October 4, 2019

"The Supreme Court on Friday agreed to hear its first abortion case since President Trump’s appointments of two justices."

Adam Liptak reports (at the NYT).
The case [June Medical Services v. Gee] concerns a Louisiana law that its opponents say would leave the state with only one doctor in a single clinic authorized to provide abortions. And it is very likely to yield an unusually telling decision because, in 2016, the court struck down an essentially identical Texas law.

The vote in the 2016 decision [Whole Woman’s Health v. Hellerstedt] was 5 to 3, with Justice Anthony M. Kennedy joining the court’s four-member liberal wing to form a majority.... The federal appeals court in New Orleans upheld the Louisiana law last year notwithstanding the 2016 decision....

There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote [for the majority in 2016]. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40....

“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority [for the Court of Appeals in the new case]. In particular, he wrote, “the admitting-privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”...
The new case will give us a chance to see the effect of replacing Justice Kennedy with Brett Kavanaugh. Kennedy was the deciding vote maintaining abortion rights. It's possible that this case won't do much, because it could be easily decided by saying the answer is determined by Hellerstedt. But perhaps the newly hardened conservative bloc will display its heft and do something conspicuously anti-abortion.

You can speculate about which political party is helped or hurt in the next election by the various possible outcomes.

Key facts: the Supreme Court chose to take on this case and the court below upheld the state's restriction on abortion. The Court had to take the case to keep it in line with Hellerstedt, so taking the case doesn't show enthusiasm for doing something striking.

NOTE: I rewrote the last sentence about a minute after hastily publishing (and noticing I'd said the opposite of what I wanted to say!).

AND: You can read Hellerstedt here. It was 5-3 because Justice Scalia had died and not yet been replaced. It's virtually certain that Scalia would have voted with the dissenters. With Gorsuch replacing Scalia and Kavanaugh replacing Kennedy, the expectation is that now there is a 5-4 vote against abortion rights just waiting to happen. Either the 5 will give — or begin to give — anti-abortion people what they've sought for half a century or they'll disappoint them.

I've got to expect that the conservative 5 will track the Court of Appeals and issue a minimalist decision that finds enough benefit to the law that it's not an undue burden on the right to have an abortion. The right survives, but legislative imposition on it also survives, and everyone is a satisfied enough to keep up the struggle that's been going on for half a century. Both political parties will be given enough footing to continue the usual abortion politics.

But if the Court strikes down the Louisiana law... well, why would that happen? You know why! It will be because John Roberts will see the value of the role Anthony Kennedy played all these years, and he will vote with the liberals. He'll say — I predict — that adherence to precedent is important and this case can't be distinguished from Hellerstedt and he'll leave the larger questions for another day. That would be the most stable outcome, the one with the least effect on 2020 electoral politics.

61 comments:

Dave Begley said...

I sincerely fear for the safety of Justice Kavanaugh and his family; especially his young daughters.

n.n said...

Recovery of improperly sequestered carbon-based human bodies from yet another abortion chamber may give them pause, this time.

traditionalguy said...

Somebody wake up RBG. She will want to keep the slaughter going. And she can order Roberts how to vote.He has became the swing vote that stops reversal of Liberal Holy Scripture since the weaponized Obama Intelligence Agencies dug up dirt on him.

Kevin said...

Imagine how available abortions would be if one didn't need a license from the state to perform them.

That's the real tragedy!

Howard said...

Looking forward to Althouse trolling a new topic

Kevin said...

The Dems need to put a bunch of children on camera to make the emotional argument.

It's a tried-and-true method of getting their base activated.

rhhardin said...

It's so far a way to move the decision back to the states without actually overturning roe v wade. What should happen is political battles in the states to reach the compromise on abortion they want.

tcrosse said...

Democrats find it useful for Roe to appear to be under threat.

Mike Sylwester said...

The US Supreme Court struck down all the abortion laws, because it discovered in the Constitution's emanations and penumbra that citizens have a right to privacy.

Now Nancy Pelosi -- one person -- has declared "an impeachment inquiry" so that House Democrats can look for dirt in grand-jury testimony, tax documents, White House papers and any other documents that normally are protected by privacy rules.

The House Democrats will look for dirt on President Trump and on any of Trump's relatives, friends, associates and supporters.

gspencer said...

"But there was good evidence, he [Breyer as the proxy for statists] added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40"

And that's a bad thing?

Only to the left.

Mike Sylwester said...

Can Justice Ginsburg participate in the hearings via closed-circuit television from her hospice bed?

