Trump's DOJ Supports Overturning Key 2016 Abortion Rights Case at Supreme Court
The U.S. government's friend-of-the-court brief was among more than 35 filed this week in support of a Louisiana regulation that critics contend would pose an "undue burden" on women seeking an abortion.
January 03, 2020 at 01:01 PM
5 minute read
The Trump administration's Justice Department on Thursday said the U.S. Supreme Court should consider narrowing or overturning a divided 2016 abortion-rights ruling that struck down two Texas clinic regulations the justices determined would pose an "undue burden" to women seeking abortions.
The ruling in Whole Woman's Health v. Hellerstedt is central to a Louisiana case the Supreme Court will hear in March concerning a regulation, mirroring the Texas provision, that would require doctors performing abortions to have admitting privileges at a hospital within 30 miles. Abortions rights supporters contend the Whole Woman's Health decision should be controlling and void the Louisiana law. Anti-abortion advocates argue the Louisiana case is distinguishable.
The U.S. government's new friend-of-the-court brief was among more than 35 filed Thursday by conservative-leaning groups backing Louisiana in the case June Medical Services v. Gee. Thirty-nine Republican U.S. Senators said the justices should consider overturning two seminal abortion decisions, Roe v. Wade and Planned Parenthood v. Casey.
The justices heard in December from female lawyers and law students, legal scholars, medical professionals and others who urged the court not to restrict access to reproductive health services. The court last year, with the vote of Chief Justice John Roberts Jr., blocked enforcement of the Louisiana law until the dispute is resolved, and a decision is expected by June.
"DOJ's brief desperately tries to distinguish Louisiana's law from a Texas law that also imposed admitting privileges requirements on abortion providers. They fail," Kristen Clarke, president and executive director of the National Lawyers' Committee for Civil Rights Under Law, said on Twitter. Clarke said "Louisiana's copy-cat law should be rejected now too."
The Justice Department's brief argued the challengers in the Louisiana case—an abortion clinic and two abortion providers—do not have legal "standing" to pursue claims on their own. The Supreme Court is preparing to take up that threshold issue, the resolution of which could carry broader consequences in abortion-related litigation.
Led by U.S. Solicitor General Noel Francisco, the Justice Department's brief, echoing Louisiana's argument, asserted "abortion providers have different and potentially conflicting interests" than the women who seek access to reproductive health services.
"Because the law creates compliance costs without any personal benefits for abortion providers, such providers have every incentive to see the law invalidated. For women, however, the calculus is different," Justice Department lawyers asserted in their new brief. "The law imposes no direct costs on them, and they may see its benefits as quite significant (while viewing any indirect costs as speculative)."
Francisco said the justices should consider scrapping the Whole Woman's Health ruling if the court finds it in conflict with Planned Parenthood v. Casey, the 1992 decision that affirmed Roe v. Wade's central holding and set the "undue burden" standard that is critical to judicial assessments of whether and how regulations interfere with a woman's access to abortion services.
"Stare-decisis [fidelity to precedent] considerations dictate that Hellerstedt should be narrowed or overruled to eliminate any conflict with Casey and the rest of this court's abortion precedents," Francisco wrote on DOJ's brief in the Louisiana case.
A group of constitutional law scholars in December told the justices in a friend-of-the-court brief: "Bedrock principles of stare decisis require continued adherence to this court's abortion rights precedents, which have been consistently applied, are eminently workable and legally and factually sound, and have induced extraordinary reliance," Gibson, Dunn & Crutcher's Orin Snyder wrote in the brief for the scholars.
Francisco has asked the court to let the Justice Department argue in the Louisiana case, and the request is likely to be granted. Then-Solicitor Donald Verrilli Jr., now a partner at Munger, Tolles & Olson, argued in 2016 in support of Whole Woman's Health in the Texas case.
"The effects of the Texas law at issue in this case are much more extreme than those of any abortion law that this court has considered since Casey," Verrilli told the court. "This law closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state."
The court ruled 5-3 in favor of Whole Woman's Health. The majority included then-Justice Anthony Kennedy, who has since retired. The March argument in the Louisiana case will be the first abortion dispute heard by Trump's two appointees to the court, Justices Neil Gorsuch and Brett Kavanaugh.
Read more:
39 Senate Republicans Ask SCOTUS to Reconsider 'Roe' Abortion Rights Ruling
'Compelled to Come Forward': Female Lawyers Urge Court to Back Abortion Rights
Justices Take Louisiana Abortion Case, Marking Major New Term
Women Lawyers' Group Stands Up for Liu After DOJ Nomination Scuttled
The Justices Had 5 Votes to Overturn 'Roe' in 1992. Why That Didn't Happen.
New O'Connor Book Chronicles Her Dementia Onset, Frustration With Alito
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