A panel of extraordinarily conservative Republican judges will hear a case on Friday that, if successful, would drain all life from the right to an abortion. In Gee v. June Medical Services, the state of Louisiana argues that abortion restrictions should effectively be immune from judicial scrutiny, just so long as lawmakers are clever about how they draft those laws.
The conservative United States Court of Appeals for the Fifth Circuit, which will hear the case on Friday, is overwhelmingly likely to embrace this legal theory. And while there is some doubt about whether the Supreme Court will endorse this particular attack on Roe v. Wade, the death of Roe is all but certain after the confirmation of Trump Supreme Court appointee Brett Kavanaugh.
Gee involves an interlocking web of abortion regulations that lawyers representing an abortion clinic and several providers describe as “sham health statutes” — that is, the regulations impose licensure requirements and similar restrictions that, at a cursory glance, appear designed to make abortion safer. In reality, however, the lawyers say that the real purpose of these restrictions is to impose “onerous regulations that do little or nothing to promote women’s health and serve only to impede access to abortion care.”
In that respect, the Louisiana restrictions closely resemble the Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. That law required abortion providers to maintain a difficult-to-obtain credential in order to perform abortions in Texas, while also requiring that abortion clinics comply with expensive and unnecessary building regulations.
Louisiana’s primary defense of its scheme is that it should be largely immune from challenge because it involves a lot of different legal provisions.
The general rule in abortion cases is that an abortion restriction is unconstitutional if it imposes an “undue burden” on pregnant individuals’ access to abortion. The Louisiana scheme involves “23 abortion clinic licensing regulations,” and the state argues that courts must evaluate each of these separate regulations “one at a time.”
In essence, Louisiana claims, if a state enacts a complex web of regulations that, when acting together, impose an undue burden on the right to choose, that’s not sufficient grounds to strike down the overall scheme. Instead, each individual piece of this scheme must be evaluated separately. And if no one part of the scheme imposes an undue burden when evaluated in isolation, well that’s just too bad.
This argument isn’t just wrong, it’s embarrassingly wrong. Recall that Whole Woman’s Health involved a complex list of architectural requirements imposed on abortion clinics. Some of the individual provisions were relatively minor, such as a provision requiring water fountains to be “designed so that the water issues at an angle from the vertical,” among other things.
Yet the Supreme Court did not conduct a line-by-line evaluation of each provision of Texas’ scheme, assessing whether it imposes an undue burden on the right to an abortion if, say, the clinics doorways must be at least three feet wide. Or if the clinics’ HVAC systems were required to meet certain specifications. Or if water fountains had to squirt water at an angle.
No, the Supreme Court struck down this entire scheme. And the reason should be obvious. Under the framework Louisiana proposes, a state could make it cost-prohibitive to operate an abortion clinic, just so long as the state did so with a thousand rules that, each taken in isolation, imposed manageable expenses.
So Louisiana’s argument is both inconsistent with existing law and a fairly transparent effort to allow states to ban abortion outright.
Unfortunately for the providers suing the state, Louisiana is also likely to prevail.
The Fifth Circuit panel hearing Gee is Judges Priscilla Owen, Don Willett, and Andrew Oldham. A former justice on the Texas Supreme Court, Owen once wrote an anti-abortion opinion that was so aggressive that her colleague, Justice Alberto Gonzales, denounced it as an “unconscionable act of judicial activism.” And yes, we’re talking about THAT Alberto Gonzales.
Owen is, if anything, the most moderate member of this panel.
In the likely event that this panel signs onto Louisiana’s attack on Roe, there is a decent chance the decision will be temporarily stayed. Last February, Chief Justice John Roberts joined the Supreme Court’s liberal bloc after the Fifth Circuit decided it did not have to follow Whole Woman’s Health in another abortion case.
But Roberts’ vote in that case almost certainly was just an effort to maintain the Supreme Court’s position at the top of the judicial food chain. The Fifth Circuit cannot overrule Whole Woman’s Health (or Roe, for that matter). Only the Supreme Court may overrule a Supreme Court opinion, and Roberts wasn’t about to let the Fifth Circuit forget that.
But that doesn’t mean that Roberts, who has consistently voted against abortion rights, will ultimately vote to save Roe. Barring a change in the Supreme Court’s membership, the right to an abortion is almost certainly doomed.