Courthouse Steps Decision Teleforum: June Medical Services LLC v. Russo

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum Conference call. This afternoon will be a "Courthouse Steps Decision Teleforum on today's Supreme Court ruling in June Medical Services v. Russo."

 

      My name is Nick Marr. I am an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we're fortunate to have with us Steve Aden, Chief Legal Officer and General Counsel at Americans United for Life. After our speaker gives his opening remarks, we will then go to audience Q&A.

 

Thanks for sharing with us today, Steve. The floor is yours.

 

Steven H. Aden:  Thanks very much, Nick, and thank you all for your time and attention. It's a privilege to be on the phone with you.  

 

      Well, the Supreme Court delivered the promised fireworks this morning in June Medical Services v. Russo, sending out what I think is a 4-1-4 decision, four in the plurality with the Chief Justice concurring in the judgment and four in dissent.

 

      Justice Steven Breyer wrote for the plurality, as he did for the Court in the Hellerstedt decision four years ago. And by all accounts, it seemed to be Hellerstedt redux, both for the four justices in the plurality this time as well as for the Chief Justice, although for separate reasons that I'll get to in a little bit.  

 

I found Justice Breyer's opinion for the plurality to be a paint by numbers. It was remarkably similar to his opinion for the Court in Hellerstedt. He reviewed the rulings of the Fifth Circuit, the Louisiana reasons for crafting the statute, both asserted and what he thought they were.

 

He looked at the standing issue dismissively, actually starting there and first, he said it is waived because Louisiana did not raise it until they got to the Supreme Court and because the plurality regarded this kind of third party justiciary standing as prudential rather than a matter of Article III jurisprudence, an Article III requirement, a constitutional requirement. He said it could be waived, and it was waived because they didn't raise it until they got to the Supreme Court.

 

And then kind of in a you're ugly and your mother dresses you funny kind of opinion he said and by the way, if you hadn't waived it, we'd have said the same thing. And he gave a half page string site to the Supreme Court cases that he said had given abortion providers third party standing to plead on behalf of the patients that have abortions going back, in fact, all the way to the mid-'70s. And he said, you know, it's an established principle that the appropriate challenger to a statute is a party upon whom the challenged statute imposes legal duties and disabilities and that.

 

In this case, that party is the abortion provider. He called June Medical Services, Hope Clinic, the obvious claimant because he said of the burdens and the hurdles it would require for women to assert their own rights. Although, I note in passing that until probably the 1990s, it was fairly routine for abortion providers to sue in the name of Jane Does or Jane Roes or other real persons. But never mind that.

 

And then Justice Breyer focused the merits analysis, I would say, on the question whether Act 620 in Louisiana would foreclose abortion functionally in the whole state of Louisiana as the district court in Baton Rouge had said it would.

 

And Justice Breyer and the plurality did a pretty thorough going review of the evidence, albeit from their point of view. And he went into some detail on the John Doe abortion providers and the reasons why they could not secure admitting privileges even though they had 18 months to do so under the modified temporary restraining order that Judge deGravelles had imposed.

 

He said we knew how this works. We know that hospitals don't like abortion providers. We know that frequently, they require those applying for admitting privileges to have case examples of patients they have actually admitted to the hospital employing privileges or in the past, and abortion is so safe that that's difficult to do.

 

And he said that there were several other administrative obstacles, procedural obstacles, that explained why the abortionists in this case were unable to, by and large, secure the requisite admitting privileges.

 

And then again, in [inaudible 5:48]-like way, he goes on to explain how in his view, that would close most of the abortion provision in the State of Louisiana. It would close two of the remaining three clinics and then shut down probably half the operation of the third. And the abortionists there could not pick up the gap there and provide the residual demand.

 

So all in all, very much like his opinion for the Court in Hellerstedt. And the bottom line was he said we review the district court's findings for clear error. And the plurality did not find clear error in the district court's findings that the admitting privileges requirement does not protect women's health and provides no significant health benefits and makes no improvement to women's health compared to prior law. And on that basis, he says it is unconstitutional.

