Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at dorfonlaw.org.

Chief Justice John Roberts surprised some observers when he joined his four more liberal colleagues to grant a stay of the decision by the U.S. Court of Appeals for the 5th Circuit in June Medical Services v. Gee. The stay blocked Louisiana’s law requiring doctors performing abortions to have admitting privileges at local hospitals. The petitioners argued that the Louisiana law was substantially similar to the Texas admitting privileges law that the Supreme Court invalidated less than three years ago in Whole Woman’s Health v. Hellerstedt. The petitioners also contended that the distinctions drawn by the appeals court between the two states’ laws were unpersuasive. The chief justice dissented in Whole Woman’s Health. By voting to stay the Louisiana law, was he signaling a retreat from his position there? Does he now accept the court’s abortion jurisprudence as settled?

Maybe, but there is a simpler and likelier explanation. Roberts cares a great deal about the Supreme Court as an institution. When a state court or lower federal court defies or evades the high court’s precedents, it challenges the court’s authority. Accordingly, it is easy to imagine that the chief justice thinks Whole Woman’s Health and the cases it applied — including Roe v. Wade and Planned Parenthood v. Casey — should be overruled. However, he does not take kindly to lower courts usurping his court’s prerogative of deciding whether and when to overrule its own cases.

If institutionalism better explains Roberts’ stay vote than does a change of heart on the merits, then the questions posed by this symposium — should the court grant certiorari and, if so, how should it rule? — are highly problematic for citizens, lawyers and scholars who, like me, believe the court should not cut back on the constitutional abortion right.

To be slightly more precise, only the first question poses a problem. The second question is easy. If the Supreme Court grants review, it should summarily reverse the 5th Circuit on the authority of Whole Woman’s Health, which was itself correctly decided. As I argued in an essay for a SCOTUSblog symposium on that case, Casey did not displace that portion of the holding in Roe that forbids the state from imposing obstacles to abortion simply by the pretense of promoting women’s health.

Moreover, Justice Stephen Breyer’s majority opinion in Whole Woman’s Health helpfully clarified what was already implicit in the notion of an undue burden — that whether a law regulating abortion is constitutional depends in part on whether the burdens it imposes on women in fact promote health (or any other compelling government interest). Because an admitting-privileges requirement does not advance the state’s asserted health interest in any meaningful way — in Texas or Louisiana — it is unconstitutional.

If I could say with confidence that a majority of the current Supreme Court would faithfully apply its abortion jurisprudence, then I would urge the court to grant the petition for a writ of certiorari in June solely for the purpose of summarily reversing the 5th Circuit. Because I lack that confidence, I am uncertain what to urge.

Should the Supreme Court deny certiorari in June, its stay order would dissolve by its own terms. The result would be to deny access to safe legal abortion to a great many women in Louisiana. But that’s not all. Allowing the 5th Circuit ruling to go into effect would embolden that court to uphold other restrictive laws from Louisiana, Mississippi and Texas. It would send the same signal to other federal judges around the country — a group that becomes more hostile to abortion rights practically by the day, thanks to the laser-like focus on transforming the judiciary of Senate Majority Leader Mitch McConnell and the Trump administration.

Yet bad as a cert denial would be for abortion rights, a cert grant poses the danger of an outright overruling of Roe, Casey and Whole Woman’s Health. More likely but perhaps equally dangerously, the Supreme Court could grant cert in June, place the case on its plenary docket, and, following briefing and argument, affirm the 5th Circuit’s judgment upholding the Louisiana law based on some unpersuasive distinction between the Texas and Louisiana laws.

There is precedent for such a move. In 2000, in Stenberg v. Carhart, the Supreme Court invalidated Nebraska’s “partial-birth” abortion ban, but seven years later, in Gonzales v. Carhart, it upheld a federal partial-birth ban. Although the court invoked some relatively minor differences between the Nebraska and federal laws, the real difference was in the court’s personnel. In the interim, Justice Samuel Alito replaced Justice Sandra Day O’Connor; flipping that vote flipped the outcome.

Likewise, since the Supreme Court decided Whole Woman’s Health, Justice Neil Gorsuch has filled the vacancy left by Justice Antonin Scalia’s death, and Justice Brett Kavanaugh has taken the seat that opened upon the retirement of Justice Anthony Kennedy, who cast a fifth vote to strike down the Texas law in Whole Woman’s Health. As we have already seen from Kavanaugh’s dissent from the stay order in June, he seems prepared to draw some very fine distinctions to avoid invalidating the Louisiana abortion law.

That leaves Roberts as the one justice even potentially in play. By voting to grant the stay in June, he indicated that he does not think the 5th Circuit persuasively distinguished the Texas and Louisiana laws. Perhaps with more time he will find some hitherto unknown distinction persuasive, but it is also possible that he will vote to overrule Whole Woman’s Health, based on reasoning like that in Alito’s dissent in that case, which Roberts joined. In Part III of his Whole Woman’s Health dissent, Alito argued that the Texas law did not unduly burden the abortion right, because, among other things, based on one tendentious reading of the record, 95 percent of Texas women would have to travel “only” a distance of 150 miles or less to find an abortion provider.

It is hard to say whether abortion rights would be less secure if the Supreme Court in June were to pretend to apply its pre-Whole Woman’s Health precedents while in fact hollowing them out or were simply to overrule its abortion-rights precedents forthrightly. At least with the latter course, defenders of abortion rights would have a focal point around which to rally in the political sphere.

That said, one should not spend much energy wondering whether disingenuous application or outright rejection of the abortion cases is worse. The Supreme Court under the leadership of Roberts has tended to employ these moves in tandem, first weakening a legal doctrine or principle and then discarding its empty husk.

Before the Court held the coverage formula of the Voting Rights Act unconstitutional in Shelby County v. Holder, it first purported to duck the issue in Northwest Austin Municip. Dist. No. One v. Holder. Before the Roberts Court abandoned the Burger Court precedent upholding agency-shop arrangements against free speech challenges in Janus v. AFSCME, it questioned but purported to apply that Burger-era precedent in Knox v. SEIU, Local 1000. If, in June, the Roberts Court undercuts but does not formally abandon the constitutional right to abortion, the decision should be understood as the opening salvo in a longer contest.

On second thought, “opening” is the wrong word. A Supreme Court ruling upholding the Louisiana law in June would be the near-culmination of a near-half-century campaign. Through a combination of luck, the Electoral College, and what Professors Joseph Fishkin and David Pozen call “asymmetrical constitutional hardball,” Republican presidents have named 14 of 18 justices in the last 50 years, despite losing the popular vote in a majority of presidential elections during that period. Given how central overturning Roe has been to the Republican coalition, it is hardly surprising that that the abortion right is precarious. The remarkable fact is that it remains on the books at all.

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Past cases linked to in this post:

Gonzales v. Carhart, 550 U.S. 124 (2007)
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018)
Knox v. Serv. Employees Int’l Union, 132 S. Ct. 2277 (2012)
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
Roe v. Wade, 410 U.S. 113 (1973)
Shelby County v. Holder, 570 U.S. 529 (2013)
Stenberg v. Carhart, 530 U.S. 914 (2000)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)

Posted in June Medical Services, LLC v. Gee, Featured, Symposium on what’s next in June Medical Services, LLC v. Gee

Recommended Citation: Michael Dorf, Symposium: In the Louisiana abortion case, maybe the best defense is a good offense, SCOTUSblog (Mar. 6, 2019, 10:18 AM), https://www.scotusblog.com/2019/03/symposium-in-the-louisiana-abortion-case-maybe-the-best-defense-is-a-good-offense/