Roe v. Wade: Continuing Developments

By Adam W. Marshall, Esq.

The last Footage:Advocacy article addressing the status of a woman’s right to access abortion services focused on the potential influence of President Donald Trump’s candidates for the United States Supreme Court. With each seat on the Court now occupied, it is worthwhile to keep tabs on cases that may ultimately reach the Court.

On February 7, 2019, the Supreme Court took action in June Medical Services, LLC v. Gee, a case from Louisiana related to this issue.

In 2014, the Louisiana Legislature overwhelmingly passed Act 620, also called the Unsafe Abortion Protection Act. Among the provisions of Act 620 is the requirement that doctors who perform abortions must have active admitting privileges at a hospital no more than thirty miles from the location at which abortions are performed.

Before the law became effective, plaintiffs, a group of doctors and clinics offering abortion services, sued to have the law declared unconstitutional as an undue burden on a woman’s access to abortion.

The United States District Court for the Middle District of Louisiana determined that Act 620 created “substantial burdens” to abortion access and struck down the statute. The District Court took the position that Act 620 was modeled after and functioned in the same manner as a Texas statute that the Supreme Court already determined was unconstitutional.

In 2016’s Whole Woman’s Health v. Hellerstedt, the Supreme Court determined that it was an undue burden for Texas to require physicians providing abortions to obtain active admitting privileges at a hospital not further than 30 miles from the abortion facility.

Justice Anthony Kennedy was a member of the Supreme Court when Whole Woman’s Health was decided, and he, along with Justices Ginsberg, Breyer, Sotomayor and Kagan, voted to hold the Texas law unconstitutional. Chief Justice Roberts and Justices Thomas and Alito voted against the majority and in favor of upholding the Texas Law (neither Justice Gorsuch nor Justice Kavanaugh were on the Court when the case was decided).

Louisiana appealed the decision of the District Court to the United States Court of Appeals for the Fifth Circuit. In September 2018, the Fifth Circuit reversed the District Court’s decision and ruled that Act 620 does not represent an undue burden, thereby reinstating the admitting privileges requirement for abortion providers.

Plaintiffs have requested that the United States Supreme Court accept its request to review the decision of the Fifth Circuit. The Supreme Court has not yet decided whether it will hear the case, and it may decline to do so.

Meanwhile, because the Fifth Circuit revived the statute, Act 620 was scheduled to go into effect in early February 2019. Plaintiffs requested that the Supreme Court issue a stay (or a delay) of Act 620 while it decides whether to hear plaintiffs’ appeal and, if the Court agrees to hear the appeal, that the stay be extended until the appeal is decided.

In a 5–4 decision on February 7, 2019, the Supreme Court agreed to put Act 620 on hold. Justices Ginsberg, Breyer, Sotomayor and Kagan voted in favor of the stay while Justices Thomas, Alito, Gorsuch and Kavanaugh voted against the stay. Chief Justice Roberts also voted in favor of the stay.

The decision to stay Act 620 should be interpreted as nothing more than a preliminary procedural ruling; how each Justice voted with respect to the stay should not be seen as predicting the ultimate outcome of any appeal. However, the District Court’s determination was based on a precedential holding (Whole Woman’s Health) with which Chief Justice Roberts disagreed at the time it was issued cannot be ignored.

Chief Justice Roberts testified at his confirmation hearing in 2005 that overturning Supreme Court precedent represents a “jolt to the legal system” and that to do so requires more than merely thinking that a prior case was wrongly decided. He also noted that there have been times in the Supreme Court’s history when overturning precedent was necessary.

How this view of the value of precedent may inform Chief Justice Roberts’ position in any ultimate appeal remains to be seen.

In the event of an appeal before the Supreme Court, a majority of the Court could agree with the District Court and hold that Act 620 must be rejected based on the clear precedent of Whole Woman’s Health. It is also possible that a majority may vote to overturn Whole Woman’s Health and reinstate Act 620.

A third possibility is that a majority may not overturn Whole Woman’s Health but may nevertheless uphold Act 620, perhaps finding that the undue burden associated with the Texas statute is not presented by the Louisiana statute based on facts specific to Louisiana.

Other unforeseen outcomes are of course possible as well (despite the preceding paragraphs, outcome prediction with the Supreme Court can be a fool’s errand), and the effect this case may have, if any, on the larger landscape of the right to choose is unknown. But the potential exists for this case to be an important one.

The decision whether to take the case will be made by the Supreme Court in the near future, and if the Court takes the case, it will likely be heard at some point during the term beginning October 2019. Stay tuned.