For continuing coverage of the June Medical Services case before the U.S. Supreme Court, check out our Special Report.
There is no good reason why U.S. Deputy Solicitor General Jeffrey Wall should have been defending a Louisiana abortion restriction at the U.S. Supreme Court Wednesday, but there he was.
And his participation in oral arguments in June Medical Services v. Russo shows that the Trump administration has few priorities of greater significance than eroding abortion rights whenever and wherever it can.
June Medical Services involves a challenge to Act 620, a Louisiana law that mandates abortion providers maintain admitting privileges at hospitals within 30 miles of the clinic where they provide abortions. Attorneys from the Center for Reproductive Rights (CRR) challenged Act 620 on behalf of providers in the state, while the Louisiana solicitor general’s office has defended the law for the five years the litigation has been pending.
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Yet on Wednesday, Louisiana Solicitor General Elizabeth Murrill stepped aside after 20 minutes of defending Act 620 so that Wall, on behalf of the Trump administration, could do the same.
There are two central issues the Supreme Court must answer in June Medical Services. First, do abortion providers have legal standing to challenge certain types of abortion restrictions? And second, did the Fifth Circuit Court of Appeals get it wrong when it ruled Act 620 could take effect?
First the qualified good news: It appears that there aren’t five votes on the Supreme Court to rule that abortion providers can’t sue on behalf of their patients in cases like this. Justice Samuel Alito was the most focused on the standing question, aggressively questioning attorney Julie Rikelman from CRR. That suggests that at least he is willing to upend over 40 years of case law holding abortion providers have legal standing to challenge abortion restrictions on behalf of their patients.
But are there the five votes needed to actually reverse that precedent? That’s unclear. Neither Justice Neil Gorsuch nor Chief Justice John Roberts asked a question related to standing during Wednesday’s arguments. In fact, neither Justice Clarence Thomas nor Gorsuch asked a single question during the entire hour of arguments.
But Roberts’ silence on the standing issue was the most curious. Gorsuch is unlikely to veer from his fellow conservatives in June Medical Services, including on the question of provider standing. And Roberts is considered somewhat of a standing hawk. During his time as chief justice, Roberts has consistently voted to limit legal standing, so it’s reasonable to think he’s at least tempted to do the same in June Medical Services.
“This case is about respect for precedent,” Rikelman said as she opened her argument for ruling against Louisiana’s anti-abortion law.
That respect for precedent includes the precedent of third-party standing in abortion cases. As Justice Stephen Breyer noted, the Supreme Court has recognized the rights of abortion providers to sue on behalf of their patients in at least eight cases. A vote against standing in June Medical Services is a vote against precedent. It’s a vote for a radical reinterpretation of abortion rights law that might be too much for Roberts to endorse in this case.
That’s especially true when the Supreme Court could end up crafting a decision that effectively guts the other precedent at issue in this case, Whole Woman’s Health v. Hellerstedt. That brings us to the bad news portion of Wednesday’s arguments, since the results of such a decision would be disastrous, for both Louisiana and abortion access nationwide.
In 2016, the Supreme Court struck as unconstitutional parts of a Texas admitting privileges law identical to the Louisiana law at issue in June Medical Services. In upholding the Louisiana requirement, the Fifth Circuit Court of Appeals in September 2019 ruled that Whole Woman’s Health is basically limited to the facts and circumstances of Texas. The effect of that decision is to make it functionally impossible to strike as unconstitutional entire categories of abortion restrictions—a point Justice Brett Kavanaugh picked up on during his only line of questioning Wednesday.
Does Whole Woman’s Health mandate that all admitting privileges requirements are unconstitutional, or is it possible that those medically unnecessary requirements could be unconstitutional in one state, but constitutional in another?
The answer to this question also rests with Roberts, his fidelity to precedent, and his willingness to accept the mountain of lies Louisiana served up in defense of Act 620. In Whole Woman’s Health, the Supreme Court found that admitting privileges laws serve no medical benefit and that the rule would force many clinics to close, substantially burdening abortion rights. The Supreme Court declared the Texas requirement unconstitutional, but did that decision declare all admitting privileges requirements unconstitutional? We’ll find out that answer when the Court releases its decision later this year.
And it’s the chief justice’s potential pliability in this case that best explains Wall’s participation in oral arguments Wednesday. We all know the Trump administration is vehemently anti-choice. Trump campaigned on a promise to appoint judges that would overturn Roe v. Wade, and he’s made good on that promise. It’s not uncommon for the U.S. Department of Justice to weigh in on cases when it’s not a party.
But it’s not routine. So we should ask why this case and why now.
We should ask why the DOJ is also chiming in to defend other state-level abortion restrictions like Ohio’s abortion ban. In that case, the Trump administration said it wants to participate in oral arguments and help defend Ohio’s ban because “the United States has an interest in the scope of the Supreme Court’s undue-burden standard applied in the context of abortion regulations and has participated in cases involving state abortion laws.”
That statement signals we should expect to hear more from the Trump administration as litigation challenging extreme abortion bans works its way through the federal courts.
On Wednesday, Wall was before the Supreme Court to get the justices used to the fact that they will likely be hearing a lot from the Trump administration on abortion rights in the coming years. Wall played cleanup for Murrill, making a substantive defense of Louisiana’s law and attacking the rights of abortion providers. But he was making that argument almost exclusively for Roberts’ benefit. Wall told the justices that they could rule in favor of Louisiana without overruling Whole Woman’s Health, giving a nod to the lingering concern Roberts may have about the damage his reputation would take if the Supreme Court reverses course on abortion rights after less than five years.
Wall told the justices that this was the first time the Court had been faced with the kind of allegations of conflicts of interest between abortion providers and patients like the kind lobbed by Louisiana and anti-choice activists here. That gives the justices a fresh opportunity to revisit legal standing precedent, Wall said, again speaking almost exclusively to Roberts.
Wall added nothing substantive to Wednesday’s arguments. His job was all political—to deliver the chief justice’s vote for anti-choice activists and to make it clear that the Trump administration would spare no resource in attacking abortion rights. We’ll know later this summer if it worked.