Supreme Court abortion case tests Trump’s promise to overturn Roe v. Wade

Brett Kavanaugh, Associate Justice of the Supreme Court of the United States, smiles as President Donald Trump, unpictured, speaks during a swearing-in ceremony in the East Room of the White House in Washington, DC, on Monday October 8, 2018.

Andre Harrer | Bloomberg | Getty Images

President Donald Trump promised during his 2016 election campaign that he would appoint Supreme Court justices who would “automatically” overturn Roe v. Wade, the historic decision on abortion.

Four years later, Trump is seeking re-election, and his two appointees, Justices Neil Gorsuch and Brett Kavanaugh, will determine whether that promise is kept.

On Wednesday, Gorsuch and Kavanaugh will hear arguments in the first major abortion case since either was confirmed to the bench. A decision is expected by the end of June, a month before Democrats gather in Wisconsin to formally select their presidential nominee.

The Conservatives are gearing up for a big victory in the election year. While the court is unlikely to go so far as to overthrow Roe, those on the left and right expect the judges to cut his edges. The justices could very well overturn a more recent abortion ruling, dating from 2016, made by the liberal wing of the court before Trump secured a conservative majority.

“So many people really took credit for voting for President Trump because of the Supreme Court,” said Katherine Beck Johnson, a member of the Family Research Council, an anti-abortion group. “I think it could really allow us to see the benefits.”

The case argued Wednesday, known as June Medical Services v. Russo, No. 18-1323, is one of the most high-profile of a Supreme Court term. The judges are also weighing the legality of the Obama-era DACA immigration program and whether LGBT workers are protected by federal anti-discrimination law.

In late March, the court will hear arguments about whether Trump can shield his personal and business financial records from state and congressional investigators.

Amid the high-stakes litigation, Trump has stepped up his criticism of the court’s liberals, accusing Justices Ruth Bader Ginsburg and Sonia Sotomayor of bias last week and demanding they recuse themselves from cases with “everything to do with with Trump.”

The case concerns the law “of admission of privileges”

In the abortion case, judges will consider a Louisiana law that was passed in 2014. The law, which is not currently in effect, would require abortion providers to obtain admission privileges in a hospital located within 30 miles of their clinic.

Intake privileges are “almost impossible” for abortion providers to obtain, according to a group of health care managers and consultants who have filed a friend of the court brief. A federal district court that struck down the law found it would limit Louisiana, where 10,000 abortions are performed each year, to a single provider at a single clinic.

The law was challenged by two unnamed doctors and a Louisiana abortion clinic known as Hope Medical Group, who are represented in court by the Center for Reproductive Rights. The state of Louisiana is defending the measure.

After the law was blocked by a district court, the 5th United States Circuit Court of Appeals reversed the decision, which would have allowed it to be enforced. A year ago, the Supreme Court stepped in to temporarily block the law from going into effect until it could issue a final ruling.

Judges ruled as recently as 2016 that a nearly identical Texas admissions privileges law was unconstitutional in Whole Woman’s Health v. Hellerstedt. Since then, Gorsuch and Kavanaugh have joined the bench. The court’s decision to take up a similar case so soon suggests the judges may be willing to overturn their recent precedent.

Travis Tu, senior counsel for the Center for Reproductive Rights, argued in legal briefs filed with the highest court that the Admitting Privileges Act provides no medical benefits while presenting a heavy burden for women seeking an abortion.

Hope Medical has had only four patients who needed to be transferred to a hospital in 23 years, and all received proper care, whether or not the abortion provider had admitting privileges, Tu wrote in a memoir. .

But Louisiana has argued that the law plays an important role in accrediting abortion providers and ensuring the safety of women who undergo the procedure.

“Every American, regardless of their position on abortion, has a stake in protecting women in abortion centers,” said Angie Thomas, associate director of Louisiana Right for Life.

A significant part of Louisiana’s argument has targeted so-called third party, or the right of abortion clinics to sue on behalf of the women they serve. Louisiana argues that clinics should not be able to represent women in lawsuits seeking regulations the state deems necessary for their safety.

Some of the most significant victories for abortion rights groups have come in lawsuits brought by abortion providers, including the landmark 1992 case known as Planned Parenthood v. Casey who reaffirmed the central position of Roe v. Wade.

Judges could hand Louisiana a victory if they find that the law does not present a substantial barrier for women seeking abortions or if they rule that clinics should not have been able to pursue their case in justice in the first place. Either decision would be a substantial victory for anti-abortion activists.

Where are Gorsuch and Kavanaugh?

Gorsuch and Kavanaugh have never ruled the Supreme Court on a major abortion case, so their exact opinions remain unclear. But there are clues as to how they might rule.

For one thing, both men were backed by anti-abortion groups like the Susan B. Anthony List when they were named, and they’re generally seen as favoring conservative causes. Kavanaugh’s only abortion ruling as an appeals court judge, to delay a proceeding sought by an immigrant minor, was cited by abortion rights groups during his confirmation process as a cause for concern.

The pair also voted last year to allow Louisiana’s admissions law to operate while the Supreme Court considers its constitutionality, though they were in the minority at the time because Chief Justice John Roberts sided with the liberals of the court.

However, only Kavanaugh explained his vote to allow the Louisiana law to go into effect. He said he wanted to see what effect the measure would have on state abortion clinics before deciding whether it posed a substantial impediment.

Kavanaugh also parted ways with Gorsuch over the 2018 court’s decision not to review two lower court rulings that temporarily barred Louisiana and Kansas from cutting Medicaid funding to Planned Parenthood.

While Gorsuch voted with two of the court’s conservatives to consider the cases, Kavanaugh sided with Roberts and the court’s liberals in rejecting them, causing some consternation among the conservatives.

Kavanaugh may shed more light on his thoughts on abortion on Wednesday, though experts and activists aren’t holding their breath.

Adam Feldman, a forensic expert who writes the Empirical SCOTUS blog, noted in an email that Kavanaugh doesn’t always ask a lot of questions, which makes assessing his vote “somewhat complicated.”

“That’s probably increased since he’s only in his first full term as a judge and so he’s still getting his feet wet,” Feldman said.

But Feldman noted Kavanaugh was among two 5-4 majorities to overturn his own precedents last season, suggesting he may not be “particularly deferential” to the 2016 Whole Woman’s Health precedent.

Chris Kang, chief counsel for Demand Justice, a liberal court watchdog group, said he expects oral arguments to be mostly “theatre”.

“I think from his perspective, he’s looking for the analysis that comes out of the articles saying ‘Judge Kavanaugh is undecided,'” Kang said. “What we know is not true.”

Helen D. Jessen