Republican politicians line up to ask the Supreme Court to overturn Roe v. Wade

The annual anti-abortion rights “forced birther” March for Life Rally in Washington, D.C. is January 24, 2020.

In advance of this annual ritual calling on the U.S. Supreme Court to overturn its decision in Roe v. Wade (1973), Amy Howe at SCOTUSblog reports, Federal government’s brief in abortion case supports Louisiana’s position, raises possibility of overruling Whole Woman’s Health:

On March 4, the Supreme Court will hear oral argument in one of the biggest cases of the new year: June Medical Services LLC v. Gee, a challenge to the constitutionality of a Louisiana law that requires doctors who perform abortions to have the right to admit patients at a nearby hospital. [i.e., Targeted Regulation of Abortion Providers (TRAP) Laws]. Four years ago, the justices struck down a similar law from Texas, by a vote of 5-3. But the court has changed since then: Justice Anthony Kennedy, who joined his more liberal colleagues in voting to invalidate the Texas law, retired in 2018 and was replaced by Justice Brett Kavanaugh, while Justice Neil Gorsuch filled the empty seat created by the death of Justice Antonin Scalia. Last year it was Chief Justice John Roberts, a dissenter in 2016, who provided the fifth vote to temporarily block Louisiana from enforcing the law. In their brief on the merits, the abortion providers challenging the Louisiana law portray the case as simple: Because the Louisiana admitting-privileges requirement is “materially indistinguishable” from the Texas law that the court deemed unconstitutional in 2016, it too must be struck down.

Yesterday the federal government [i.e, the Trump “Injustice” Department] weighed in, in a “friend of the court” amicus brief in which it urged the justices either to throw the case out or, alternatively, to allow the admitting-privileges requirement to stand. And if necessary, the federal government told the justices, the Supreme Court should overrule its 2016 decision in the Texas case, Whole Woman’s Health v. Hellerstedt, in which the federal government had argued in support of the abortion providers.

As a threshold matter, the government told the justices that they do not need to reach the merits of the abortion providers’ challenge at all, because the providers lack a legal right to sue, known as “standing.” As a general matter, a plaintiff can only file a lawsuit to protect his own rights, rather than the rights of others. Abortion providers don’t have a right to perform abortions, the government observed, and are therefore relying on the right of their patients to obtain an abortion.

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But if the justices believe that the abortion providers do have a right to sue, the government continues, the Supreme Court should uphold the decision of the U.S. Court of Appeals for the 5th Circuit and allow Louisiana to enforce the admitting-privileges requirement, because the law is constitutional. The Supreme Court’s 1992 decision in Planned Parenthood v. Casey made clear that the central question before the court in this case is whether the abortion providers have shown that the admitting-privileges requirement will create a “substantial obstacle” for Louisiana women who want an abortion; the 5th Circuit “correctly” ruled that they had not, the government wrote, and the abortion providers don’t argue otherwise.

Although the abortion providers argue that, after Whole Woman’s Health, courts should apply what the government characterized as a “freestanding benefits-burdens balancing test,” the government continued, Whole Woman’s Health “did not abandon Casey’s central holding that a law imposes an undue burden only if it creates a substantial obstacle to obtaining an abortion.” If it is not possible to read the Supreme Court’s decisions in Whole Woman’s Health and Casey “to cohere, not conflict,” the government adds, then Whole Woman’s Health should be “narrowed or overruled.”

“U.S. Solicitor General Noel Francisco also filed a motion to participate in the oral argument in March. Lawyers for the state, he informed the justices, have agreed to give the government 10 of their 30 minutes of argument time.”

The New York Times reports More Than 200 Republicans Urge Supreme Court to Weigh Overturning Roe v. Wade:

More than 200 Republican members of Congress on Thursday asked the Supreme Court to consider overturning Roe v. Wade, the landmark 1973 ruling that established a woman’s right to an abortion, in a brief urging the justices to uphold a Louisiana law that severely restricts access to the procedure.

Roughly 80 percent of the Republicans in Congress — 39 senators and 166 House members — and two centrist House Democrats signed the amicus curiae, or “friend of the court,” brief in the case of June Medical Services L.L.C. v. Gee. They also asked the justices to consider overturning another landmark abortion ruling in the 1992 case Planned Parenthood v. Casey.

