In February, reproductive rights advocates found an unlikely ally at the U.S. Supreme Court: Chief Justice John Roberts.
Roberts joined his liberal colleagues in voting to temporarily block a decision by the Fifth Circuit Court of Appeals that would have allowed a Louisiana abortion law designed solely to shutter clinics take effect. On Wednesday, advocates from the Center for Reproductive Rights (CRR) filed their formal request with the Court to take the case. The petition, aimed squarely at Roberts, is designed to settle any debate as to the power of Whole Woman’s Health v. Hellerstedt as Supreme Court precedent.
The law at issue, Act 620, would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the care. Louisiana lawmakers admitted they modeled Act 620 specifically after the provisions in Texas’ HB 2 that the Court eventually declared unconstitutional in 2016, in the Whole Woman’s Health decision. A federal district court temporarily blocked Act 620 from taking effect in 2014 and again in 2016 before permanently blocking it in April 2017. Then, in September 2018 a three-judge panel from the Fifth Circuit reversed that district court decision. In late January, the Fifth Circuit declined to rehear the case—which prompted an emergency petition to the Supreme Court by reproductive rights advocates.
Roberts voted to block that Fifth Circuit decision. Although that vote was clearly a win for reproductive rights, it would be premature to describe it as “pro-choice.” It was more “pro-status quo.” Wednesday’s petition puts that status quo vote to the test.
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Advocates have asked the Court to grant their request to summarily reverse the Fifth Circuit. That means they want the Court to overturn the Fifth Circuit without briefs or oral arguments on the merits of the case. This would be a legal equivalent to the Supreme Court saying “nope” as opposed to “not quite, try again;” a summary reversal wouldn’t send the case back to the Fifth Circuit for future arguments like a more typical remand would. It would instead reinstate the extensive district court findings blocking Act 620 to begin with.
According to the petition filed with the Roberts Court, summary reversal is appropriate here because, by Louisiana’s own admissions, Act 620 is identical to provisions the Roberts Court already struck down as unconstitutional. A failure to issue a summary reversal here would send a signal to the lower courts that they could continue to go rogue—as the Fifth Circuit did—on precedent with which the judges disagree.
“Summary reversal would reestablish this Court’s authority to say what the law is and reaffirm the principle that lower courts are absolutely bound to follow this Court’s precedents—a principle that is most likely to be tested in controversial and politically charged cases such as this,” the petition states.
To drive this point home, the petition cites work on the necessity for following precedent co-authored by Justices Neil Gorsuch and Brett Kavanaugh.
Summary reversal would also allow Roberts an out of this fight. He could both side with settled precedent and avoid a big abortion rights showdown just three years after Whole Woman’s Health and almost a year after Justice Kennedy’s retirement.
It’s a smart request.
There is, of course, no guarantee it works—a fact CRR attorneys acknowledge in their petition. “No doubt Louisiana will argue that the Fifth Circuit’s aggressive fact-finding makes this case a poor candidate for summary reversal,” the petition states. With this in mind, advocates are also asking the Court to agree to hear the case on the merits as an alternative.
This is a much riskier request, but an unavoidable one.
As advocates note in their petition, refusing to grant cert at all would “leave the irredeemably flawed decision of the Court of Appeals on the books, and it would weaken the constitutional protections recognized in Whole Woman’s Health—at the very least— in Louisiana, Texas, and Mississippi.” Denial of cert would likely also have devastating consequences in places like Missouri, where the fight over admitting privileges requirements in that state is working its way through the extraordinarily conservative Eighth Circuit Court of Appeals.
“Denial of certiorari also would dissolve this Court’s stay of the Fifth Circuit’s decision and put Act 620 into immediate effect,” the petition continues. “Should that happen, abortion access in Louisiana, which is already hanging by a thread, would be reduced to just one doctor overnight.”
But agreeing to hear the case on the merits rather than issuing a summary reversal would signal that the Court is interested in at least revisiting some of Whole Woman’s Health—which is why advocates approach this request more delicately.
“No seismic changes have occurred in the past three years that would justify overruling Whole Woman’s Health,” the petition states. “Whether a decision of this Court is to be modified in any respect, however, is this Court’s solemn responsibility after full consideration of the merits.”
It would be difficult to read the Court hearing a case on the merits here in June Medical Services v. Gee as good news for abortion rights. While there may not have been a seismic shift in abortion rights law in the last three years, there has been a seismic shift on the Court with Justice Kavanaugh replacing Justice Kennedy. The Court granting review wouldn’t necessarily signal a reversal of Whole Woman’s Health. Indeed, it could provide the Court an important opportunity to reaffirm its holding. But given the Court’s conservative majority and Roberts’ own voting history, that idea makes me nervous.
Attorneys for the State of Louisiana will have a little more than a month to respond to Wednesday’s filing, though it is not uncommon for parties to ask for—and the Court to grant—an extension. Should that happen, it is unlikely the Court will consider the petition this term, instead of holding it for consideration until the justices reconvene in October.