June Medical v. Russo (2020): Where do we go from here?

Nikolas Nikas & Dorinda Bordlee
By Nikolas Nikas & Dorinda Bordlee July 1, 2020 18:25
June Medical v. Russo (2020): Where do we go from here?

July 1, 2020.  The following is Bioethics Defense Fund’s initial review of the U.S. Supreme Court decision issued on June 29, 2020 in June Medical Services v. Russo, striking down Louisiana’s requirement that physicians have hospital privileges to admit and treat the women they injure in the course of an elective abortion.

Bioethics Defense Fund attorneys Nikolas T. Nikas and Dorinda C. Bordlee were honored to have provided legal consultation to bill author Louisiana Senator Katrina Jackson. At the Supreme Court level, they hosted a moot court to prepare the solicitor general for oral argument, and provided amicus brief coordination that resulted in over 40 friend-of-the-court briefs being filed in support of Louisiana on behalf of 2,624 women injured by abortion, former abortion providers, scores of national legal and medical associations, 207 members of Congress, as well as the U.S. Department of Justice and the attorney general offices of dozens of States.  

Bioethics Defense Fund, bdfund.org, is a non-profit legal and educational organization whose mission is to put law in the service of life. 

June Medical v. Russo: Where do we go from here?

by Nikolas T. Nikas and Dorinda C. Bordlee, Bioethics Defense Fund

Chief Justice John Robert’s deciding vote in June Medical Services v. Russo to strike down the Louisiana abortion law protecting women’s health is deeply troubling, not only for the result but also for his perplexing reasoning discussed below.  But there may be a silver lining of hope that benefits the pro-life movement. Read on.

Regrettably, a sharply divided U.S. Supreme Court, by a 5-4 vote, struck down Louisiana’s common-sense law requiring that abortion doctors have the ability to admit women they have injured during an abortion into a hospital within 30 miles of their abortion facility.  The eminently reasonable goal of the law was to protect women’s health from unqualified and negligent abortion providers.  Alas, even reason and common sense must bow to the “bulldozer” (Justice Alito in dissent) the so-called “abortion liberty” has become.

 Especially troubling in today’s decision was the key role Chief Justice Roberts played.  Roberts had dissented a mere four years ago from the Whole Women’s Health v. Hellerstedt decision, holding unconstitutional a Texas admitting privileges law similar to Louisiana’s law.  But in this decision, Roberts justified joining the Court’s abortion defenders (Justices Breyer, Ginsburg, Kagan and Sotomayor) in striking down the Louisiana law by referencing Hellerstedt as controlling precedent (what lawyers call the doctrine of stare decisis). 

In short, the Chief Justice relied on the very same case he claimed four years ago was wrongly decided to strike down a similar statute today.  “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided.  The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”  

This reasoning seems to elevate a “wrongly decided” Supreme Court case over the Constitution itself.  This strained interpretation of stare decisis would seem to prevent the Court from overruling its own “demonstrably erroneous” (Justice Thomas in dissent) decisions.  Pushed to its logical conclusion, this bizarre view of stare decisis would leave one to wonder what the Court would do with its past disastrous precedents: Dred Scott v. Sanford (enslaved persons are “ordinary articles of merchandise”), Plessy v. Ferguson (“separate but equal” facilities for Blacks and Whites was Constitutional), Buck v. Bell (upholding forcible sterilization, “three generations of imbeciles are enough”), and Korematsu v. United States (upholding order to put American citizens of Japanese origin into internment camps).

Yet, amidst the striking down of the Louisiana statute there seems to be some good news.  Although the Chief Justice concurred with the four liberal Justices, he wrote separately to give a very narrow interpretation to  the nearly impossible to pass “balancing test” put forth by the 2016 Hellerstedt decision.  

It seems to be good news because two days later, the Court sent back for further review two Indiana pro-life laws that had been struck down under the Hellerstedt standard — a parental notice law and a law requiring ultrasound 18 hours before an abortion. This seems to bode well for the pro-life movement, and not so well for the abortion industry.

Hellerstedt had purported to dramatically alter the reigning “undue burden” abortion standard set forth in Planned Parenthood v. Casey back in 1992.  While hardly a clear (or logical) standard, the “undue burden” standard had allowed States to pass and successfully defend many reasonable laws that help women choose life, such as informed consent, parental involvement, ultrasound requirements, and more.

The 2016 Hellerstedt majority created out of whole cloth a nearly impossible standard for determining whether a law regulating abortion could pass constitutional muster: did the “benefits” of a law (that has not even gone into effect) outweigh any “burdens?”  Interpreted broadly, this “balancing test” could have led to every single prolife regulation in the country being challenged and possibly struck down.  

In fact, months after the 2016 decision, abortion industry lawyers filed lawsuits in Louisiana and several states across the nation challenging every single prolife law and safety regulation in that State on the grounds that their “cumulative effect” created an undue burden, even though each law had been individually upheld as constitutional over the past several decades. The Chief’s concurring opinion appears to have rejected the abortion industry’s broad interpretation.  The Chief Justice stated:

Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.  On the contrary, we have explained that the ‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty’ is ‘consistent with Casey.’

The bottom line is that thanks to the formidable advocacy of Louisiana’s legal team, the prolife movement may have neutralized the potentially devastating Hellerstedt balancing test. 

The larger question on everyone’s mind is the status of reversing Roe and sending the issue back to the states where abortion could be prohibited or subjected to meaningful restrictions by the people through their elected state representatives.  Only Justice Thomas addressed this underlying issue directly, forcefully calling for the reversal of Roe v. Wade and the 47 years of “ill-founded abortion jurisprudence” that followed it.  After demonstrating that the Court’s long-standing practice of allowing abortion doctors to represent the interests of their patients (“third party standing”) could not be justified, Justice Thomas got to the heart of the matter:

“The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process….  As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”

The remaining dissenting Justices (Alito, Gorsuch, and Kavanaugh) did not make their positions explicit on whether Roe should be reversed, since that issue was not expressly before the Court. This issue of Roe’s possible reversal remains for another day.  The prolife movement finds itself, once again, waiting for one additional Justice needed to end the high court’s usurpation of the prerogatives of the States. 

So, where do we go from here? Advocates and supporters of the Cause for Life will no doubt recommit themselves to one of the most important social justice movements of our time.  While we work toward the day that Roe is reversed, those who have dedicated their lives to building a civilization of love can and should continue to exercise their constitutional rights to advocate for laws that help individual women choose life for themselves and their unborn children. 

Social justice movements take time; we only fail if we give up. 

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Nikolas Nikas & Dorinda Bordlee
By Nikolas Nikas & Dorinda Bordlee July 1, 2020 18:25