In a 5–4 decision, the Supreme Court has ruled in favor of abortion providers in June Medical Services v. Russo, striking down a Louisiana law that required abortionists to maintain admitting privileges at a local hospital in order to perform abortions. In doing so, the majority has upheld flawed precedent and permitted abortionists to continue benefiting from an enormous loophole, ignoring the health and safety concerns at stake for women seeking a surgical abortion.
Louisiana’s law aimed to bring abortion clinics into compliance with all other ambulatory surgical centers in the state, where health-care providers already are required to maintain admitting privileges. According to the Supreme Court’s majority opinion, applying that same policy to abortion providers is an unacceptable infringement on a woman’s supposed constitutional right to an abortion — in short, they have widened the gaping loophole that already exists for any policy related abortion, what the late Justice Antonin Scalia called the judiciary’s “abortion distortion.”
The majority opinion was written by Justice Stephen Breyer, and Chief Justice John Roberts penned a concurrence in which he insisted on the importance of stare decisis, arguing that because the Court struck down a similar admitting-privileges law in Texas in the 2016 case Whole Woman’s Health v. Hellerstedt, it was bound by precedent to strike down the Louisiana law as well.
Though I don’t have the legal acumen of some of my colleagues, I think it’s quite obviously the case that the Court is empowered to overturn bad precedent, and that it’s easier to do so the more recently those bad precedents were decided. One reason I thought there was a chance Roberts would take June Medical as an opportunity to vote with a slim majority and overturn Hellerstedt was the simple fact that he himself dissented from it quite strongly at the time. But apparently, in his view, even a wrongly decided case must stand and must be applied to future cases simply for the sake of upholding precedent.
It is worth noting, too, that there were relevant distinctions between the Louisiana law and the Texas law struck down in Hellerstedt, the most important of which is that, as Louisiana officials ably illustrated, the enforcement of its policy would not result in the closure of any of the state’s abortion clinics, as had been the case in Texas. Pro-life advocates believed this might alleviate the Court’s concerns that the policy would impose an “undue burden” — in the vague language of Planned Parenthood v. Casey (1992) — on women seeking an abortion.
Finally, as Justice Clarence Thomas pointed out in his excellent dissent, the majority opinion almost entirely ignored a second key question at stake in June Medical. While the case primarily concerned the constitutionality of Louisiana’s admitting-privileges law, the Court also agreed to consider whether abortion providers have standing to challenge regulations on behalf of women. As Louisiana argued compellingly, the interests of abortionists and women actually don’t align perfectly, and are quite often at odds, especially because of the financial incentive to perform abortions, no matter the risk to women.
“The plurality and the chief justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents,” Thomas wrote. “But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”