 

And then the Chief Justice filed a concurring opinion, concurring in the judgment, which was somewhat curious for several reasons. First, because he started by acknowledging that he dissented in Hellerstedt four years ago. And he's very upfront that he continues to believe that Hellerstedt was "wrongly decided. I joined the dissent in Hellerstedt. I continue to believe the case was wrongly decided."

 

But then he says the question today is not whether Hellerstedt was right or wrong but whether to adhere to it in deciding the present case. And then he spills much ink about stare decisis. And for those who watch the court for this particular doctrine, this case, this opinion in particular, I think will be a real bellwether because he's very clear that wrongfulness is not enough. He doesn't take Justice Clarence Thomas's view that if you get a constitutional rule wrong, it ought to be overturned. And he reiterated what he had said before which is that stare decisis absent special circumstances requires the court to treat two cases alike.

 

He said this promotes evenhanded, predictable, and consistent development of legal principles. It fosters reliance on judicial decisions. And for all those reasons, the Court needs to be predictable. And that is why he said in this case, because he cannot distinguish either the language of the Texas and Louisiana statutes nor their effect on abortion provision in those states, he felt bound by the ultimate holding in Hellerstedt.

 

Although he felt bound by the ultimate holding in Hellerstedt, he went on at length to explain why he had a different view of what Hellerstedt required. Now, recall that the Chief Justice, along with the four in the plurality, all said that Hellerstedt was an expression of the undue burden standard of Planned Parenthood v Casey. Hellerstedt doesn't stand alone.

 

It's articulating an established rule standard for review that the Court articulated in Planned Parenthood v. Casey. But the Chief Justice in this case said that the plurality was incorrect. He reads Casey through the lens of Hellerstedt to be not a balancing test as the plurality does, not a straight up balance the benefits of the burdens -- benefits with the burdens rather.

 

But he says that Casey was a two-step analysis, and this is potentially key for down the road. First of all, he said that the threshold requirement is that the state show it have a legitimate purpose and that the law be reasonably related to that goal.

 

So in other words, it's almost a rational basis test if the legislature was promulgating a legitimate rule, in other words, in this case, a legitimate medical standard, and there are decent reasons for it, good reasons for it, reasonably related to -- a reasonable relation between the ends and the means, that's fine.

 

And then you move on from there. You show deference to the legislature as the court said in Gonzalez v. Carhart. You show deference to the legislature, and then you move to the second part of the Casey analysis which is whether the law has an effect of placing a substantial obstacle on the path of a woman seeking an abortion.

 

And so on that basis, he said that he had to concur with the plurality that in this case, the Louisiana situation was not distinguishable from the Texas situation, that there was too much access to abortion foreclosed and that consequently, he felt bound by the holding in Hellerstedt.

 

And there were a couple of interesting side notes with Chief Justice Robert's concurring opinion. One was the matter of standing. He only addresses the standing argument in a very brief footnote. And he simply says for the reasons the plurality explains, he says they have standing.

 

All four members of the dissent questioned whether abortion providers generally or abortion providers in this instance in Louisiana ought to be heard in court pleading the rights of the women that come to them. But the Chief Justice passed over that merely saying I gotcha. I agree with plurality, and I leave it to you, in essence, to figure out why I agree with the plurality because he wasn't explaining.

 

And then you had four justices writing dissents. Justice Brett Kavanaugh wrote a very brief dissent, only a paragraph or two, in which he says essentially that we didn’t have enough facts and he would like the court to send the case back down to determine what the true facts were. You can take that as you like.

 

The case went through the district court and up through the Fifth Circuit twice. And some very able lawyers, not myself included, believe me, but some very fine trial lawyers and the Solicitor of Louisiana said that there was plenty of evidence. And I don't think anybody disagreed with that up to the second go round in the Supreme Court.