The court is expected to hear the June Medical case this spring, and a ruling is likely in June. At issue is a 2014 Louisiana law, passed but never enacted, that requires doctors performing abortions to have admitting privileges at nearby hospitals. Only one doctor in Louisiana has been able to meet the requirement, challengers of the law say, and they argue that its sole purpose is to make access to abortion more difficult. Proponents contend the law is needed to ensure the health and the safety of women seeking abortions.

The case is certain to inject the divisive politics of abortion into the 2020 presidential race. President Trump ran and won in 2016 partly on a promise to nominate Supreme Court justices who would overturn Roe, and June Medical is the court’s first case on abortion since Justices Neil M. Gorsuch and Brett M. Kavanaugh, both appointed by Mr. Trump, joined the court.

The sheer number of those signing the brief suggests the importance that Republicans place on restricting abortion rights and telegraphing to their core supporters that they are serious about doing so. The signers include the top three House Republicans — Representatives Kevin McCarthy of California, Steve Scalise of Louisiana and Liz Cheney of Wyoming — and the No. 2 Senate Republican, John Thune of South Dakota.

But Senator Mitch McConnell, Republican of Kentucky and the majority leader, did not sign.

Republican senators who did not sign include: Sens. Susan Collins (Maine), Lisa Murkowksi (Alaska), Dan Sullivan (Alaska), Martha McSally (Ariz.), Shelley Moore Capito (W. Va.), Cory Gardner (Colo.), Majority Leader Mitch McConnell (Ky.), Lamar Alexander (Tenn.), Lindsey Graham (S.C.), Josh Hawley (Mo.), David Perdue (Ga.), Rick Scott (Fla.) and Richard Shelby (Ala.)

The two Democrats who signed: Representatives Collin C. Peterson of Minnesota and Daniel Lipinski of Illinois.

The brief was drafted by Americans United for Life, an anti-abortion-rights group. Katie Glenn, a lawyer for the organization, said that when the court took the case, members of Congress wanted to weigh in. But, she said, they are aware that overturning Roe would be a huge leap, even for a court that is moving to the right.

“No one is going into this case with an expectation that Roe v. Wade will be overturned,” Ms. Glenn said. “However, the court has the opportunity to reconsider the precedent that has gotten us to where we’re at, and that’s all that the members of Congress were seeking to point out, that it is the court’s prerogative to assess the jurisprudence that got us here.”

Democratic lawmakers have filed their own amicus brief calling for the Louisiana law to be struck down. Stephanie Schriock, the president of Emily’s List, a group that works to elect Democratic women who support abortion rights, assailed the Republican brief in a statement.

“Reproductive rights and the ability to make our own health care decisions are fundamental to the freedoms we have under the Constitution,” she said. “Unfortunately, this amicus brief proves that not only is the threat to those rights very real, but it is at a critical tipping point where the minority is ready to strip our freedom away against the majority’s wishes.”

The Republicans’ brief argues that Roe, and a series of abortion rights decisions that flowed from it, are unworkable opinions. “In sum, Roe’s jurisprudence has been characterized by Delphic confusion and protean change,” the lawmakers wrote.

They also took aim at the 1992 Casey ruling, in which the justices upheld the constitutional right to an abortion established in Roe, but found that states could impose restrictions as long as they did not constitute an “undue burden” on abortion rights.

In a 2016 case, Whole Woman’s Health v. Hellerstedt, the court, citing Casey’s “undue burden” criteria, struck down a Texas law similar to the one in Louisiana. The next year, a federal judge in Louisiana, citing Hellerstedt, struck down the Louisiana law, but that ruling was reversed on appeal [by the Fifth Circuit Court of Appeals].

Now the matter rests with the Supreme Court, which is expected to hear oral arguments in March. In their amicus brief, the lawmakers asserted that Casey’s “undue burden” standard was “vague and opaque,” [.i.e., allows for subjectivity] and left judges, including those in Louisiana, struggling to figure out how to apply it.

Pro Tip: Reject the “undue burden” standard of review the court crafted in Casey and return to the “strict scrutiny” standard of review in Roe v. Wade, which courts tend not to be as subjective in applying. It is doubtful TRAP laws would survive under strict scrutiny review. Whole Woman’s Health v. Hellerstedt (2016) was correctly decided.