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Newly Appointed U.S. Supreme Court judges hear major abortion case that could alter the Constitutional right of privacy

Yesterday, the Supreme Court heard oral arguments in a major abortion case.  This is the first time since Justices Neil Gorsuch and Brett Kavanaugh joined the Bench, creating a strong conservative majority, that abortion will be addressed by the Court.  That case, June Medical Services v. Russo addresses whether the Louisiana law requiring abortion providers to have privileges in a hospital within 30 miles of their clinic is constitutional. The Louisiana law at issue in this case is virtually identical to the Texas law that was struck down by the Court in Whole Women’s Health v. Hellerstedt in 2016.

What could happen is anyone’s guess.  The Court could

  • follow the June Medical Services argument to follow stare decisisand rule, as it did with Whole Women’s Health, the law unconstitutional. Or, it could
  • follow the State of Louisiana argument and distinguishthe law in Louisiana from the law in Texas on factual grounds and determine that the rationale for striking down the Texas law does not exist in Louisiana. This could, thereby, allow them to rule the law in Louisiana to be constitutional while not explicitly overruling Whole Women’s Health. Or, it could
  • break with precedent, decline to follow stare decisis, and decide that its previous ruling was incorrect and uphold the Louisiana law.

While this third possibility may have seemed outlandish to legal scholars in the past, it is not beyond the realm of possibility.  Justice Clarence Thomas has indicated his willingness to abandon stare decisisover the years, with a concurring opinion as recently as last year in Gamble v. United States.

Court watchersindicate that, even after oral argument, it is unclear how the Court will rule. Justices Ruth Bader Ginsburg and Elena Kagan’s questioning centered on whether the law was medically necessary.  Additionally, Justice Ginsburg asked whether requiring a provider to have privileges in a hospital potentially as far as 30 miles away made any sense, given a patient would likely go to the nearest hospital – which may be closer than that – should there be complications during the procedure. Unsurprisingly, according to those in the gallery, Justices Ginsburg and Kagan appeared to be leaning toward following precedent and ruling the Louisiana law unconstitutional.  Also unsurprisingly, Justices Samuel Alito and Kavanaugh’s questioning appeared to be leaning toward distinguishing the laws on factual grounds and finding in favor of the state of Louisiana.

As predicted prior to oral argument, it appears that Chief Justice John Roberts will be the deciding vote in a 5-4 decision. While he asked questions during oral argument regarding whether these laws should be considered on a case-by-case basis, according to Court watchers, it was unclear where he stood by the end of the arguments. A full transcript of the oral argument can be found here.

The Court’s decision is expected in July. Just in time for the Nomination Conventions and the height of the Presidential Campaign season.  I would expect that Chief Justice Roberts will side with the liberal wing of the Court and strike down the law as the integrity of the court is at stake if it appears as though the interpretation of the constitution varies based on politics.

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