Brett Kavanaugh, associate justice of the U.S. Supreme Court, smiles as President Donald Trump, not pictured, speaks during a ceremonial swearing-in event in the East Room of the White House in Washington, D.C., on Monday, Oct. 8, 2018.
Andrew Harrer | Bloomberg | Getty Images
President Donald Trump pledged during his 2016 election campaign that he would appoint justices to the Supreme Court who would “automatically” overturn Roe v. Wade, the landmark abortion decision.
Four years later, Trump is seeking reelection, and his two appointees, Justices Neil Gorsuch and Brett Kavanaugh, will determine whether that promise is kept.
On Wednesday, Gorsuch and Kavanaugh will hear arguments in the first major abortion case since either was confirmed to the bench. A decision is expected by the end of June, a month before Democrats are scheduled to convene in Wisconsin to formally select their presidential nominee.
Conservatives are gearing up for a big election-year win. While it’s unlikely that the court will go so far as to overturn Roe, those on the left and right expect the justices to trim its edges. The justices could very well overturn a more recent abortion decision, from 2016, decided by the court’s liberal wing before Trump secured a conservative majority.
“So many people really credited voting for President Trump because of the Supreme Court,” said Katherine Beck Johnson, a fellow at the Family Research Council, an anti-abortion group. “I think this really could allow us to see the benefits of that.”
The case being argued Wednesday, known as June Medical Services v. Russo, No. 18-1323, is one of the highest profile in a jam-packed Supreme Court term. The justices are also weighing the legality of the Obama-era DACA immigration program and whether LGBT workers are protected by federal anti-discrimination law.
At the end of March, the court will hear arguments over whether Trump may shield his personal and business financial records from state and congressional investigators.
Amid the high-stakes litigation, Trump has ramped up his critiques of the court’s liberals, accusing Justices Ruth Bader Ginsburg and Sonia Sotomayor of bias last week and demanding that they recuse themselves from cases with “anything having to do with Trump.”
Case concerns ‘admitting privileges’ law
In the abortion case, the justices will consider a Louisiana law that was passed in 2014. The law, which is not currently in effect, would require abortion providers to obtain admitting privileges at a hospital within 30 miles of their clinic.
Admitting privileges are “nearly impossible” for abortion providers to obtain, according to a group of health-care managers and consultants who filed a friend-of-the-court brief. A federal district court that struck down the law found that it would limit Louisiana, where 10,000 abortions are performed yearly, to just one provider at a single clinic.
The law was challenged by two anonymous physicians and a Louisiana abortion clinic known as Hope Medical Group, who are being represented in court by the Center for Reproductive Rights. The state of Louisiana is defending the measure.
After the law was blocked by a district court, the 5th U.S. Circuit Court of Appeals reversed the decision, which would have allowed it to be enforced. A year ago, the Supreme Court stepped in to temporarily halt the law from going into effect until it could issue a final decision.
The justices ruled as recently as 2016 that a nearly identical admitting privileges law in Texas was unconstitutional in the case Whole Woman’s Health v. Hellerstedt. Since then though, Gorsuch and Kavanaugh have joined the bench. The court’s decision to take up such a similar case so soon suggests that the justices may be willing to overturn their recent precedent.
Travis Tu, lead attorney for the Center for Reproductive Rights, has argued in legal briefs filed with the top court that the admitting-privileges law fails to provide any medical benefits while presenting a serious burden on women seeking abortions.
Hope Medical has had only four patients who required transfer to a hospital in 23 years, and all of them received appropriate care regardless of whether the abortion provider had admitting privileges, Tu wrote in one brief.
But Louisiana has argued that the law serves an important role in credentialing abortion providers and ensuring the safety of women who undergo the procedure.
“Every American, regardless of your stance on abortion, has an interest in protecting women at abortion facilities,” said Angie Thomas, associate director of Louisiana Right for Life.
A substantial portion of Louisiana’s argument has targeted what’s known as third-party standing, or the right of abortion clinics to sue on behalf of the women they serve. Louisiana argues that the clinics should not be able to represent women in lawsuits targeting regulations that the state believes are necessary for their safety.
Some of the most important victories for abortion rights groups have come in lawsuits brought by abortion providers, including the landmark 1992 case known as Planned Parenthood v. Casey that reaffirmed Roe v. Wade’s central holding.
The justices could deliver a win to Louisiana if they find that the law does not present a substantial obstacle to women seeking abortions or if they rule that the clinics should not have been able to pursue their lawsuit in the first place. Either ruling would be a substantial victory for anti-abortion activists.
Where do Gorsuch and Kavanaugh stand?
Gorsuch and Kavanaugh have never ruled from the Supreme Court on a major abortion case, so their exact views remain cloudy. But there are clues to how they might rule.
For one, both men were supported by anti-abortion groups like the Susan B. Anthony List when they were nominated, and they are generally seen as favoring conservative causes. Kavanaugh’s sole abortion ruling as an appeals court judge, to delay a procedure sought by an immigrant minor, was cited by abortion-rights groups during his confirmation process as a cause for alarm.
Both men also voted last year to allow the Louisiana admitting law to be enforced while the Supreme Court considered its constitutionality, though they were in the minority at the time because Chief Justice John Roberts sided with the court’s liberals.
Only Kavanaugh explained his vote to allow the Louisiana law to go into effect, though. He said he wanted to see the effect that the measure would have on the state’s abortion clinics before deciding whether it posed a substantial obstacle.
Kavanaugh also parted ways with Gorsuch over the court’s 2018 decision not to review two lower court rulings that temporarily banned Louisiana and Kansas from cutting Planned Parenthood’s Medicaid funding.
While Gorsuch voted with two of the court’s conservatives to review the cases, Kavanaugh sided with Roberts and the court’s liberals to reject them, causing some consternation among conservatives.
It is possible that Kavanaugh will shed more light on his abortion thinking on Wednesday, although experts and activists are not holding their breath.
Adam Feldman, a court expert who writes the Empirical SCOTUS blog, noted in an email that Kavanaugh does not always ask many questions, which makes assessing his vote “somewhat complicated.”
“This is probably augmented since he is only now in his first full term as a justice and so he is still getting his feet wet,” Feldman said.
But Feldman noted that Kavanaugh was part of the two 5-4 majorities that overturned its own precedents last term, suggesting he may not be “particularly deferential” to the 2016 Whole Woman’s Health precedent.
Chris Kang, chief counsel at Demand Justice, a liberal court watchdog group, said he expects the oral arguments to be primarily “theater.”
“I think from his perspective he is looking for the analysis coming out of the articles saying, ‘Justice Kavanaugh undecided,'” Kang said. “Which we know is not true.”