On Wednesday, Chief Justice John Roberts reportedly hinted that unlike four years ago, when he sided with the conservatives on the Supreme Court on a major abortion case, he might abandon them and side with the liberal justices on the Court in a similar abortion case.
In 2013, the Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. One such provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed, and another provision required that all abortion clinics comply with standards for ambulatory surgical centers.
The petitioners are a group of abortion providers who sued the State of Texas seeking to invalidate those provisions in H.B. 2 as they relate to facilities in McAllen and El Paso. The petitioners argued that H.B. 2 denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action.
The case ultimately reached the Supreme Court, which only had eight members, as Justice Antonin Scalia had died; the four liberal justices were joined by Justice Anthony Kennedy and opposed by Justices Thomas, Alito, and Roberts. The majority held for the abortion providers; Justice Thomas wrote in his dissent that the case should never have made it to the Supreme Court because the Court normally did not permit third parties to sue in order to vindicate the rights of others.
The makeup of the Court has changed with the addition of Justice Brett Kavanaugh and Justice Neil Gorsuch; CBS News quavered, “The Supreme Court will hear oral arguments Wednesday for June Medical Services v. Russo, a case that challenges a 2014 Louisiana law. The result could impact abortion access across the country, and advocates fear the relatively recent additions of two conservative justices make it more likely that the court upholds the law.”
The Constitutional Accountability Center explained June Medical Services L.L.C. v. Russo this way: “In June Medical Services L.L.C. v. Russo, the Supreme Court is considering whether the Fifth Circuit’s decision to uphold Louisiana’s Act 620, a law which requires physicians who perform abortions to have admitting privileges at a nearby hospital, is in conflict with the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.”
According to CNBC, regarding June Medical Services v. Russo, Roberts “suggested that he saw that decision (Whole Women’s Health) as binding, which found that the Texas law had no medical benefits and placed an unconstitutional burden on women seeking abortion. Roberts twice said that the medical benefits for the Louisiana law would likely be the same.”
Democrat Louisiana state representative Katrina Jackson, who introduced Louisiana’s Act 620, told CBS News:
When a physician performs a surgery outside of a procedure outside of a hospital, a physician with admitting privileges has the ability to call ahead of time if there’s a complication and say, “I’m sending patient A, this is what happened, I believe this is what’s needed; she’s on her way in an ambulance to you, and she’s going to need emergency care and she’s going to need to be admitted. That’s when you have admitting privileges.
When you don’t, you have no connection with a hospital within a 30-mile radius, you have absolutely no connection with the hospital that your patient is being transported by emergency services to, so the doctors at the ER have to figure it out; they have to take it from the EMT instead of the physician that performed the procedure. And so I just thought it was a common sense piece of legislation; everyone would understand it regardless of what type of care you were providing to your patient you would have wanted a continuity of care.