For full coverage of June Medical Services v. Russo, check out our Special Report.
The U.S. Supreme Court on Wednesday hears arguments in the first abortion rights case to come before the Court since Justice Brett Kavanaugh replaced Justice Anthony Kennedy.
Kavanaugh’s confirmation tipped the Court’s scales decidedly in favor of the anti-choice movement. And while much of the attention to June Medical Services v. Russo has focused on the role Kavanaugh’s confirmation will play in the outcome of the case and how his presence on the bench will affect abortion rights, this moment is all about Justice Clarence Thomas.
Thomas has built an entire jurisprudential legacy attacking the constitutional legitimacy of abortion rights. He’s waited his entire career for the opportunity to draft the opinion overturning Roe v. Wade. With June Medical Services, he’s closer than ever to getting his chance.
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At issue in June Medical Services is Louisiana’s Act 620, a law mandating that abortion providers maintain hospital admitting privileges at nearby hospitals. The law is identical to the Texas law declared unconstitutional in 2016 in Whole Woman’s Health v. Hellerstedt. Despite that fact, the conservative Fifth Circuit Court of Appeals ruled Louisiana’s law could take effect, prompting advocates to ask for Supreme Court intervention. The Roberts Court stepped in, put the Fifth Circuit decision on pause, and then later agreed to take the case.
That Louisiana’s Act 620 has found its way before the Roberts Court at all is a troubling sign for the future of abortion rights and access. Whole Woman’s Health should have permanently put to bed questions concerning the constitutionality of hospital admitting privileges requirements. But never underestimate the pluck and determination of the anti-choice movement when it comes to finding fresh arguments to attack established law, nor the willingness of the judges on the Fifth Circuit to take the bait. That’s precisely what happened in June Medical Services.
To get around the decision in Whole Woman’s Health that admitting privileges laws are unconstitutional, attorneys for Louisiana argue that Whole Woman’s Health is essentially limited to the facts and circumstances of Texas. In other words, they claim the only thing that decision settled was the fact that HB 2 unduly burdened abortion rights in Texas. Louisiana’s Act 620 may be basically identical in substance and spirit to the unconstitutional HB 2, but that doesn’t mean the impact will be the same, attorneys for the state claim. They argue Act 620 should be allowed to take effect and the courts can sort out afterwards if there’s evidence that closing clinics and decimating access unduly burdens abortion rights.
Many of these arguments should sound familiar to the Roberts Court. In Whole Woman’s Health, supporters of HB 2 argued that the way to determine if Texas’ admitting privileges requirement unduly burdened abortion rights was to let it take effect and sort out the consequences in court. And we saw exactly what happened in Texas when its admitting privileges law was allowed to take effect: Clinics closed, never to reopen. Entire swatches of the state found themselves without an abortion provider. Access in Texas remains dire even after the Court declared its restrictions unconstitutional.
But before the Court gets to this issue of whether Louisiana’s law can take effect and whether courts are to engage in a state-by-state analysis of identical abortion rights restrictions, it has to answer a threshold question: Can abortion providers even bring a challenge to the Louisiana law? And this is where Justice Thomas makes his entrance.
Thomas filed a separate dissent in Whole Woman’s Health that effectively forecasts the arguments attorneys for Louisiana are making in June Medical Services, in particular the standing challenge in this case.
In June Medical Services, attorneys for Louisiana have asked the Court to rule that abortion providers do not have legal standing to challenge Act 620 on behalf of their patients. They argue that abortion providers have a financial incentive to skirt “health and safety” restrictions like Act 620 and thus can’t be trusted to faithfully advocate in the best interests of their patients—they simply want to “provide as many abortions as possible.”
Courts have recognized the third-party standing rights of abortion providers to sue on behalf of their patients nearly as long as the courts have recognized abortion rights. So it really can’t be overstated just how radical it is for attorneys for the state of Louisiana to ask the Court to revisit this doctrine.
The request might be radical, but anti-choice activists have reason to believe conservatives on the Roberts Court will be receptive to it. In Thomas’ dissent in Whole Woman’s Health, he challenges the standing of providers to bring claims like the one at issue in June Medical Services in the second paragraph. This is right after he declares abortion a “putative” right.
“This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s right to abortion,” Thomas writes in Whole Woman’s Health.
“Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child,” Thomas writes.
His dissent then goes on to dismiss the idea that pregnant people would face “insurmountable” obstacles to prevent them from bringing their own lawsuits. David Cohen and Carole Joffe explain why Thomas’ position is dangerous nonsense in an op-ed for the Washington Post. The reality is a few patients may be able and willing to bring their own lawsuits, but a vast majority will not. And that means, if the Court eviscerates third-party standing in June Medical Services, abortion restrictions that should be declared unconstitutional by the courts will likely take effect simply because no one will have been able to challenge them.
