June 29, 2020

Supreme Court Decides June Medical Services L.L.C et al. v. Russo

On June 29, 2020, the U.S. Supreme Court decided June Medical Services L.L.C. et al. v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals, holding that abortion providers had standing to assert the constitutional rights of patients in challenging a Louisiana law requiring the providers to have admitting privileges at a nearby hospital, and the law was unconstitutional because it presented a substantial obstacle to women’s access to abortion.

In Act 620, Louisiana required all doctors who perform abortions to hold active admitting privileges at a hospital within 30 miles of where the abortion is performed. Five abortion clinics and four abortion providers challenged the constitutionality of the Act, claiming it violated the constitutional rights of patients to obtain an abortion. The district court held the Act to be unconstitutional and preliminarily enjoined its enforcement. After the Supreme Court invalidated a similar Texas law because it placed “a substantial obstacle in the path of a woman’s choice,”Whole Woman’s Health, 579 US __ (2016), the district court again held Act 620 unconstitutional. On appeal, the Fifth Circuit reversed, finding that Act 620 had far less impact on abortion rights and presented a greater benefit than the statute in Whole Woman’s Health.

The Supreme Court granted review and reversed without reaching a majority decision. On the question of standing, Justice Breyer authored a plurality opinion holding that the State of Louisiana had waived its challenge to the providers’ standing by conceding their standing in the district court. In addition, the plurality opinion reaffirmed the rule that abortion providers may “invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” This is consistent, the plurality wrote, with the general approach of allowing “plaintiffs to assert third-party rights in cases where the ‘enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.’” Chief Justice Roberts, in a footnote in his opinion concurring in the judgment, stated that he agreed that, “[f]or the reasons the plurality explains,” “the abortion providers in this case have standing to assert the constitutional rights of their patients.”

On the merits, the Chief Justice’s opinion provided the narrowest ground for striking down the Louisiana law and thus was controlling. The “legal doctrine of stare decisis,” the Chief Justice wrote, “requires us, absent special circumstances, to treat like cases alike.” Here, the Louisiana law “imposes a burden on access to abortion just as severe as that imposed by the Texas law” struck down in Whole Woman’s Health, and thus “Louisiana’s law cannot stand under our precedents.” The Chief Justice rejected the view that Whole Woman’s Health established a test requiring courts to weigh the asserted benefits of a law regulating abortion against the burdens it imposes on abortion access. Rather, citing the Court’s decision in Planned Parenthood v. Casey, the Chief Justice wrote that “[l]aws that do not pose a substantial obstacle to abortion access are permissible, so long as they are ‘reasonable related’ to a legitimate state interest.”

Justice Breyer announced the judgment of the Court and delivered an opinion in which Justices Ginsburg, Sotomayor, and Kagan joined. The Chief Justice filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion in which Justice Gorsuch joined and Justices Thomas and Kavanaugh each joined in part. Justice Gorsuch filed a dissenting opinion. Justice Kavanaugh filed a dissenting opinion.

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