The court agreed Oct. 4 to hear the case, which is cited as June Medical Services LLC v. Gee, after striking down a similar law in Texas three years ago in a 5–3 ruling. In that case, then-Justice Anthony Kennedy, who has since been replaced by Justice Brett Kavanaugh, was part of the majority voting bloc. The respondent is Dr. Rebekah Gee in her official capacity as secretary of the Louisiana Department of Health.
Oral arguments haven’t yet been scheduled but are likely to proceed in the winter or spring, with a decision coming by next summer.
The right to abortion isn’t at issue in the case but some observers speculate that the increasingly conservative Supreme Court may adopt a narrower view of what constitutes a constitutionally impermissible burden on women seeking abortions.
The appeal comes as various Republican-dominated states have enacted new restrictions on abortion.
The case seems certain to heat up the 2020 presidential race in which Democrats—long protective of abortion rights, in some cases up until just before the moment of birth—haven’t yet settled on a candidate to run against President Donald Trump. The president promised on the campaign trail to install justices who would reverse Roe v. Wade (1973), the ruling that created a constitutionally protected right to abortion.
The new case is the first about abortion the Supreme Court will consider after the arrival of its newest members. As such, it’s expected to shed light on the legal philosophies of Justices Neil Gorsuch and Kavanaugh, both Trump appointees. While neither jurist has committed to overturning Roe v. Wade, their conservative records give pro-life activists hope they might at least curb the effects of the legal precedent.
The Center for Reproductive Rights, an international abortion rights activist group with offices in the United States, Colombia, Kenya, Nepal, and Switzerland, previously expressed dismay in a report that Kavanaugh hadn’t spoken in favor of abortion rights.
“While acknowledging that Supreme Court precedent does not allow the government to place an undue burden on abortion access, [then-]Judge Kavanaugh did not affirmatively state that the Constitution protects the right to abortion. He simply noted that ‘all parties to this case recognize that Roe v. Wade and Planned Parenthood v. Casey are precedents we must follow … our job as lower court judges is to apply the precedents and principles articulated in Supreme Court decisions to the new situations.”
The Kavanaugh quotation was from a dissent he wrote in a 2017 case called Garza v. Hargan, when he was a judge of the U.S. Court of Appeals for the District of Columbia Circuit. In that matter, he dissented from the majority opinion which required the government to allow a teenage illegal alien to be freed from immigration detention so she could procure an abortion.
In the case at hand, Louisiana’s Act 620, enacted in 2014, requires a medical doctor to have “active admitting privileges”—meaning the physician is a member of the hospital’s medical staff and has the ability to admit patients and provide diagnostic and surgical services—at a hospital within 30 miles of the facility where an abortion is provided. Those who violate the law can be punished with imprisonment, fines, license revocation, and exposed to civil liability.
By a 5–4 vote, in February, the Supreme Court stayed enforcement of Act 620. Chief Justice John Roberts, part of the conservative bloc on the court, joined with four liberal justices in that vote. Kavanaugh filed a dissent to the order on procedural grounds, arguing that a stay wasn’t needed because regulatory factors in Louisiana meant the changes required by the law wouldn’t take place immediately.
Act 620 was modeled after and is almost identical in wording to HB 2, a Texas law the Supreme Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt, the plaintiff June Medical Services stated in its petition filed with the high court.
The plaintiff argues that the 5th Circuit Court of Appeals decision upholding Act 620 is at odds with the Whole Woman’s Health precedent.
Abortion-rights proponents say the law imposes restrictions on abortion that don’t provide health and safety benefits for abortion-seeking women and would put Louisiana in the position of having just one functioning abortion clinic. Louisiana officials deny that, saying Act 620 might only lead to short delays at one of three abortion-offering clinics in the state.
The Supreme Court begins its new term on Oct. 7.