Top Quotes from the June Medical Services v. Russo decision
By / Jun 29

Earlier today, the Supreme Court narrowly decided June Medical Services LLC v. Russo with a 5-4 ruling that prioritizes the abortion industry’s profits over the health and safety of women. The decision, according to Russell Moore, was “disappointing and wrong-headed.”

The justices considered a state law, Louisiana Act 620, which required doctors performing abortions to have active admitting privileges at a nearby hospital to ensure that women could be quickly transferred for care in the event of any medical complications. The ERLC filed an amicus curiae brief in this case arguing that because the law sought to bring abortion clinics—which are surgical clinics—under the same medical standards as all other surgical clinics, the legal test should apply, not the undue burden standard.

Commenting this morning, Moore noted how the Louisiana law had a “simple goal of protecting women from danger by placing the most minimal restrictions possible on an abortion industry that insists on laissez-faire for itself and its profits.” Even though today’s decision is a disappointment, Moore promised “we will continue to seek an America where vulnerable persons, including unborn children and their mothers, are seen as precious, not disposable.”

Justice Breyer wrote the majority opinion joined by Justices Sotomayor, Ginsberg, and Kagan. Chief Justice Roberts wrote a concurring opinion, joining with the four more liberal justices in the Court’s ruling. Justices Thomas, Alito, Kavanaugh, and Gorsuch each wrote dissents, joining each other at various parts.

Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more on this case and how the ruling will affect the pro-life movement’s legislative and litigation strategy, check out this explainer.

Majority: Justice Breyer joined by Justices Ginsberg, Sotomayor, and Kagan

On third party standing:

This is not “the first abortion case to address provider standing to challenge regulations said to protect women.” (15)

“We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” (13)

“[T]he State’s strategic waiver and a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing.” (16)

On upholding Hellerstedt:

“The Texas statute at issue in Whole Woman’s Health v. Hellerstedt required abortion providers to hold ‘active admitting privileges at a hospital’ within 30 miles of the place where they perform abortions. . . . In this case, we consider the constitutionality of a Louisiana statute, Act 620, that is almost word-for-word identical to Texas’ admitting-privileges law.” (2)

“We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health v. Hellerstedt in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional.” (3)

The majority’s “undue burden” analysis: 

“[U]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid.”(20)

[W]e find that the testimony and other evidence contained in the extensive record developed over the 6-day trial support the District Court’s ultimate conclusion that, even if Act 620 could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden.” (18-19)

“[W]e think that these findings and the evidence that underlies them are sufficient to support the District Court’s conclusion that Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana.” (35)

Concurring: Chief Justice Roberts

Though Chief Justice Roberts argued that he sympathizes with the dissenting Justices’ reasoning and even dissented himself in Hellerstedt, he voted with the majority on the basis of stare decisis, or deciding cases according to the prior precedent of the Court.

On Stare Decisis:

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.” (2)

“Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law. Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.” (11)

“Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.” (16)

Dissents: Justices Thomas, Kavanaugh, Alito, and Gorsuch

Why the Court should not have heard this case:

“To establish standing in federal court, a plaintiff typically must assert an injury to her own legally protected interests—not the rights of someone else.” (Gorsuch, 5)

“Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction” (Thomas, 1)

“Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.” (Thomas, 20).

“After overlooking so many facts and the deference owed to the legislative process, today’s decision misapplies many of the rules that normally constrain the judicial process.” (Gorsuch, 5)

“Some may not see the conflict in this case because they are convinced that the admitting privileges requirement does nothing to promote safety and is really just a ploy. But an abortion provider’s ability to assert the rights of women when it challenges ostensible safety regulations should not turn on the merits of its claim.” (Alito, 26)

“The judicial power is constrained by an array of rules. . . . Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.” (Gorsuch, 1)

On the constitutionality of abortion:

“Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment.” (Thomas, 16)

“But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” (Thomas, 14)

“Since the Court decided Roe, Members of this Court have decried the unworkability of our abortion case law and repeatedly called for course corrections of varying degrees.” (Thomas, 19)

“Under our precedent, the critical question in this case is whether the challenged Louisiana law places a ‘substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ . . . If a law like that at issue here does not have that effect, it is constitutional.” (Alito, 3)