Karen of Texas said...

I'm curious if the Left's stomping of Kavanaugh will affect his ability to be an impartial justice. If he's only human, he very well might be *swayed* to do "the unthinkable" and force women to have babies or resort to coat hangers.

Perhaps the Court took the case to assuage the Left's fears and will once again, with Kavanaugh the Kraken's deciding vote, prove that half the country's fears are unfounded. Kavanaugh will not lay waste to womanhood's choice; that we are not on the cusp of living the handmaiden's tale.

Might make sliding another justice in under Trump not such a bad thing then. Choice survives even if Trump gets another pick.

It's sad the court has become so politicized.

Karen of Texas said...

Sorry if I'm duplicating posts, Althouse. Blogger is crashing on me every time I publish and with moderation on, I'm not sure if Blogger ate my comment or it's just "in the queue". Apologies again if so.

Birches said...

After Gosnell and now Klopfner, I don't see how a judge can think it's a bad thing to have abortion doctors have admitting privileges. It's obvious now there's hacks in the field. Or more hacky than their normal standard of care, I suppose.

~ Gordon Pasha said...

If abortion is health care, as its proponents proclaim, they why should women by treated by providers that can't pass peer review and obtain clinical privileges? We all know the answer, it's not health care, it's homicide.

Susan said...

The rare part of the Safe, Legal and Rare argument has been a proven lie for some time. Safe is also a lie or they would want more protections for women not fewer.

All they have ever wanted was Legal. Women's health be damned.

Owen said...

I thought we had a national healthcare market? Depending on the nature of the patient's concern: if I have a hangnail, I am not going to drive across three states for treatment, whereas if I have a rare cancer I will go to THE tertiary care place with THE specialists.

So too here. What is it about abortion that makes it (a) a hangnail or (b) a rare cancer? My guess as an insensitive male is, it's not trivial (emotionally as well as physically) and you don't just walk in between your lunch date and picking up your dry cleaning. It's potentially fatal if you get bleeding or infection or other untoward complications. I don't know the rates, but it strikes me as a good fact question, one best answered by local experts, people that we elect to state legislators to assess in their jurisdiction how the background health situation is, what kinds of problems arise, who has competence to handle the routine AND the unanticipated case, what the practical radius of service for a given clinic with given capabilities seems to be. Arkansas is probably not like Manhattan in terms of that.

I guess my point is, why isn't this issue of accreditation/admitting very much a state one? Which means the previous decision doesn't dictate this one.

gilbar said...

~ Gordon Pasha asked...
If abortion is health care, as its proponents proclaim, they why should women by treated by providers that can't pass peer review and obtain clinical privileges?


I'd say, it's because they're trying to get us used to health care by providers that can't pass peer review, etc. That way, when they've replaced Private HMO's with the folks like the Department of Motor Vehicles; folks will be used to it

gahrie said...

That would be the most stable outcome, the one with the least effect on 2020 electoral politics.

Does anybody think (besides Althouse) that the Democrats won't try to scare women into voting Democrat by claiming that the Republicans will take away their "right" to an abortion regardless of how the Court rules in this case?

Sebastian said...

"The right survives, but legislative imposition on it also survives, and everyone is a satisfied enough to keep up the struggle"

Huh? If conservative legislatures are able to impose substantial restrictions, of the sort actual electorates would have supported, the "struggle" can just as easily fade, as the law in fact begins to reflect not imaginary Constitutional rights but the actual preferences of actual electorates as democratically expressed.

"He'll say — I predict — that adherence to precedent is important and this case can't be distinguished from Hellerstedt and he'll leave the larger questions for another day. That would be the most stable outcome"

Huh? Keeping in place the approach that caused the "struggle" to begin with is just about least politically stable thing you can do, guaranteeing that pro-lifers will continue to chafe and proabortionists will continue to make Roe a litmus test.

paminwi said...

John Roberts will vote anyway that tries to show the liberals I am really not a bad guy.
He’s worried about “his court” and how political they look.
Only if a case will end up being 6-3 would he ever vote to make the court liberal versus conservative blocks.
After his ridiculous Obamacare vote I don’t trust his interpretation of the law.

Lance said...

That would be the most stable outcome, the one with the least effect on 2020 electoral politics.

Whoa. Abortion legality is a much bigger issue for the Republican base than it is for the Democrats'. Roberts "betraying" Republicans (again) would create a lot of motivation to support anti-abortion candidates for the Presidency and Senate. Abortion legality is just too polarizing: any decision is going to motivate one or both political camps.