This is not a hypothetical possibility. The Fifth Circuit Court of Appeals is waiting on a decision in June Medical Services to decide if providers can challenge Texas’ fetal burial requirements. A federal court in Utah has similarly put on hold a challenge to the state’s 18-week ban pending resolution of the third-party standing issue in June Medical Services. Should the Court rule that abortion providers do not have standing to challenge admitting privileges laws in June Medical Services, it is possible those other courts will find abortion providers do not have standing to challenge fetal tissue disposal requirements in Texas. Or in Indiana, where another draconian fetal remains disposal bill is making its way through the legislature.
If courts find that abortion providers do not have standing to challenge pre-viability bans like Utah’s 18-week ban, that would create new openings for anti-choice activists to argue that providers similarly cannot challenge six-week abortion bans.
One in four federal court judges are now Trump appointees dedicated to overturning Roe v. Wade. If the Supreme Court finds that providers lack legal standing to challenge health and safety restrictions on behalf of their patients, is there any reason to think the federal courts would find they have legal standing to challenge any abortion restriction on their patients’ behalf?
That would leave it to pregnant people to challenge these laws—or let them take effect.
There’s been a lot of speculation as to whether a decision in favor of Louisiana in June Medical Services will overrule Roe v. Wade outright, or whether it will instead open the door for a new wave of sham abortion restrictions that leaves access in place in only a handful of locations.
The answer to that question lies with conservatives on the Court.
In Whole Woman’s Health, Justices Samuel Alito and John Roberts filed a separate dissent from Thomas’, arguing that the Texas case should never have made it to the Court to begin with. Thomas signed on to that dissent as well. But the other justices refrained from joining in Thomas’ direct assault on the legitimacy of abortion rights jurisprudence. Does that mean they disagree with Thomas and believe that abortion rights are more than “putative”? I doubt it. Roberts—who is the likely deciding vote in June Medical Services—has been laser-focused on limiting standing in federal cases generally. Siding with Louisiana here and eviscerating abortion provider standing would allow Roberts to carry on his legacy of closing the courthouse doors to as many litigants as possible without wading into the merits of June Medical Services.
Aside from Roberts’ vote last year to stay the Fifth Circuit’s decision to allow Act 620 to take effect immediately, the chief justice has yet to cast a vote in favor of abortion rights, and he probably won’t do so in this case. And that wasn’t a vote in favor of abortion rights as much as it was a vote in favor of maintaining the status quo. Quite simply, the Fifth Circuit went rogue in its ruling to let Act 620 take effect, and Roberts’ vote to put that ruling on pause was designed to send a very clear signal to appellate judges not to forget the role of proper procedure in their zeal to gut abortion rights.
Roberts could also split the difference, side with Louisiana, and find that Whole Woman’s Health v. Hellerstedt is effectively limited to the facts and circumstances of Texas, allowing Louisiana’s admitting privileges law to take effect while rejecting attacks on provider standing. Such a move could help further Roberts’ reputation as an institutionalist and, with a presidential election around the corner, perhaps buffer the Court from further claims that its conservatives are merely rubber-stamping the most extreme Republican priorities. If Roberts votes that way, let’s be clear that he’s doing so to come to a political conclusion on abortion rights—not a legal one.
And it would be a political decision with devastating consequences. Letting Act 620 take effect could leave Louisiana with only one provider. It might even become the first state in the country without an abortion provider.
Whether June Medical Services ends up being the undoing of Roe, or if it just ends up like Planned Parenthood v. Casey or Gonzales v. Carhart and fundamentally weakens it, Thomas will be at the center of shaping this next generation of abortion rights jurisprudence. He’s built up to this moment, steadily shaping a coherent jurisprudential narrative.
Just last year, Thomas went out of his way time and time again to attack the legitimacy of legal abortion. He’s trained an entire army of fellow ideologues, many of whom are now federal judges. In fact, no Supreme Court justice has more former clerks appointed to the federal bench than Thomas. And with legal challenges to the most extreme abortion bans working their way through the appellate courts, we will soon see Thomas’ impact.
June Medical Services may not end up being Thomas’ spotlight moment on abortion rights. Most likely it will be Roberts and Kavanaugh who get most of the attention in this case. But that won’t change the fact that June Medical Services signals the dawn of a new conservative era for abortion rights jurisprudence, and Justice Thomas is at the center of it all.