The stakes are high as the Supreme Court considers 2 major abortion cases

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ABA Journal by Erwin Chemerinsky 1/29/2020

Chemerinsky: The stakes are high as the Supreme Court considers 2 major abortion cases

In a term of high-profile cases, none will receive more attention than the abortion cases to be heard on March 4: June Medical Services v. Gee and Gee v. June Medical Services. These are the first abortion cases before the court since Justices Neil M. Gorsuch and Brett M. Kavanaugh have joined the bench. The court’s decisions in these cases may well signal the future of abortion rights in the United States.

The cases involve a Louisiana law that requires a doctor performing an abortion to have admitting privileges at a hospital within 30 miles. The question is whether this law places an undue burden on a woman’s right to an abortion. Also before the court is the issue of “whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a ‘close’ relationship with their patients and a ‘hindrance’ to their patients’ ability to sue on their own behalf.”

Prior precedents

For both of these issues, there are prior U.S. Supreme Court decisions that are seemingly on point. In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court in a 5-3 decision declared unconstitutional a Texas law that required doctors to have admitting privileges at a hospital within 30 miles. In fact, the Louisiana law now before the court was modeled after the Texas statute.

Justice Stephen G. Breyer wrote the opinion for the court, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia M. Sotomayor, and Elena Kagan. The court stressed that in deciding whether a law imposes an undue burden on abortion it is for the judiciary to balance the justifications for the restrictions against their effects on the ability of women to have access to abortions. The court concluded that the Texas law would greatly limit the ability of women in Texas to have access to abortions, without any evidence that the restrictions would protect women’s health.

The court explained that the effect of the Texas law would be to close many of the facilities in the state where abortions are performed.

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