Also related to Roberts' professed desire for judicial legitimacy: voting to overturn the Louisiana law after voting to uphold the Texas law would seriously undercut that legitimacy. He'd have to have an especially persuasive rationale. Much more persuasive than his too-cute taxation argument from NFIB. He can't just fall back on stare decisis.

Ken B said...

That's plausible and cynical speculation there Althouse. I like it.

Abortion has corrupted American politics for nearly my entire life. It should be obvious to small government types that a serious anti abortion law that applies in the early stages requires a level of intrusion and control that exceeds what we saw behind the iron curtain. No self respecting conservative should support such a thing.

tim maguire said...

If the law holds doctors performing abortions to the same standards as other kinds of doctors who do invasive procedures, it should be upheld. The effect on abortion access is temporary as unqualified doctors get their credentials in order.

Talking about it in terms of pro or anti abortion is activist demagoguery.

DarkHelmet said...

FTA: There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote [for the majority in 2016].

Hmmm. Are we including the unborn girl babies in that sweeping statement? Apparently not.

Oh, sorry . . . are we not allowed to mention who it is that actually get killed in an abortion?

gahrie said...

All they have ever wanted was Legal. Women's health be damned.

There is significant and mounting evidence that abortion is bad for women's health. Evidence that is ignored and suppressed.

Owen said...

Excuse me rediscovering an obvious point. The right to bear arms is subject to some degree of regulation. Why isn't abortion similarly subject? Especially when the former right does not imply killing people (as evidenced by millions of law-abiding gun owners) whereas the latter right does not merely imply killing people* but consists of nothing else?

*I guess to be fair I should say "porto-people" becauser they are a few months away, or maybe at least minutes away, from being people.

Wince said...

"We need to eat the babies!"

Owen said...

"Porto-people" should be "proto-people." Stupid spellcheck. Stupid me for not checking spellcheck.

wendybar said...

So THAT'S why they're talking about eating babies!!!

mockturtle said...

Karen of Texas observes: It's sad the court has become so politicized.

It's sad that the butchering of countless unborn children has become so politicized.

Yancey Ward said...

I think it a safe bet that Kavanaugh follows in the footsteps of Kennedy. I don't think Roberts is likely to change his reasoning from the last decision in this matter. So, I predict a 5-4 vote overturning the Appeals Court decision.

Left Bank of the Charles said...

I think Roberts voting to strike down the law would have a big effect on the 2020 election, helping Trump.

n.n said...

what we saw behind the iron curtain

Not "iron curtain". Earlier. Gas chambers. Life deemed unworthy of life. Elective abortion is a human rights issue. It denies due process, a voice, and arms to wholly innocent human lives, for light and casual causes: social progress, social justice, taxation, and democratic leverage. It is cruel and unusual punishment past one month (the presumptive beginning of consciousness). The issue, further, is that selective-child has been normalized by a minority of the population, unlike one-child which was normalized by a minority government. That said, Pro-Choice/abortion, or wicked solution, is four choices too late. The first step is to mitigate its progress.

n.n said...

he will vote with the liberals. He'll say — I predict — that adherence to precedent is important

Love lost. Liberty restricted. Life denied. There are precedents.

Ignorance is Bliss said...

Ken B said...
It should be obvious to small government types that a serious anti abortion law that applies in the early stages requires a level of intrusion and control that exceeds what we saw behind the iron curtain. No self respecting conservative should support such a thing.

You seem to be defining serious to mean enforceable in a way that catches a large percentage of the people who break the law.

But that is not necessary for the law to have a significant effect. We outlaw speeding and shoplifting, knowing that most people who break those laws will never be caught. But just making it illegal changes people's behavior.

Francisco D said...

As someone who is moderately Pro-Choice, I favor a lot of restrictions on abortion, especially third trimester when I would restrict it entirely.

I also favor overturning Roe v. Wadebased on my belief that abortion is not a constitutional right. However, it will redound to the benefit of the Left when states have to make their own abortion laws. I suspect that may be part of the calculus of SCOTUS judges like Roberts and Kavanaugh.

Birches said...

I hope John Roberts would see what was done to Kavanaugh---what still IS being done to Kavanaugh and say YOLO. The left won't respect you after, they'll only demand more.

Bay Area Guy said...

We love Althouse, and (not but), we acknowledge that on two issues (abortion & same-sex marriage), she has strong left of center opinions, and can get a little saucy.

