The second question before the Court June Medical Services v. Russo
“Nebulous.” “Unworkable.” “Confusing.” “Contentless.” “A travesty.” “Vague.” “Opaque.” “Haphazard” “Characterized by Delphic confusion and protean change.”*
These are some of the adjectives used by 20 Attorneys General, 207 members of Congress, and dozens of others to describe the current state of abortion jurisprudence. The Supreme Court’s rulings in abortion cases have been, by that Court’s standards, chaotic, particularly following its 5-3 decision in Whole Women’s Health v. Hellerstedt in 2016. In that case, the Court struck down a Texas admitting privileges law, holding that requiring abortionists to hold admitting privileges at local hospitals made it too difficult for women to get abortions. Because abortion doctors could not obtain the requisite hospital privileges, half of the abortion clinics in Texas closed, and women, the Court conjectured, may have to travel longer distances to get abortions. At the same time, the Court said the law did not materially advance the state’s interests in maternal health.
In Hellerstedt, the Court relied on the so-called “undue burden” test first enunciated in its 1992 decision in Planned Parenthood v. Casey. In Casey, the Court held that a law regulating abortion was unconstitutional if, in a “large fraction” of the cases in which the regulation was “relevant,” it would “operate as a substantial obstacle to a woman’s choice to undergo an abortion.”
For the past 28 years, lower courts have struggled to interpret and apply these vague terms to a variety of abortion restrictions and clinic regulations. Every few years, the Supreme Court itself weighs in, but rarely in a way that provides any clarity for lower courts or guidance for legislatures. In Hellerstedt, the Court purported to apply the Caseystandard, but further muddied the waters by engaging in a contorted balancing of the alleged burdens and benefits of the law.
The Hellerstedt Court painstakingly examined the size, location, staffing, hours of operation, patient flow, and clientele of each of Texas’s abortion clinics in an attempt to discover what might constitute an impermissible “undue burden” on abortion access. The short term result was a decision that, according to Justice Clarence Thomas, relied on a “made up” test in order to advance nothing more than “policy preferences.” Thomas predicted that Hellerstedt would “surely mystify lower courts for years to come.”
He was right.
Hellerstedt has spawned a flurry of lawsuits challenging abortion laws, including those requiring parental involvement and informed consent. Pro-aborts now argue that even longstanding regulations should be re-evaluated under the new and elusive balancing test.
The Court’s willingness to delve into the minutiae of abortion clinic operations in Texas invited more of the same in June Medical Services v. Russo, which involves a similar admitting privileges law in Louisiana (more details here and here.) For example, one amicus brief arguing against the law cited the Greyhound bus schedules and fares between two Louisiana cities in an attempt to show that the law poses “undue burden” on those women who may take certain bus routes for their abortions. The brief essentially asks the Court to render a decision that could endure for decades or longer and affect millions of lives based on departure times in an ever-changing bus schedule.
Not only is such highly fact-specific analysis largely unhelpful to lower courts and legislatures who need to apply general legal principles—not minute details—in the area of abortion, but even a decision in the pending case can become obsolete before the Court has issued a ruling. If the Court’s decision is based on an evidentiary snapshot of three abortion doctors being in one metropolitan area and two others in other parts of the state, what happens if another abortionist moves into the state, or two retire, or three pro-abortion doctors finish their medical residencies and are ready to start doing abortions?
Technically, the question in JMS v. Russo is simply whether the Louisiana admitting privileges law passes or fails the vague, unworkable tests the Court created in Casey and Hellerstedt. However, the larger question is whether there are five justices willing to call a halt to the Supreme Court’s pattern of intentionally muddying the true constitutional issues at hand in order to further a decidedly unconstitutional agenda.
*Quotes from “friend of the Court” or amicus briefs filed in June Medical Services v. Russo.