 

And then Justice Thomas filed the lead dissenting opinion. Justice Thomas wrote for himself, and he made some of the points that have become familiar to us who have read Justice Thomas opinions in abortion cases. He said the Court lacked jurisdiction to hear the case on standing grounds. Even if there was standing, Louisiana's law was a proper assertion of police powers and that Roe and its progeny is a terrific mess that ought to be reversed.

 

And he -- well, double downed is the wrong term. He tripled or quadrupled down on the ongoing debate he's having with the Chief Justice over whether stare decisis requires adherence to wrongly decided precedents or whether it requires special circumstances to overturn them.

 

There was another dissent written by Justice Samuel Alito. He was joined by Justice Gorsuch in the entirety and by Justice Thomas for the most part except for his call to remand and by Justice Kavanaugh for the most part. Anyone who is a favorite of Justice Alito's -- is a fan of Justice Alito's, as I am, will remember that he had an eloquent and very clever dissent in Hellerstedt. Well, you'll get more of the same here.

 

He calls the plurality out. He calls the Chief Justice out. There's really an error, a flavor of real disappointment, personal disappointment, with the Chief Justice in Justice Alito's dissent and in Justice Thomas's dissent. I think that they feel that the Chief Justice was kind of twisting himself into knots to come up with some of the positions that he does in this case and to perpetuate what they regard as an attractable, Procrustean bed, to borrow a term from the late Justice Scalia. I think they're right.

 

Wrapping up, Justice Gorsuch had eight reasons why he thinks that the Court was wrong in this case. I don’t think I need to go into any depth on those, also a great read. And finally, I'll just make a couple of top line conclusions about the entire decision by the Court today.

 

It doesn’t really settle much, in fact, hardly anything at all. The large fraction test is an afterthought. There is no math. Nobody cares. Apparently, even Justice Alito, who doesn’t call the Court to task on it like he did in Hellerstedt, I don't think there's anything left at large fraction test, frankly, after today except it's just another bit of verbiage that the Court will use now however it likes depending on its perspective.

 

Nobody knows really what the status of standing is. You've got four justices who insist that abortion providers have standing as a matter of routine. You've got four that say that at least they have to prove it or two that say that they don't. And then you've got the Chief Justice in the middle. Arguably, you could say that he agreed with the plurality, so perhaps, you've got a 5-4 court to grand standing routinely.

 

But I think you've got enough for federal courts in countering abortion regulations to call for proof on the matter of the abortion providers similar situation with the patients that they claim to represent in every instance. We'll see what that turns into going forward.

 

Even the question of admitting privileges laws, the Court struck down Texas's House Bill 2 admitting privileges requirement. The Seventh Circuit privileges requirement out of Wisconsin fell by the wayside. Alabama folded its cards and went home. Louisiana did not. And all it got from the Supreme Court was a decision that this time for these reasons in this state, admitting privileges are unconstitutional. So I'm not even sure that that particular very specific issue is settled.

 

And then finally, stare decisis is more confusing and more divided, I think, than really, it's been in modern history. There was a very sharp disagreement among the conservative justices over the meaning and mandate of stare decisis. It's going to find its way into further future abortion cases and into other areas of jurisprudence.

 

I would say that the one thing that conceivably is a silver lining in this case is that you have five votes on the Court. You've got the four dissenters, and you've got the Chief Justice who would insist that at least the proper standard in an abortion case is Planned Parenthood v. Casey, the undue burden standard, and with teeth. And the Chief Justice went through the result in Casey, and he said look, Casey only struck down these spousal notice requirement. Everything else was good to go. And in this case, he just felt that there was too much of a burden. He couldn't disagree with the similarity in the language, the way the facts were applied, and the district court's determinations about the impact, ultimately, on abortion in Louisiana.