AA: ... John Roberts will see the value of the role Anthony Kennedy played all these years, and he will vote with the liberals. He'll say — I predict — that adherence to precedent is important and this case can't be distinguished from Hellerstedt and he'll leave the larger questions for another day.

This is what you think will happen, but isn't it also what you wish will happen? And, if so, doesn't that kinda, sorta raise the spectre of the "wishful thinking" fallacy from which we all suffer?

The Constitution is silent on abortion. That means, there is a strong, strong, strong presumption that it left the issue of abortion, like most issues, for the people to decide within the framework of the Republic. That usually means voting.

What would be so terrible if Roe v. Wade were overturned and the people of Louisiana voted to limit its practice, while the people of California voted to expand its practice?

Birches said...

The reason a lot of these doctors don't have admitting privileges is that, surprise surprise, most OBs prefer not to do abortions so the ones who will have to come in from out of town. My impression is that most of these guys don't actually want anyone to know what they're doing, but the money is just too good to pass up.

Amadeus 48 said...

If you want to get rid of Roe and Casey, 45-48 states need to pass accommodative abortion laws with reasonable restrictions.

SDaly said...

It only takes 4 judges to grant cert, and I suspect it was the 4 liberal judges who agreed to take this case, thinking it was a no-lose proposition.

First, whatever happens, it motivates the left.

Second, if the 5 "conservative" justices affirm, well, the left has already been delegitimizing Kavanaugh, so they would see the decision as illegitimate and not worth of respect by the people or future courts.

Third, if as many suspect, Roberts votes with the liberals to overturn, that only deepens the wedge between Roberts and the right and pushes him further into the arms of the left.

What is it with Justices named Roberts? Owen J. Roberts was the man behind the "switch in time that saved nine" in response to Roosevelt's court-packing plan.

gilbar said...

Kevin said...
The Dems need to put a bunch of children on camera to make the emotional argument.


New potential Democrat TV commercial:
"Hi, I'm Betty; a 14 year old massage therapist. Thanx to people like Ruth Bader Ginsburg, i don't have to worry about one of the Major job hazards of massage therapy: Unwanted Pregnancy"

"But, The EVIL Republicans want to Take Away my ability to do my job. Many of my clients, many of them Men YOU Voted For, prefer barebacking me. Without the ability to practice regular reproductive health choices; you'd be calling me a mommy now...."

"And That's no term to be using for a 14 year old massage therapist"

CALL YOUR PLANNED PARENTHOOD OFFICE NOW! Remember! It's baby killing, it's your own Choice

n.n said...

What the Court should do, is establish a rule of safety for the mothers, and save the child from empathetic distress and sequestration past the first month, in the second, third, and even fourth trimester. Establishment of Pro-Choice may have originated with selective-child, for social progress, and social justice, but its doctrine has, predictably, progressed and liberalized in what is ostensibly an unprecedented case of noble cause corruption. Let's take a baby step to Separation of Chamber and State, recover of scientific integrity, recognition of women's (and men's) faculty and moral character, and restoration of human and civil rights.

n.n said...

Pro-Choice/selective-child, or wicked solution, is four choices and one month too late.

rehajm said...

Can Justice Ginsburg participate in the hearings via closed-circuit television from her hospice bed?

Yes. From there and a little beyond.

narayanan said...

Susan said...

///the Safe, Legal and Rare argument///
________________
Your mistake is to think the abortion seeking woman is the concern in this premise.

Makes complete sense if concern is for provider is to be safe from prosecution because legal and rarely discovered when mistakes happen (easily covered up)

ConradBibby said...

I'm having trouble seeing how the statute burdens a woman's right to have an abortion. It doesn't limit her decision to abort, which is the main thing. And even if it has the practical effect of reducing the number of doctors available locally to perform an abortion, that's only because (I think) most doctors/hospitals don't want to be involved in performing elective abortions, so the supply is quite limited. In effect, I think what the law's opponents are saying is, in order to protect a woman's right to have an abortion, the state may be required to lower the standard of medical care and competency required to perform an abortion to a level below that which applies to other surgical procedures, so as to ensure a sufficient availability of doctors to perform them.

Now do guns: Would the same kind of reasoning apply if a given locality did not have enough federally licensed gun dealers to ensure folks a convenient way to exercise their 2d Amendment rights?

DavidUW said...

