admitting privileges at a local hospital for the purpose of treating women who have complications or emergencies as a result of their abortions. As such, it does nothing more than impose a credentialing requirement similar to that required for physicians in other fields of medicine. Upon passage, the Louisiana federal district court enjoined the statute’s enforcement. In addition to the question of whether such a requirement violates a woman’s constitutional right to abortion, the case involves issues of what, when, and how “facts” are established in the course of a case’s progress through the different levels of the courts and whether abortionists have a right to assert the supposed constitutional protection of abortion.
The Issues: Standing, Facts, and Burdens
As well as asserting their own injury at the hands of the new statute, the Louisiana abortionists argue their third-party standing to assert and protect the fundamental constitutional right of women to an abortion. The essential precedent that they point to is the 7-2 decision of the Supreme Court in Craig v. Boren (1976), the landmark sex-discrimination case brought to the Court by lawyer Ruth Bader Ginsburg as counsel for the ACLU. The plaintiff was the female owner of a saloon. At issue was her third-party standing to assert the rights of young men to drink alcohol at age 18 against an Oklahoma statute allowing women to drink alcohol at age 18 but men at 21. Inventing the new standard of “intermediate scrutiny” for sex discrimination cases, the Craig Court upheld the right of the saloon keeper to litigate the issue of sex under the Equal Protection Clause.
The decision of the Craig Court was very much based on the Court’s conclusions broadening standing for third parties in the abortion case Doe v. Bolton (1973) and in the two pre-Roe v. Wade contraception cases, Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Referring to his own language for the Court in Eisenstadt, Justice Brennan for the Craig majority held that “vendors” can have their own rights “as advocates [for] the rights of third parties who seek access to their market or function.” In dissent, Chief Justice Burger said that the Craig majority had introduced “a new concept of constitutional standing.”
In June Medical, Louisiana argues that the abortionists have no standing to be parties to the case because women have no need of any third-party assistance to assert the abortion right created for them by Roe v. Wade. The state further points out, as the Fifth Circuit did in upholding the statute, that some of the abortionists had committed health and safety violations and thus had compromised themselves and their standing. Therefore, there was a conflict of interest between the abortionists and the women patients.
The other major precedent at issue in June Medical is Whole Woman’s Health v. Hellerstedt (2016), a 5-3 decision of the Court handed down four months after the death of Justice Scalia and based on the same kind of statute at issue in June Medical. Abortionists had filed a suit against a 2013 Texas law requiring them to have admitting privileges at a local hospital and requiring that abortion clinics meet the standards of ambulatory surgical centers. At a bench trial in the district court, there were expert witnesses on both sides, and the trial court issued detailed findings in favor of the abortionists. Making its own detailed findings, the Fifth Circuit reversed and upheld the Texas law. Though the Supreme Court allowed a facial challenge to the law, Justice Breyer’s opinion emphasized what he considered the real purpose of the law—to restrict abortion—and put forward a detailed examination of the effects of the law. Breyer pointed out that the Texas legislature had not “set forth any legislative findings.” In light of that, the Court accepted the findings of the district court rather than the appeals court and said, quoting its prior abortion decision, Gonzales v. Carhart (2007), that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
The Supreme Court concluded that the two Texas regulations placed “substantial obstacles” to “women seeking abortions” and constituted “undue burdens” on their constitutional rights under Planned Parenthood v. Casey (1992), which has become the controlling precedent in all abortion cases. The standing of the abortionists to bring a suit on behalf of women seeking abortions was not addressed at all in the majority opinion, although Justice Thomas brought it up in a strong dissent.
Seeking to address the Hellerstedt Court’s criticism that Texas had left no legislative record, the Louisiana legislature held hearings and made extensive legislative findings. In its June Medical brief, the state puts forth those hearings and findings as the main difference between its statute and Texas’ and argues that Hellerstedt should not decide June Medical. Its statute, Louisiana says, is “based on a very different regulatory context and record.” Louisiana in fact cites Hellerstedt’s “fact-specific review of the public health benefits” of its statute in support of its position. The state points to its purpose of protecting the health of women at abortion clinics. As the Fifth Circuit noted below, “Testimony [at legislative hearings] also established numerous health and safety violations by Louisiana abortion clinics.” Indeed, the Fifth Circuit went on to hold that the district court had “overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in [Hellerstedt].”
Just the Latest in our Contrived Abortion Jurisprudence
How did abortionists come to have standing to litigate their own separate rights as “vendors”—to use the language of Eisenstadt and Craig—of abortion in addition to a woman’s right to an abortion? The answer has its origins in Doe v. Bolton (1973), the companion case to Roe v. Wade. In that case, the Supreme Court concluded that physicians had standing to assert a constitutional right in challenging state legislation that regulated abortion. Their standing came from the personal stake they had in the outcome of the case—the possibility of an “injury in fact” through criminal penalties. But in Singleton v. Wulff (1976), Justice Blackmun extended Doe’s ruling by simply referring to “the closeness of the relationship” between an abortionist and a woman and “the constitutionally protected abortion decision [as] one in which the physician is intimately involved.”
Casey had held that any attempted regulation of abortion of pre-viability fetuses must not place an “undue burden” on or erect a “substantial obstacle” to a woman’s constitutional right to an abortion. And assessments of the effects of the Louisiana statute by all parties in June Medical involve an evaluation of those standards as prospectively applied to the new statute. In June Medical, Louisiana, as well as the United States Department of Justice, which has filed a brief strongly in support of the state, argues that the purpose and expected effects of Louisiana’s statute are not “substantial” enough so as create an “obstacle” to a woman’s right to an abortion.
But is there any real legal or constitutional standard here? How does a “burden” compare to an “obstacle”? What constitutes “undue,” and how does that compare to “substantial?” Or is the obvious subjectiveness of such “standards” just another example of abortion as the “constitutional right of unique character,” as Justice Powell, writing for the Court, called it in Bellotti v. Baird (1979)? Such amorphous standards are the inevitable result of attempting to justify and clarify a right found nowhere in the constitution.
Lastly, whose “facts” count when? The legislature’s, the district court’s, the appeals court’s, or the Supreme Court’s? In the present case, as well as in Hellerstedt and Singleton, all courts at all levels engaged in their own evaluations of the effects of the involved statutes, forcing us to wonder whether the courts just pick and choose the facts that support their preferred outcome. In Hellerstedt, the district court ruled for the abortionists, the Fifth Circuit for the state of Texas, and the Supreme Court reversed back to the abortionists. In June Medical, the expected effects of the statute were examined at a six-day trial in the district court, and the ruling was for the abortionists. On appeal, the Fifth Circuit held that the effects of the statute would not undermine the constitutional right to an abortion. The Supreme Court will now have to make its own decision on the facts. Is this really what courts are supposed to do?
Our abortion jurisprudence, and June Medical in particular, reminds us how far we are today from Marbury v. Madison’s holding that courts merely “say what the law is.”