 

So one final comment. The Supreme Court in Gonzalez v. Carhart with the Chief Justice -- when the Chief Justice came in in the mid-2000s, the first abortion case out of the box was Ayotte v. Planned Parenthood. It was a miraculous wonder for those of us watching the Court. It was a 9-0 abortion decision, a unanimous abortion decision.

 

And while it agreed with the lower courts that New Hampshire's parental involvement law was unconstitutional, it circumscribed the relief that courts were allowed to apply when they found an abortion provision unconstitutional. It declared an end, essentially, to the abortion post hoc nullification machine and said that abortion jurisprudence will now play by the same rules going forward as other areas of law and did a lot that was salutary, really, for this area of law.

 

And then the following year in 2007, the Court upheld the partial birth abortion act, the federal law, with the same 5-4 majority that the Court had used to go the wrong way, in my estimation, in Stenberg v. Carhart  in 2000, which struck down Nebraska's Partial-Birth Abortion Act. So a lot of us felt that sub silencio, they had overruled Stenberg.

 

But the bottom-line was between Ayotte and Gonzalez v. Carhart, you've really got a new sheriff in town. And we thought that this Court, which I think is -- with the Chief Justice here, is largely the same court which speak clearly and strongly in abortion cases. And Hellerstedt and June Medical Services are not that clear in strong statement as far as I can tell. And that's very disappointing.

 

So I'll take questions then, Nick, and thanks everybody for listening.

 

Nick Marr:  Okay. Thanks, Steve. We'll go to audience questions now. And, Steve, just quickly to let our callers get into the question queue, I'll kick things off. You did speak a bit about this but just to clarify, what are you thinking the standard is going forward for states and for state lawmakers to consider?

 

Steven H. Aden:  Yeah. I think that's an important question because constitutional law is supposed to provide some predictive ability. And I think that many of them will rightly view this decision as an oddity, but remember that the bottom line is the same as it has been since 1992. Any law that is reasonable, legitimate, appropriate, and does not impose a substantial burden on access to abortion in a state will be held constitutional.

 

      Recall that arguably, House Bill 2 in Texas shuttered at least half of the abortion facilities in the state. In Louisiana, there are a couple of providers that drop by the wayside for reasons I hospitably say were unrelated to 620. But the plurality and the Chief Justice felt that the facts were just too strong to show that admitting privileges were too difficult to obtain and that it would create a similar devastating impact on access to abortion as the Court had before it in Hellerstedt.

 

      What is interesting to me is that the Court in Gonzalez said that ordinarily, courts would defer to the findings of state legislatures in abortion cases. But that's not what I see the court in this case doing. They deferred to the district court and to the district court's findings of fact, in which Justice deGravelle really picks apart the statute, the impact, the difficulty of obtaining privileges.

 

      I think that Justice Breyer and the plurality in some ways bent over backwards to believe the assertions of abortion providers. So it's almost as if the plurality especially is saying look, we believe these abortion providers. Why don't you believe them?

 

      And then you have the dissenters saying well, we believe the legislature. Why don't you believe the Louisiana legislature? The problem I have is that the Court in 2007 in Gonzalez said that you believe the legislature. That's not what I see either the district court doing or the Supreme Court plurality doing in this case.

 

      But I think that going forward, very simply, it's -- it really is what it was. It is Planned Parenthood v. Casey, undue burden, however you view that, and there are at least four or five different views of what Casey means in the court today among the justices. But you've got to show that a medical regulation is legitimate, that there's a decent reason for it. And you got to show that it doesn't shut at least half the abortion facilities in the state. And if you can show that, you got a running shot, I guess.

 

Nick Marr:  All right. Great. We'll go to our first audience question now. Caller, area code 214, you have the floor.

 

Caller 1:  Good afternoon. I had a question about the Chief Justice's reliance on stare decisis with regard to Hellerstedt. He noted in his opinion that no one had asked the Court to overturn Casey, but he didn't say one way or another whether anyone had asked to overturn Hellerstedt.