I’m at a loss to understand why the local regulation of business is a federal matter. Is it a problem the number of clinics are reduced due to a state regulation? If it is, why isn’t it a federal problem that all states have varying degrees of regulations that reduce the numbers of businesses. Is abortion a privileged business? Why?

Michael K said...

It would be revolutionary to go to a state option decision in which states could choose, by legislation or initiatives , to allow or ban abortion or to establish rules like this.

Because Roberts is such a wuss, I expect another disappointment.

Ken B said...

Good to know we abolished speeding.

What your comparison to shoplifting misses is of course how to detect it. It doesn’t take an intrusive state that puts the Stasi to shame to watch retail entrances. It takes more to tell if Ms Smith, who isn’t pregnant today, was pregnant yesterday. Which you need to find out if as I said you are serious about stopping abortions.

narayanan said...

if we still have rules for no liquor stores, massage parlors etc within ### feet of "church, school" etc?
then how about allabortionallthetime right next to FEDERAL court buildings

wildswan said...

the requirement caused the number of abortion clinics in Texas to drop to 20 from 40"

Meaning that many abortion doctors are so incompetent that they cannot obtain privileges at a hospital. How can incompetent doctors be good for women's health? There are at least two reasons why they can't get privileges. One is that the doctors have lost their licenses in a different state. A doctor does not have to notify anyone that he has lost his licence so many abortionists get a stack of licenses from different states before their incompetence surfaces and then move about harming women, losing their license, moving to a new state, rinse and repeat. But trying to get privileges at a hospital can unmask instances of past loss of licence which can lead in turn to loss of licence in the new state. Another possibility is that women who had been to the abortion clinic might show up several weeks later at the hospital with severe infections or other damage caused by the abortion. Abortion providers - concerned as they are with women's health - have insisted that these cases be collected as statistics separate from abortion statistics. Hence it might seem that an abortion clinic has a good record whereas the hospital knows the truth and will not give its doctors admitting privileges.

And I know of no reason associated with concern for women why the Supreme Court or the NYT would try to assist these butchers and their enablers to continue their career. Why not expose them? Why can only half the abortion "clinics" in a state get their well-trained, competent doctors, admitting privileges?

mockturtle said...

ConradBibby suggests: Now do guns: Would the same kind of reasoning apply if a given locality did not have enough federally licensed gun dealers to ensure folks a convenient way to exercise their 2d Amendment rights?

The big disparity here is that you can't legally buy a gun across state lines but you can have an abortion performed in another state. Those without an FFL dealer in their state would not be able to legally purchase a firearm.

Ignorance is Bliss said...

Ken B said...

Good to know we abolished speeding.

We didn't. We did greatly reduce the top-end of the speeding.

And the fact that we could crack down on all shoplifting without the level of intrusion needed to similarly crack down on abortion entirely misses the point. We don't have to have someone following each shopper around the store: we get much of the benefit just by making it illegal.
Likewise, if you make abortion illegal, some number of people would be more careful about birth control, and some number of people who were on the fence about whether to abort would choose not to.

Throw in prosecution of providers in botched cases where the woman is injured, and maybe some sting operations to catch providers, and you could take a chunk out of the numbers, without the slightest invasion of privacy.

Which, of course, shows the lie behind the entire "right to privacy" justification for abortion being a constitutional right.

gahrie said...

Now do guns: Would the same kind of reasoning apply if a given locality did not have enough federally licensed gun dealers to ensure folks a convenient way to exercise their 2d Amendment rights?

Bad analogy. There actually is a right to own a gun, and the "right" to an abortion was created from abstractions from a shadow by activist judges. When I buy a gun I don't kill anyone in the process.

gahrie said...

Is abortion a privileged business?

yes.

Why?

No woman must be made to feel bad about, or responsible for, anything, ever.

readering said...

Interesting bit from NY Times S CT reporter: court just issued yearly guidelines to counsel in which it advised that this term counsel will generally be left uninterrupted for first 2 minutes of argument. Be interested to know whose idea.

n.n said...

No woman must be made to feel bad about, or responsible for, anything, ever.

And her friends with "benefits" that want to keep her affordable and available, the government that wants to keep her taxable, the abortion industry that wants to keep her "choice profitable, and the established quasi-religious philosophy, Pro-Choice, that is selective, opportunistic, not limited to selective-child.

mockturtle said...

Althouse knows that there is no way she can win the abortion debate.

Nichevo said...

Amadeus 48 said...
If you want to get rid of Roe and Casey, 45-48 states need to pass accommodative abortion laws with reasonable restrictions.



Or, you will be sad.