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The “rule of law” is no longer a concept that is practiced by the Republican Party. We see it from the executive branch, where the Republican President of the United States confesses to abusing his power on television and dares anybody to stop him. We see it in the legislature, where Republican congressmen and senators do nothing to arrest the president’s assault on the rule of law. And we are now seeing it at the Supreme Court, where the Republican justices are now poised to overturn precedent simply because Trump, McConnell, and the Republicans successfully installed an alleged attempted rapist on the Supreme Court.
The Supreme Court today agreed to hear June Medical Services v. Gee. The case is a challenge to a Louisiana law requiring doctors who offer abortion services to have admitting privileges in nearby hospitals.
If that all sounds familiar to you, it should. The Supreme Court decided exactly this issue in 2016, in the case of Whole Woman’s Health v. Hellerstedt. There, Stephen Breyer, writing for a 5-3 majority, ruled that a Texas law — a law which required doctors who offer abortion services have admitting privileges at nearby hospitals — was an unconstitutional “undue burden” on a woman’s right to choose. Breyer lodged Whole Woman’s Health squarely within the test provided by the Court in Planned Parenthood v. Casey. Whole Woman’s Health is precedent applying settled precedent about abortion.
And the Republicans don’t care.
The first court to not care was the Fifth Circuit Court of Appeals. With Gee, the Fifth Circuit looked at essentially the same kind of TRAP law in Louisiana that was at issue in Texas with Whole Woman’s Health, but found factual differences between the application of the Louisiana law justified ignoring the Supreme Court precedent established in Whole Woman’s Health. It’s the “I’m not getting on the plane, I’m getting in the plane” of circuit court opinions.
Gee should be summarily reversed. As Jonathan B. Miller — Chief of the Public Protection & Advocacy Bureau in the Office of the Massachusetts Attorney General — explains on SCOTUSblog, summary reversal is appropriate for a case that presents such clear error:
Summary reversal also is appropriate because the 5th Circuit went too far with its extensive critique of the physicians’ good-faith efforts to obtain admitting privileges. As an initial observation, a difference in scale seems to have allowed the 5th Circuit to engage in a tougher review than the Supreme Court’s inquiry in WWH. The Supreme Court had before it evidence that Texas’ admitting-privileges requirement reduced the number of abortion clinics in the state from 40 to less than 10. The impact spoke for itself, and any exercise seeking to call into question the basis for 30 clinic closures would have bordered on the absurd. Here, instead, the 5th Circuit had much more limited ground to cover and far fewer causal links to sever. As the decision explained, “[t]he paucity of abortion facilities and abortion providers in Louisiana allows for a more nuanced analysis of the causal connection between Act 620 and its burden on women[.]” Laws that are so similar, however, should not be analyzed so differently.
The intense second-guessing of the district court’s factual findings (which are supposed to get deference) was clear error. The district court fairly evaluated the efforts of doctors to come into compliance with a law that has never been in effect, that most of the physicians did not believe they could comply with as a practical matter, and that they knew was designed to have the same effect as H.B. 2 in Texas (because Act 620 was passed a year later). By contrast, the 5th Circuit’s review of the record impliedly required these physicians to prove a negative – that they cannot get credentialed at any qualifying hospital. In so doing, the 5th Circuit at times determined that particular physicians are not burdened or overly burdened by Act 620. Of course, the constitutional question is whether women experience an undue burden.
That’s right, the Fifth Circuit asked if doctors would be unduly burdened by the admitting requirements, AS OPPOSED TO WOMEN SEEKING ABORTIONS.
The only thing that has changed in the legal firmament between Whole Woman’s Health and Gee is that Brett Kavanaugh has replaced Anthony Kennedy on the Supreme Court. That is all. There is no other factor.
But that might be all that is needed to squelch women’s access to abortion providers. Instead of kicking this case and admonishing the Fifth Circuit for its gross refusal to apply Court precedent, the Republican Court will entertain the Fifth Circuit’s bad faith arguments. Three justices are already on record as being in dissent from the opinion in Whole Woman’s Health, and two more have been appointed by a president who vowed to only appoint judges who are against abortion. Will John Roberts change his legal opinion in Whole Woman’s Health to beat back this direct challenge to Supreme Court precedent that Gee represents? Or will he stick to his guns and let the addition of Gorsuch and Kavanaugh change the law just a few years after it was settled, because Republicans have the raw political power to do so?
If the Court chooses the latter, precedent means nothing. And that means the law means nothing, beyond who has the raw political power to bend it to their will. This case is an affront to the rule of law in this country. But, at this point, why should the Republican-controlled Supreme Court be different than all the other Republican-controlled institutions in this country?
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.