How Louisiana Act 620 promotes patient protection:

“In fact, the Louisiana legislature passed Act 620 only after extensive hearings at which experts detailed how the Act would promote safer abortion treatment—by providing ‘a more thorough evaluation mechanism of physician competency,’ promoting ‘continuity of care’ following abortion, enhancing inter-physician communication, and preventing patient abandonment.” (Gorsuch, 2–3)

“Contrary to the view taken by the plurality and (seemingly) by the Chief Justice, there is ample evidence in the record showing that admitting privileges help to protect the health of women” (Alito, 4)

“A . . . physician explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges.” (Gorsuch, 4)

Why Louisiana Act 620 does not discourage doctors from performing abortions:

“As Justice Alito thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors (Does 2, 5, and 6) cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.” (Kavanagh, 2)

“This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement.” (Alito, 25)

“Today’s decision also appears to assume that, if Louisiana’s law took effect, not a single hospital would amend its rules to permit abortion providers easier access to admitting privileges; no clinic would choose to relocate closer to a hospital that offers admitting privileges rather than permanently close its doors; the prospect of significant unmet demand would not prompt a single Louisiana doctor with established admitting privileges to begin performing abortions; and unmet demand would not induce even one out-of-state abortion provider to relocate to Louisiana.” (Gorsuch, 12)

ERLC interns Julia Stamper, Sloan Collier, and Seth Billingsley contributed to this article

5 facts about the Supreme Court case on Texas abortion clinics
By / Mar 3

Yesterday the Supreme Court heard oral arguments in the case of Whole Woman's Health v. Hellerstedt, the most significant abortion case since Planned Parenthood v. Casey in 1992. Here are five facts you should know about the case:

1. After the Kermit Gosnell scandal created an awareness of the unsafe, unsanitary, and largely unregulated conditions in abortion clinics in America, the State of Texas passed House Bill 2. According to Alliance Defending Freedom, HB2 —which became law in 2013 — mandates that abortion facilities adhere to ambulatory surgical center requirements common to most outpatient facilities, and it also requires abortionists to have admitting privileges at a hospital within 30 miles of the abortion facility to be able to handle emergencies when something goes wrong. (Note: ERLC joined with other faith groups in submitting a brief to the U.S. Supreme Court in support of the law.)

2. Whole Woman's Health, an abortion provider in Texas, challenged the law, claiming it was expensive, not medically necessary, and interfered with women's health care. In June 2015, the Fifth Circuit Court in New Orleans disagreed and largely upheld the contested provisions of the Texas law. The Fifth Circuit ruled that, with minor exceptions, the law did not place an undue burden on the right to an abortion. In their appeal of the case to the Supreme Court, the plaintiffs argued that when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and that the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest. The Obama administration has joined in the case in full support of the clinics and doctors.

3. Prior to the adoption of the new restrictions by the Texas legislature, the state of Texas had forty-one clinics performing abortions. But as a result of partial enforcement of the new law, says Lyle Denniston, that number has dropped to nineteen, and clinic operators have argued that the total number may drop to ten, statewide, if the Court were to uphold the law. The conservative justices on the Court, however, said there was little evidence that clinics have closed or would close because of the law.

4. According to Reuters, the court's four liberal justices (Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) indicated they believed the law intrudes on a woman's constitutional right to end a pregnancy established in Roe v. Wade. Justice Kennedy, however, expressed doubt about claims by abortion providers who asserted that the Texas law forced numerous clinics to shut down. Kennedy suggested sending the case back to a lower court to get further evidence on the law's impact, including an assessment of the ability of existing Texas clinics to meet the demand for abortions.

5. Because of the death of Justice Scalia, the best pro-lifers can hope for is that Justice Kennedy sides with the three conservative Justices (Justices Roberts, Thomas, and Alito) for a 4-4 split decision. In such situations, the ruling of the lower court is affirmed. This would mean that the Texas regulations would remain intact but that no nationwide legal precedent on whether other states could enact similar measures would be established. The final ruling is expected to be handed down in June. 

Image Credit: Americans United for Life