On June 29, 2020, the U.S. Supreme Court issued its 138 page opinion in June Medical Services v. Russo et. al. At issue was the constitutionality of Louisiana Act 620 which required abortion providers to hold active admitting privileges at a hospital (within 30 miles of their practice). For lawyers, this opinion is a great read. For regular individuals interested in public health issues important to them, the opinion is tedious. There is far more discussion about complex legal issues, such as standing and standards of review, than there is about abortion generally. I will avoid the complex and try to provide my clients a simple summary of the various opinions.
The majority opinion is a plurality opinion with Justices Breyer, Ginsburg, Sotomayor, and Kagan agreeing with the winning result and Chief Judge Roberts writing separately to agree with the result. The majority opinion goes on for 40 pages to eventually conclude that a decision issued just three years ago controls the result. The prior case was Whole Woman's Health v. Hellerstedt, 579 U.S. ____, (2016), and it addressed a nearly identical law out of Texas. The Texas law was almost word for word identical to the Louisiana law. Further, the plaintiff's in Whole Woman's Health were abortion providers, just like the plaintiffs in June Medical Services. However, in Hellerstedt, the abortion providers claimed the Texas law injured them personally, which then placed undue burdens on women's right to a abortion (under Roe). In June Medical Services, for a variety of reasons, the abortion providers tried to argue they had the ability to bring the suit based entirely on the injury to women generally. In essence, they wanted the Court to consider them patients seeking an abortion, as opposed to doctors that actually performed the abortions.
This difference in the injury claimed is the explanation why this case needed an additional opinion when there was an opinion three years earlier. Can abortion providers file suits against state laws they do not like with no injury other than an injury to others (not the plaintiffs). In the legal world, we call this issue standing. How important is it? Dred Scott lost his suit for freedom from slavery because he did not have standing to sue. How in the world could an African American slave not have standing to sue? Well, the US supreme Court actually held that people of African ancestry were not US Citizens and thus lacked standing.
Justices Breyer Ginsburg, Sotomayor and Kagan agreed that the abortion providers could have third-party standing, or, stated another way, they could stand in the shoes of women generally. To be safe, they also argued that the State of Louisiana waived the issue of standing in the lower court. Chief Justice Roberts barely touched the issue of standing, primarily because he argued "I am stuck with the prior decision". (explained later). Justice Clarence Thomas unleashed on the majority opinion when it came to standing. He argued, there is no case law to support the abortion providers having standing, there are no facts to support their standing argument, and the State can't waive an issue that is historically a constitutional issue (standing).
Justice Alito found the standing issue to be so important that he wanted to send the case back to the trial court to start over and add women who are actually injured by the law. Justice Gorsuch wrote an opinion to complain that rules must be followed, and too many rules were being ignored in this case. Perhaps surprising to some, Justice Gorsuch said Roe v. Wade was not truly at issue in June Medical Services. Justice Kavanaugh wrote a short dissenting opinion merely to note 1) 5 Justices actually agreed that the Woman's Health cost-benefits standard is wrong and should be overruled, and 2) he wanted the case sent back to the trial court because he found the factual records to be incomplete.
The next central issue in the case was the standard of review for the trial court's findings. For the non-lawyers, the standard or review determines whether the court of appeals has to accept the trial court's factual findings or whether the appellate court has some discretion. Given the fact that the trial court in June Medical held a six day trial, and had rather extensive factual findings suggesting a burden on a woman's right to abortion, this was an important issue. The majority opinion spent multiple pages on these facts, and determined that those facts must be accepted unless the facts are clearly erroneous. This is a high standard. As you might guess, the dissenters found the factual findings to be clearly erroneous and/or incomplete.
As a final issue, I want to address Chief Justice Robert's concurring opinion. He actually dissented in Whole Women's Health, so I expected him to dissent in this case. Depending on your point of view what Chief Justice Robert's did was either honorable or deplorable. I will leave those opinions to others. Chief Justice Robert's essentially said, "I am a member of this Court and that is more important than my role as an individual. I must follow the established law, even if I disagree." (This is not a quote. I am summarizing what I believe the Chief Justice was trying to say). He filed his own opinion because he did not like certain aspects of the majority opinion, in particular the cost-benefit analysis. However, he agreed that the Louisiana Law had to be found unconstitutional based on the doctrine of stare decisis and the Whole Women's Health decision just three years earlier.
In the end, the Louisiana law was found unconstitutional by five Justices and those in favor of abortion have another victory.