How the Supreme Court reached its disastrously wrong decision in June Medical Services, L.L.C. v. Russo

 By Dave Andrusko

If you have time, reading the Supreme Court’s preposterous 5-4 decision gutting Louisiana’s 2014 protective abortion law is very much worth your while.

Alas, that Chief Justice John Roberts voted with the four reliably pro-abortion justices in June Medical Services, L.L.C. v. Russo is increasingly less a surprise than a disappointment.  

In his concurring opinion, Roberts took the position that June and the 2016 Whole Woman’s Health v. Hellerstedt decision essentially raised the same issues. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” 

But, as James Bopp Jr., NRLC’s general counsel put it succinctly, “He is apparently adhering to an extreme view of stare decisis.” As we shall see below, two of the dissenters—Justices Thomas and Alito—demonstrated just how far off point Justice Roberts’ position is.

The crux of the majority opinion is identical to the Abortion Industry’s contention: that Louisiana’s 2014 “Unsafe Abortion Protection Act” (Act 620)not only provided no health benefits to women, if enforced (it’s been held up in court), only one abortionist would be left standing. 

The dissenters eviscerated both contentions by digging deep into the record and illuminating  how easy it is for pro-abortionists to prevail when courts uncritically accept their “evidence” and their professions of “good faith” (in this case, that abortionists made a good faith effort to get admitting privileges  at a local hospital).

Here are four takeaways from the dissents of Justice Thomas and Justice Alito. (Tomorrow I’ll discuss Justice Gorsuch’s and Justice Kavanaugh’s dissents.)

#1. “Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction,” Justice Thomas begins. “The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.” 

Later “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” [where Justice Blackmun purported to find support for his conclusion in Roe v. Wade].

#2. Writing for the Washington Post this morning, Robert Barnes notes, “Practitioners have said it has proven impossible for most of the doctors to acquire the privileges, leaving only one eligible to perform the procedure.” It cannot be stressed enough how crucial it was to the plaintiffs’ success that the 5-member majority swallowed this whopper whole.

As he did in Whole Woman’s Health v. Hellerstedt, however, Justice Alito took the time to see if this is true—or, to be more exact, would be true if Act 620 were upheld. But let me start with his opening paragraph, because it truly does summarize the core of his rebuttal:

The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt, and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way. 

Back to the alleged scarcity of abortionists, if Act 620 were upheld. How do we know that? Because the abortionists tell us so. And, of course, what incentive would they possibly have not to tell the truth? 

How about this multiplicity of reasons not to make a “good faith” effort.

Justice Alito writes

If these doctors had secured [admitting] privileges, that would have tended to defeat the lawsuit. Not only that, acquiring privileges would have subjected all the doctors to the previously described hospital monitoring, as well as any other obligations that a hospital imposed on doctors with privileges, such as providing unpaid care for the indigent. Thus, in light of the situation at the time when the doctors made their attempts to get privileges, they had an incentive to do as little as they thought the District Court would demand, not as much as they would if they stood to benefit from success.

Justice Alito devotes page after page to pouring over the record to see how vigorously the unidentified abortionists sought admitting privileges. His conclusion?

Under the reasoning just described, the factual finding on which the plurality and THE CHIEF JUSTICE rely—that the Louisiana law would drastically reduce access to abortion in the State—depends on the District Court’s finding that the doctors in question exercised “good faith” in their quest for privileges, but that test is woefully deficient. 

Not only did the District Court apply the wrong test, but the evidence in the record fails to show that the doctors made anything more than perfunctory efforts to obtain privileges.

Putting all this together, it is apparent that the record does not come close to showing that Doe 2, Doe 5, and Doe 6 made the sort of effort that one would expect if their ability to continue performing abortions had depended on success. These doctors had an incentive to do the bare minimum that they thought the judge would demand—and as it turned out, the judge did not demand much, not even an appearance in his courtroom. In short, the record does not show that Act 620 would drive any of these doctors out of abortion practice, and therefore the Act would not lead Doe 3 to leave either. It follows that the District Court’s finding on Act 620’s likely effects cannot stand.

This is absolutely foundational. Yet a first glance at news accounts from the major news outlets found no mention of Alito’s fact-based conclusions.

And, oh by way, no one (besides Justice Alito) bothered to ask the obvious question: why should the assumption be that no other abortionist would try to obtain admitting privileges? It’s as if “Doe 1” through “Doe 6” are the only six abortionists who could possibly apply, that they would not be replaced by others.

#3. This, obviously, is not to ignore the majority’s conclusion that Act 620 provided no health benefits to women. Writing for the four pro-abortion justices, Justice Stephen Breyer agreed that Louisiana’s law not only “poses a ‘substantial obstacle’ to women seeking an abortion” but also “offers no significant health-related benefits.”

Writes Justice Alito, “The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record.” Here are a series of keen counters offered up by Justice Alito

In any event, 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 by ensuring that physicians who perform abortions meet a higher standard of competence than is shown by the mere possession of a license to practice. In deciding whether to grant admitting privileges, hospitals typically undertake a rigorous investigative process to ensure that a doctor is responsible and competent and has the training and experience needed to perform the procedures for which the privileges are sought. As the Fifth Circuit explained, “hospitals verify an applicant’s surgical ability, training, education, experience, practice record, and criminal history. These factors are reviewed by a board of multiple physicians.” …

The standards used by the great majority of hospitals in deciding whether to grant privileges clearly show that hospitals demand proof of a higher level of competence. …

Although the plurality contends that the review conducted by hospitals adds little to the vetting undertaken by the State Board of Medical Examiners (Board), that is not true. Hospitals look beyond the mere possession of a license, and they do that for very obvious reasons.

#4. Let me conclude with a quote from Louisiana State Senator Katrina Jackson, who, as a state Representative, authored the bill:

“The Supreme Court has issued a tragic decision that continues its practice of putting the interests of for-profit abortion businesses ahead of the health and safety of women. Together with my colleagues, both Democrats and Republicans and women and men, we passed the Unsafe Abortion Protection Act to protect the health and safety of women in Louisiana. While today’s decision is not what we wanted, we will never stop working to put the women of Louisiana above the interests of the abortion businesses.”