The Supreme Court Will Soon Test Its Commitment to Abortion Rights

In a new case, the justices will reconsider past decisions that have protected women’s ability to terminate their pregnancies.

Abortion-rights activists protest at the Supreme Court in 2018. (Andrew Chung / Reuters)

For legal nerds, the alarm has sounded: The Supreme Court decided this morning that it will hear June Medical Services LLC v. Gee, the first big abortion case it has granted since President Donald Trump’s two Supreme Court appointees, Neil Gorsuch and Brett Kavanaugh, took the bench. This may be the Court’s first step in radically shifting its approach to abortion cases, gradually undoing the standards that have supported a constitutional right to abortion for the past 45 years.

The case, which concerns a Louisiana law regulating abortion clinics, is very similar to one the Supreme Court decided just three years ago, Whole Woman’s Health v. Hellerstedt. In that case, the Court found that a Texas law placed undue burdens on women seeking abortions, severely reducing their access to the procedure. The abortion-rights movement saw Whole Woman’s Health as a major victory. But that was a different time, and a different Court. In taking on June Medical Services, the current justices have signaled their discontent with the decision in Whole Woman’s Health; perhaps they want the chance for a redo.

The legal questions in June Medical Services are complicated, and the lower courts that heard the case do not agree on the facts. While the Louisiana law requires that doctors who perform abortions have admitting privileges at local hospitals, the trial court found that doctors who tried to secure these privileges were routinely denied them, despite their “good-faith efforts” to navigate the “opaque, byzantine, and in some cases Kafka-esque application processes required by Louisiana hospitals.” It found that the Supreme Court had just addressed a nearly identical set of circumstances in Whole Woman’s Health and, following this precedent, struck down the Louisiana law.

On appeal, however, the Fifth Circuit Court disputed the trial court’s claim, finding that the doctors actually “sat on their hands” and did not try to secure admitting privileges. This was the basis for a reversal, in favor of Louisiana: The Fifth Circuit Court—which, legally speaking, is not supposed to do its own fact-finding—asserted that it did not have to follow the Supreme Court precedent in Whole Woman’s Health, because this Louisiana case was substantively different and appropriately protected women’s health.

While the legal arguments in this case may seem narrow, the potential consequences are immense. June Medical Services “speaks to whether the Court is committed to precedent,” Elizabeth Sepper, a professor at the University of Texas School of Law, told me. It is unusual for the Court to hear two cases on such similar laws in a short span of time, and there’s a reason for that: The Supreme Court’s role is to create interpretive frameworks for other courts to follow. If the Court appears to be constantly changing its mind about the meaning of the law, that creates confusion in the rest of the legal system. Nonetheless, the Fifth Circuit may have been emboldened to rule in favor of Louisiana because those judges, like the rest of the country, are reading the tea leaves on the current Court’s views on abortion rights. They seem “to be anticipating a change in the law here based entirely on the political party that appointed the recent Supreme Court justices,” said Sepper, who supports abortion rights.

If the Supreme Court is, indeed, open to altering its past approach, June Medical Services might be the beginning of a gradual, radical reorientation of abortion jurisprudence. This vindicates a long-standing strategy of the anti-abortion movement, which has purposefully teed up as many potential abortion challenges as possible in the states and lower courts, hoping that a few will make their way to the Supreme Court. These advocates not only see abortion as morally wrong, but argue that the Supreme Court’s approach to abortion cases over the years has been confusing at best and legally suspect at worst. “There is a reasonable prospect on the Court right now of five votes that understand you can’t really find abortion in the text of the federal Constitution,” Helen Alvaré, a law professor at George Mason University who has long been allied with the anti-abortion movement, told me.

While the fate of Roe v. Wade, the 1973 case that established a constitutional right to abortion, gets the largest share of media attention, most abortion cases today actually deal with the standards set out in a 1992 case called Planned Parenthood v. Casey, which stated that abortion regulations could not place an “undue burden” on women. Anti-abortion legal advocates have long argued that this standard is vague and hard to interpret. “It makes all the sense in the world to highlight how abortion jurisprudence is incoherent and is impossible for the Court, reasonably, to continue,” Alvaré said.

The Supreme Court’s decision to take up this case also vindicates another strategy of the anti-abortion movement. “June Medical Services, at heart, is about whether a state can regulate abortion out of existence,” Sepper said. Especially over the past decade, anti-abortion groups have used a barrage of state legislation to limit the number of abortions that actually take place, which has proved an effective alternative to outright bans on the procedure. The Supreme Court pushed back against this strategy in Whole Woman’s Health, calling out the Texas legislature for intentionally placing “substantial obstacles” in the path of women who wanted to terminate their pregnancies. By agreeing to hear a similar case about what appears to be a similar law, the current Court has signaled that it may not continue this approach. Over time, Alvaré said, the Court might gradually shift more power to regulate abortion back to the states, including via purported health-and-safety laws like the ones in Texas and Louisiana. “Some of the justices who don’t like Roe may use this case not to overturn Roe but to say, ‘Would you look at this mess?’” she said. “There may be some who want to just say, ‘We’d really like, as a Supreme Court, to do something other than sort out state abortion laws.’”

Speculation about Supreme Court cases on abortion often gets reduced to one overly simplistic question: Will Roe v. Wade be overturned? It’s unlikely that the justices will use June Medical Services, or any other single case, to summarily strike down Roe in some dramatic one-line declaration. What’s more likely is a gradual unwinding of abortion rights: a decision in June Medical Services that walks back the outcome in Whole Woman’s Health, a willingness to entertain cases that might have previously been refused a hearing. The Court will surely have many opportunities to do that: A recent spate of state bans on abortion after six or eight weeks of gestation is currently winding its way through the lower courts. “It’s going to be interesting to see what happens with the flashier, scorch-the-earth cases that are currently being litigated across the country,” Sepper said. “If the Court took up one of them, it would be much, much harder to think that they hadn’t, in fact, reversed Roe and Casey.”

Abortion-rights advocates fear this kind of outcome, painting the current Court as irresponsibly cavalier toward women’s rights. Even the liberal justices have said as much: This spring, Stephen Breyer warned his colleagues against casually overturning precedents, clearly alluding to abortion, and Ruth Bader Ginsburg described Clarence Thomas’s criticism of abortion jurisprudence as “more heat than light.” But the conservative wing of the Court may see an opportunity at hand: not for a radical act of revision, but for a chance to end the endless legal disputes over abortion.

“The hype in the newspapers is usually, ‘To overturn Roe and Casey would be to demonstrate partisanship,’” Alvaré said. But John Roberts, the conservative chief justice who is now considered the Court’s primary swing vote, may view the Court’s next moves as “the faithful application of constitutional analysis,” and a way to ensure “the future legitimacy of the Court.”