We start with something I used to do a lot but haven't in some time - but even here there is a twist. So we start with Good News - but it's Good News with an asterisk. Because it might be Good News, it hints at Good News, but won't know for a while if it truly is.On the morning of March 4, the Supreme Court heard oral arguments in the case of June Medical Services v. Russo. This case arises out of Louisiana's attempt use the law to regulate abortion out of existence, following the path blazed by other reactionary, anti-women state governments that, having faced the fact that they can't outright ban abortion, try to put so many practical and regulatory roadblocks in the way that it's virtually impossible to get one.
In this case, it's Louisiana’s law that requires abortion providers to obtain “admitting privileges” at a hospital within 30 miles of their clinic. No admitting privileges, no legal abortion services. The argument is that this provides the benefits of protecting the patient's health and ensuring continuity of care.
Now, these arguments are straight-up lies. First, an abortion is one of the safest medical procedures: During the oral arguments, Justice Elena Kagan noted one clinic in the court record has served around 70,000 women over the course of 23 years and has transferred only four patients to a hospital. In fact, studies have shown that the mortality rate for live childbirth is nearly 15 times that of abortion.
What's more, in the event of an emergency, a patient will be taken to the nearest hospital, the doctor's admitting privileges or no. Which is to the good because getting admitting privileges is not simply a matter of sending a letter or filing a form. Some hospitals will refuse to grant such privileges because they outright oppose abortion. And a good many hospitals require doctors to admit a certain number of patients per year to get and keep admitting privileges, which is difficult for abortion providers precisely because they so rarely need to admit anyone.
As for continuity of care, that is more maintained now by computer file than physical presence; in fact, a growing number of hospitals have "hospitalists," who function as your primary care physician while you are in the hospital; in fact, the doctor that you think of as you own PCP may well not see you at all during the time you're an in-patient.
There is only one reason for these restrictions: to force as many clinics providing abortion services as possible to close to make it as difficult as possible - and from their perspective, hopefully outright impossible - for a woman to exercise her right to a legal health procedure.
But this is where it gets interesting. Just four years ago, in 2016, the Supreme Court ruled in the case of a Texas law almost identical to the Louisiana one. In that case, Whole Woman’s Health v. Hellerstedt, the Court found that the requirement of admitting privileges provides no medical benefit, since abortion patients who experience complications can go to any hospital. The Court also found that the rule would force many clinics to close - which was of course the point - which would impose substantial burdens on women who might be required to travel hundreds of miles to reach an open clinic. Creating burdens plus adding no benefit equaled the law was unconstitutional.So why are we here again? Because the 5th Circuit Court of Appeals, which also upheld the Texas law, essentially ignored the Supreme Court's binding precedent in order to uphold the Louisiana one by claiming not only that the requirement of admitting privileges does provide a medical benefit but that under the Louisiana law, the closing of clinics didn't create as much of a burden as in Texas and getting admitting privileges is easier. In short, instead of hitting you with a big stick five times, Louisiana was only going to do it four times and that makes it okay.
So the Supreme Court is hearing a case almost identical to one it ruled on four years ago. The big difference is that Rat Kavanaugh is on the bench now, leading many abortions rights advocates to fear that the Court will use the opportunity not only to uphold that Louisiana law but to overturn Roe v. Wade - and that the 5th Circuit corruptly upheld the Louisiana law against precedent for precisely that reason.
So where is the Good News is any of that? Well, as I said, it's not Good News, it's potential Good News and it lies in the unusual or at least unexpected line of questioning pursued by Chief Justice John Roberts during oral arguments.
The issue, of course, is that given that it is undeniable that the law would require at least some clinics to close, what is the additional burden to women that the requirement of admitting privileges would create versus the supposed medical benefits to those same women. In 2016's Whole Woman’s Health, the high court had ruled that there was no such medical benefit. And surprisingly, John Roberts, who dissented in Whole Woman’s Health, seemed to understand that this time around.
For example, he asked Louisiana Solicitor General Elizabeth Murrill
Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we’re talking about? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?He later said much the same thing to Deputy Solicitor General Jeff Wall, who was defending the law for the Tweetie-pie administration, asking "Why do you look at each state differently if the benefits of the law - they’re not going to change from state to state.”
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| Chief Justice John Roberts |
Why Roberts, who is widely believed to be favorably disposed not only toward allowing states to restrict abortion but to overturning Roe v. Wade, would take such a tack is uncertain, but there are some possibilities.
One and the one most devoutly to be hoped for but is the least likely, is that he has changed or at least is changing his mind on the matter and now that it is coming down to an actual decision to empowering states to ban abortions, he is hesitating.
Another is that he may be disturbed by the idea of overturning a precedent set in his own court just four years ago, which would seem like a slap in the face in a Roberts-court-legacy sense and he does seem rather sensitive to how the Roberts court will look to history.
Yet another is that he may be just ticked off at the 5th Circuit for ignoring the precedent and has no intention of putting up with that.
And one more, suggested by at least some observers, is that the case Louisiana presented was so sloppy, so full of deceptions and so lacking in actual fact and data, that even if he wanted to uphold the law he couldn't justify to himself doing in on the basis of such a poor presentation.
Whatever the reason, we have been given some hope that even with Rat Kavanaugh on the bench, the loss of access to abortions is not a forgone conclusion. This does not mean that given another case, under other circumstances, that Roberts would not happily side with the reactionaries. But it does mean that despite what many of us had feared, the fight is not yet lost.
And that, well, it isn't Good News, but at least it's a possibility of it. Which is more than we usually get these days.
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