Don’t Fall for the John Roberts and Brett Kavanaugh Jedi Mind Trick

Special Report: COVID-19

Use quotes to search for exact phrases. Use AND/OR/NOT between keywords or phrases for more precise search results.

Commentary My Body. My Rules.

Don’t Fall for the John Roberts and Brett Kavanaugh Jedi Mind Trick

Imani Gandy

If Roberts and Kavanaugh nearly hoodwinked me in Wednesday's arguments, there’s a good chance they’re going to hoodwink a lot of people who have an inkling that something isn’t right with their argument.

For continuing coverage of the June Medical Services case before the U.S. Supreme Court, check out our Special Report.

During Wednesday’s oral arguments at the U.S. Supreme Court, Chief Justice John Roberts—with an assist from Justice Brett Kavanaugh—laid a trap we must not fall into.

We cannot let these conservative justices Jedi mind trick us into believing they can’t strike down Louisiana’s admitting privileges law—even though it is identical to the Texas law the Court ruled against four short years ago—because the weighing of these laws’ burdens and benefits is a factual issue that varies from state to state.

It’s a red herring. Smoke and mirrors. Don’t fall for it.

The Supreme Court can—and should—strike down Louisiana’s admitting privileges law because in 2016, in a case called Whole Woman’s Health v. Hellerstedt, the Court ruled that these clinic shutdown laws provide no medical benefit when analyzing the burdens of an identical Texas law. And since these laws have no medical benefit, it follows logically that no state has a valid interest in passing them, much less a compelling one.

Lawmakers in Louisiana claim these laws promote the health and safety of pregnant patients. Lawmakers in other states who have enacted—or tried to enact—such laws make similar claims: Ostensibly, these laws are enacted to reduce the risk to patients who suffer serious complications during an abortion, and to prevent abortion providers from abdicating their duty of care and leaving such patients to fend for themselves.

In reality, these laws are an undue burden on the constitutional right to an abortion. Lawmakers can scream about patient health and safety until they’re blue in the face, but the laws provide no medical benefit and amount to little more than harassment of abortion providers.

I must admit to having been on the verge of falling into the very same trap that I am warning you about. So think of this as a cautionary tale.

The admitting privileges law at issue in June Medical Services is Louisiana’s Act 620, and it requires abortion providers to maintain admitting privileges at a hospital within 30 miles. The law is identical to the Texas law that the Supreme Court struck down in Whole Woman’s Health. But attorneys for Louisiana insist that doesn’t matter. What happens in Texas has no relationship to what happens in Louisiana, and therefore the ruling in Whole Woman’s Health should be confined to Texas, they claim.

As I read the transcripts from Wednesday’s oral arguments, I came upon John Roberts’ first question to Julie Rikelman, the Center for Reproductive Rights attorney arguing on behalf of the providers. Roberts asked her: “Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state?”

That’s a reasonable question, I thought. After all, what attorney can stand up in open court and argue that the burdens of an abortion regulation in one state are going to be the same in another state? I kept reading.

“If the statutes are on the books in other states, and if the issues are raised there, is the same inquiry required in each case?” Roberts continued.

“Well, of course,” I thought. “The issue is going to be different in each state.”

And then Kavanaugh chimed in: “Suppose a state had ten clinics and two doctors for each clinic, but all 20 doctors could easily get the admitting privileges, so that there’d be no effect on the clinics, no effect on the doctors who perform abortions, and, therefore, no effect on the women who obtain abortions, would a law be constitutional in that state?”

Again, I thought to myself, “Well, of course. Why wouldn’t it be?”

And so I said to my colleague, Jessica Mason Pieklo, “I think I agree with Roberts and Kavanaugh. Why shouldn’t it be a state-by-state inquiry? Why should the Court’s ruling in Whole Woman’s Health invalidate all admitting privileges laws in every state when the law at issue was a Texas law and the benefits and burdens were specific to Texas?”

To which Jessica responded, essentially, by slapping me across the face Moonstruck-style and telling me to snap out of it.

“No!” she said. “Don’t fall into that trap!”

As soon as she said, “In Whole Woman’s Health, the Court ruled that these laws have no medical benefit…,” I finished her sentence: “And therefore there can be no valid government interest that these laws promote. Got it. Thanks for pulling me back from the ledge.”

Jessica then remarked that she had almost fallen into that same trap. And that’s why I felt it was critical for me to tell you, reader, not to fall into that trap. Because if Roberts and Kavanaugh nearly hoodwinked Jess and me—and we do this for a living—there’s a good chance they’re going to hoodwink a lot of people who otherwise have an inkling that something isn’t right with their argument.

That’s because something isn’t right with their argument.

And that something is this: Abortion is one of the safest medical procedures in the United States. Abortion complications necessitating emergency hospitalization rarely arise and there is, therefore, absolutely no need for an abortion provider to maintain admitting privileges at any hospital, much less a hospital within 30 miles of where the abortion is performed. So what benefit could an admitting privileges law possibly provide?

The 30-mile requirement is particularly peculiar, and gives Louisiana’s game away: Act 620 is about harassing providers and forcing them to comply with onerous and medically unnecessary regulations that are virtually impossible to meet.

As Justice Ruth Bader Ginsburg pointed out during oral arguments: “Most of these abortions don’t have any complications and the patient never gets near a hospital, but if she needs a hospital, it’s certainly not going to be the one near the clinic. She will be home.”

Precisely.

Even if Louisiana hadn’t admitted that the purpose of the law was to close clinics, forcing abortion providers in that state to seek out admitting privileges at local hospitals that won’t grant them either for religious reasons (because they operate under a Catholic directive and want nothing to do with abortion) or profit reasons (because hospitals don’t grant admitting privileges to doctors, like abortion providers, who cannot guarantee a minimum number of admissions) is a profound and frustrating waste of time. There is nothing to be gained from it. Any claims to the contrary are based on misconceptions (if I’m being charitable) or, as is more likely the case, outright lies about the dangers of abortion.

The Court in Whole Woman’s Health already addressed this issue. In that case, Justice Breyer, writing for the majority, referenced numerous peer-reviewed scientific studies showing that the complication rate for first trimester abortions is less than one-quarter of 1 percent and that the rate in second trimester abortion is less than one-half of 1 percent.

The Court also cited experts who testified that complications rarely require hospital admission, much less immediate transfer from an outpatient clinic, and that in the rare case that emergency hospitalization is required, the quality of care that the patient receives will not be affected by whether the person who performed the abortion has admitting privileges at the hospital admitting the the patient.

This is the case in every state, so a state-by-state inquiry into the benefits and burdens of admitting privileges laws—as suggested by His Eminent Reasonableness John Roberts—would be utterly pointless. Any burden invalidates the law because the law has no benefit.

It’s precisely because his question is so reasonable that I almost fell for Roberts’ okey-doke. Louisiana wants the Supreme Court to uphold a law that provides no medical benefit, or at least let it make the case that the burdens imposed on Louisianans are different than in Texas. But who cares if they’re different. The benefit of the law in Louisiana is the same as the benefit of the law in Texas: zero.

And that should be the end of the discussion.