Abortion and the Politicization of the Supreme Court

| April 9, 2020

Hyper partisanship in America has greatly injured and weakened our nation.  It would have us see issues as a zero sum game where there are winners and losers.  It has caused us to view opportunities with suspicion, and to confront problems with denial.  We are today far more concerned with who was wrong, than with what is right. Perhaps the greatest casualty of this intermural war is the reputation and respect of the United States Supreme Court.  For many, it is the sole face of the American judiciary.  Over the past 30 years, the Court has gone from being the most respected institution in America and the constitutional compass of the nation, to being viewed as a vehicle of political power – where each party seeks to win in court the battles what they may have lost at the ballot box.


Presidential nominees to the Supreme Court used to enjoy near unanimity in senatorial confirmation (Kennedy 97 – 0, Ginsburg 96 – 3).  But the confirmation process changed as the justices were viewed as extensions of political parties (Alito 58-42, Kagan 63-37) and now confirmation is political gladiatorial combat (Gorsuch 54- 45, Kavanaugh 50 – 48).

The constitutional and moral authority of 9 – 0 decisions (as was Brown v. Board of Education) has been lost, as each political party seeks that fifth vote that will secure the victory.


On no issue is this more pronounced than abortion – as was demonstrated on March 4, 2020, when the Supreme Court heard arguments in June Medical Services v. Russo. It was the first abortion case argued to the Court since Justices Neil Gorsuch and Brett Kavanaugh have been confirmed.  There was great interest to hear their views on the constitutional issues, and to see if their confirmation changes the voting balance.

Outside the Supreme Court, both sides held rallies and demonstrations filled with angry rhetoric.   Senator Charles Schumer spoke to the Pro-Choice rally and seemed to address the justices personally:


“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”


Such a comment, if made inside the courtroom, would call for immediate censure and possible contempt of court. Respectfully, it is no more appropriate outside of the courtroom.

Chief Justice John Roberts released a public rebuke, that “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”  To his credit, Senator Schumer later made a partial retraction and clarification of his remarks.


June Medical Services v. Russo concerns a law passed in Louisiana, a state whose legislature has declared opposition to all abortions, going to the extent of enacting “trigger” legislation such that, “if those decisions of the United States Supreme Court [legalizing abortion] are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions shall be enforced.”  LA. STAT. ANN. § 40:1061.8

The Louisiana statute at issue requires doctors who perform abortions to be in good standing on the medical staff at a hospital that is within 30 miles of the clinic where the abortion is performed.  The justification for the law is that the physician performing the abortion must have admitting privileges at a local hospital in case of complications during the procedure.   The challenge is that the law is a thinly veiled effort to outlaw abortion in Louisiana.

Doctors who work at abortion clinics almost never need to admit patients to hospitals.  The evidence was that the June Medical Services clinic has served over 3,000 women a year for 23 years, and in that time of performing 70,000 procedures only 4 women have needed to be transferred to a hospital.  As a result, its doctors do not have admitting privileges at hospitals because they cannot meet the threshold to qualify.  If the Louisiana statute is upheld, every abortion clinic except one in the state will close, which is what the critics of the law say is its primary purpose.


In 2016, the Supreme Court declared a similar statute from Texas unconstitutional, in Whole Woman’s Health v. Hellerstedt, a 5 – 3 decision.  The five justice majority there summarized the constitutional law concerning abortion: that a provision of law is constitutionally invalid if its “purpose or effect” is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  It would seem that this precedent is controlling.

But since then, the empty seat on the Court has been filled by Justice Gorsush, and one of the five (Justice Kennedy) has retired and been replaced by Justice Kavanaugh.  And so June Medical Services drew national attention, to see if and how these changes on the Court would change the direction of the Court.


Often during oral arguments the Justices will debate among themselves through their questions to the attorneys.  Some of the Justices made their positions clear by their questioning, or are already been on record.  There are several ways this decision could go.

Justice Ginsburg’s questions viewed this case as a rerun of the 2016 decision. She considers laws requiring admitting privileges to be “facially invalid” meaning that they are always invalid.  Justice Kagan also seemed to support that position.

Justice Thomas asked no questions, but his views are well known.  He is the most outspoken critic of the Court’s whole jurisprudence concerning abortion, considering questions of “purpose and effect” and “substantial obstacle” impossible judicial standards.  In his view, courts should not be overseeing legislation about medical procedures.

Justice Alito’s questions focused on an issue of “standing,” meaning the right to bring the suit.  This case is brought by the abortion clinics, and not by individual women.  Justice Alito argued through his questions that while the Court’s cases have recognized a woman’s right to have an abortion, there is no corresponding constitutional right for a clinic to perform an abortion and so June Medical Services has no basis on which to bring this case.


But most of the justices seemed to view this case as one of balancing – that the review of state abortion statutes must be done on a case by case basis, and depending on the specific facts and circumstances presented.

Chief Justice Roberts asked “Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state?”

Justice Kavanaugh picked up the same line: “Are you saying that admitting privileges laws are always unconstitutional? … assume all the doctors who currently perform abortions can obtain admitting privileges, could you say that the law still imposes an undue burden, even if there were no effect?”

Justice Sotomayor favors abortion rights, but sees there being some justification for admitting privileges: “being admitted somewhere does further credentialing benefits … But this was you have to be admitted within 30 miles. Some of these doctors were admitted further away, but they still were credentialed by someone, correct?”

Justice Breyer (who wrote the majority in Whole Woman’s Health v. Hellerstedt) asked the question the whole nation asks: “How do you deal with this? I mean, I have read the briefs. I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and … I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”

And what of Justice Gorsuch, hearing his first abortion case and who might be the dividing vote?  He listened to all the arguments, but did not ask any questions at all.

The divided nation will wait for what is likely to be a divided decision, expected in June.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.