June 30, 2020

Supreme Court Rules 5-4 Against Louisiana's Admitting Privileges Requirement for Abortionists

After a long debate, the Supreme Court finally ruled on June v. Russo Monday in a 5-4 decision blocking a Louisiana law that would require abortion clinics to maintain hospital admitting privileges. The decision and all written opinions can be read here.

The Supreme Court originally agreed to hear the challenge to Louisiana's Act 620, known as “The Unsafe Abortion Protection Act,” on October 4, 2019. It was a bipartisan bill written by State Sen. Katrina Jackson (D) to make abortion clinics abide by the same standards as other surgical facilities in Louisiana (which were already required to maintain hospital admitting privileges).

Pro-life and pro-abortion advocates waited anxiously, believing that recent Trump-appointed justices Neil Gorsuch and Brett Kavanaugh might swing the Supreme Court's decision in favor of pro-life values in line with the constitution rather than pro-abortion judicial precedents. Both Trump appointees voted in favor of Act 620, but Chief Justice John Roberts joined with the four more left-leaning justices; thus outweighing the recent changes in the Supreme Court's makeup.

Although he sided with the liberal justices in his decision, he did not contribute to their written opinion and instead wrote his own. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” Roberts wrote. “Therefore Louisiana’s law cannot stand under our precedents.”

Confusingly, Roberts voted in favor of the Texas law he referenced in his opinion. Notre Dame law school professor Rick Garnett told CNA that Justice Roberts has sided against judicial precedent before. “It is difficult to see why he did not do so here, too,” Garnett said. “Four years hardly seems like enough time to convert a judicial mistake [the 2016 Whole Woman’s Health decision Roberts referenced in his opinion] into an unmovable monument.”

The rest of the justices siding with the majority opinion argued that abortionists had issues gaining admitting privileges for reasons "unrelated to competency," and the law, therefore, placed an undue burden on abortion access.

In their dissenting opinions, pro-life judges argued that abortionists had no legal standing to sue the State over Louisiana's law, arguing that physicians don't have a legal right to perform abortions without regulation. The dissenting justices also took issue with the fact that plaintiffs claimed to be suing the state on behalf of possible future customers whose access to abortion may be impacted by abortionists' inability to receive admitting privileges. While claiming to sue on behalf of women seeking abortions, they were actively challenging a law designed to keep abortion safe.

Justice Samuel Alito argued that the plaintiffs in the case could easily have acted in bad faith to help prove their case. Justice Alito wrote, "[The plaintiffs] had an incentive to do as little as they thought the District Court would demand," because if they failed to receive admitting privileges it would help prove their case. If they received admitting privileges, they would be held to a higher medical standard without any monetary benefit and likely fail to overturn Act 620. If they failed to receive admitting privileges (which they did), they could potentially overturn the law (which they also did).