It’s been a relatively quiet term at the Supreme Court since the justices reconvened last October. The court has some important cases on its docket this year, notably on tribal reservations in Oklahoma, a Double Jeopardy Clause exception, and partisan gerrymandering. But it lacked any cases on the major social issues that occasionally dominate its work. Then, last September, a three-judge panel of the Fifth Circuit Court of Appeals handed down its decision in June Medical Center v. Gee, upholding a Louisiana statute that would effectively force all but one of the state’s abortion clinics to close.
Abortion-rights groups argued that the decision came in direct defiance of the Supreme Court’s past abortion precedents, including a 2016 ruling by the high court that struck down a similar law in Texas. The Fifth Circuit’s ruling was set to take effect on Monday, but last week Justice Samuel Alito, who handles stay applications from the Fifth Circuit, temporarily blocked it from going into effect until Thursday, February 7. He told the parties that the delay was necessary so that all of the justices could review the filings and deliberate over what the Supreme Court’s response would be.
Opponents and supporters of abortion rights alike knew that a moment like this was coming ever since Anthony Kennedy’s retirement last summer. Some legal experts predicted after his announcement that abortion would be illegal in 20 states within twelve to 18 months. If the justices let the Fifth Circuit’s ruling go into effect on Thursday, that estimate may well prove true.
At issue in June Medical Center is a 2014 Louisiana state law known as Act 620. The statute is what abortion-rights supporters call a “TRAP law,” which stands for “targeted regulation of abortion providers.” By relying on a state government’s power to set health and safety standards, state lawmakers can impose onerous regulatory burdens on clinics until they’re no longer able to stay open. This strategy allows lawmakers to limit a woman’s ability to obtain the procedure under the aegis of protecting women’s health and without banning abortion outright. After all, the constitutional right to obtain an abortion can’t be exercised if there’s nowhere to obtain it.
Act 620’s main provision required doctors who provide abortions to obtain admitting privileges at hospitals within a 30-mile radius of the clinic itself. In 2017, Judge John deGravelles blocked the law from taking effect because it would impose an undue burden on Louisiana women because many hospitals refused to grant admitting privileges or weren’t within range of a clinic. The judge noted that the law would leave open only a single clinic in New Orleans and force women elsewhere in the state to travel long distances to obtain the procedure. “In short, Act 620 would do little or nothing for women’s health, but rather would create impediments to abortion, with especially high barriers set before poor, rural, and disadvantaged women,” he wrote.
This was something of a no-brainer after the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt in 2016. In that case, the justices struck down a Texas law with a similar admitting-privileges provision and a requirement for clinics to meet the standards of an ambulatory surgical center. Justice Stephen Breyer, writing for a 5-4 majority, concluded that those restrictions didn’t provide enough medical benefit to justify their impact. “Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution,” he wrote.
Louisiana appealed the case to the Fifth Circuit. Last September, a three-judge panel overturned deGravelles’s ruling and upheld Act 620 in a 2-1 decision. Whereas the lower court had found that four out of the five doctors who provide abortions in Louisiana failed to obtain admitting privileges despite their best efforts, Judge Jerry Smith, writing for the majority, concluded that only one of those four doctors had actually made a good-faith effort to obtain privileges and still failed. He narrowly interpreted the Supreme Court’s ruling in Hellerstedt to set apart Louisiana’s law from Texas. “Unlike in [Hellerstedt], Act 620’s impact was severed by an intervening cause: the doctors’ failure to apply for privileges in a reasonable manner,” he wrote.
Smith’s conclusion elided the fact that the doctors wouldn’t have had to apply for privileges in the first place but for Act 620. Judge Patrick Higgenbotham, the panel’s lone dissenter, took issue with that reasoning and Smith’s use of Supreme Court precedent. “The majority today essentially holds that, because private actors (the physicians) have not tried hard enough to mitigate the effects of the act (a conclusion contradicted by the district court’s factual findings), those effects are not fairly attributable to the act,” he wrote. “That position finds no support in [Hellerstedt].”
Last month, in what’s known as an en banc hearing, a majority of the Fifth Circuit declined to reconsider the panel’s decision. Judge James Dennis dissented from his colleagues’ decision, which he said relied on an “erroneous and distorted version” of Casey’s undue-burden test. “A majority of the en banc court repeats this mistake, apparently content to rely on strength in numbers rather than sound legal principles in order to reach their desired result in this specific case,” he wrote. That left the Supreme Court as the clinics’ last hope to overturn the panel’s ruling.
This isn’t the same Supreme Court that handed down the Hellerstedt ruling. After Sandra Day O’Connor’s retirement in 2005, Kennedy was all that stood between the other four conservative justices and the Supreme Court precedents that protected women’s access to the procedure. Justice Brett Kavanaugh, Kennedy’s replacement on the court, has never publicly stated his views on abortion rights or ruled on a case involving them. But virtually everyone expects that he will be more inclined to uphold restrictions on the practice than his predecessor was. Kavanaugh may even provide the conservatives’ long-awaited fifth vote to reverse Roe v. Wade and Planned Parenthood v. Casey, the 1992 case that established the undue-burden test.
So, what could the Supreme Court do? In order to prevail, the clinics not only would need at least five justices to block the Fifth Circuit’s ruling from going into effect, but to persuade at least five justices to reverse the lower-court rulings in favor of the statute. Had this case reached the Supreme Court one year ago, when Kennedy sat among them, this may have have been a straightforward affair for the clinics. But Kavanaugh’s elevation makes that prospect murky at best. The justices could decide to block the Fifth Circuit’s ruling while it hears the case, then issue a ruling upholding Act 620. That would likely widen the undue-burden standard beyond usefulness and set the stage for direct challenges to Roe and Casey.
The procedural circumstances of this case could also indicate whether the justices are willing to undermine abortion rights in more subtle ways. Say the Supreme Court declines the clinics’ request to stay the Fifth Circuit’s decision and decides not to review the panel’s decision itself. Legally speaking, the Supreme Court’s previous abortion-rights rulings would still be good law. Roe, Casey, and Hellerstedt would remain binding precedents for the lower courts to follow. The court simply can’t review all of the thousands of cases that reach it each year, so its decision to not take up a case doesn’t legally mean it agrees with the lower court’s ruling.
But as I noted last July, the court could dramatically reduce access to abortion in large swaths of the country simply by not enforcing its past decisions protecting access to it. Letting the Fifth Circuit’s ruling stand would send an implicit signal that the justices may not intervene when the lower courts interpret the undue-burden standard into oblivion, or when state legislatures try to regulate abortion out of existence without banning it outright. The Supreme Court won’t be overturning Roe and Casey this week. But the justices may still render both cases meaningless for millions of Americans across the country.