 

And I'm not familiar with the briefing, but if someone had, I thought his opinion was a little weird because it goes through all the benefits of stare decisis and what we look at when we're determining whether to overrule precedent. But he didn't apply it at all in the case. And so I was wondering whether that request had been made or whether he felt bound to follow Hellerstedt because no one had asked him to overrule it.

 

Steven H. Aden:  Yeah. Thanks for that question. I personally don't think it would've made any difference. Although, he is correct that I recall Louisiana did not argue that -- certainly did not argue that Rowe should be revisited, did not argue that case here in Hellerstedt should be "overturned." I think that the Solicitor felt that the case could fit within the confines of Casey and Hellerstedt, and that's what the Fifth Circuit said, and so that that's what they rode with.

 

      At the end, I don't think it matters all that much. I think that the Chief Justice was responding to the dissent when he made those arguments about stare decisis. It was a defensive move and it is -- yeah. I hadn't thought about it but thank you. That's a good point.

 

It is curious that on one hand, he would say why do we need stare decisis? Hellerstedt supplies the rule, and nobody has asked us to overturn it. And yet, he is vociferously defending it. The hounds weren't barking, but he was strongly defending the application of stare decisis in this case. Yeah. That's something to think about. Thank you.

 

Nick Marr:  We'll go to the next question. Caller 410, you're on the line.

 

Daniel:  Yes. Good afternoon. I want to thank you for this presentation. My name is Daniel. Thank you, Mr. Aden. I really have a comment more than a question. I want to express appreciation for -- terminology is important. And as we know, those who favor abortion call themselves pro-choice. They don't want to say that they're pro-abortion. They don't want to say that they're pro-taking away babies' lives.

 

And those who are against abortion should not think of themselves as anti-choice. We're pro-life. And similarly, I just want to express my appreciation that you referred to the earlier case as Hellerstedt and never even mentioned once what it's referred to frequently as Whole Women's Health, which maybe should more accurately be referred to as whole babies' death, but that's just my comments.

 

Steven H. Aden:  Thank you, Daniel. You know, it's interesting that there has been some debate in the past in abortion opinions from the court about terminology. I think it was Justice Ginsburg who took, I believe—please, don’t hold me to this—Justice Kennedy to task for calling abortion providers abortionists. And there was a colloquy there.

 

But the verbiage that I chose wasn't intentional. It wasn't designed to send any points your way. I hadn't even analyzed the opinions today for the verbiage they used. There's a lot to be said for avoiding reductions. And I think there's too much reduction in this area and many areas that we ought to call a spade a spade and understand what we're really talking about.

 

But that's a thought for another time, I guess.

 

Nick Marr:  All right. Thanks, Steve. We'll go to the next question. And I'll ask callers to try to keep their questions to questions and keep them succinct. Thank you. Area code 202, you have the floor.

 

Caller 3:  Yes, thank you. I have a couple of questions. I'm a little confused about Chief Justice Roberts and the comment about undue burden. You seem to be saying that he agreed with the undue burden conclusion about this case, but in Hellerstedt, he found that there was no undue burden. And so I'm a little confused about that inconsistency, if it is.

 

      The second point I have is regarding the issue of stare decisis. You said that an issue applied to conservatives on the Court including Roberts, if we can call him that, seem to be badly divided about the matter of stare decisis. I understand the difference, the dichotomy between Thomas and Roberts, but what about the other three self-described conservatives?

 

Steven H. Aden:  Well, thank you. Your confusion is shared by many to the extent that I contributed to it. I apologize. Let me try to be as clear as I can because it's not easy to follow.

 

      The Chief Justice agreed with the plurality that Hellerstedt supplied the appropriate precedent and that Hellerstedt itself was an articulation, an application, of the main precedent the Court established in Planned Parenthood v. Casey. So both are true.

 

      Casey controls undue burden standard. He felt the Court's application in Hellerstedt controlled. I'm not sure beyond that, I can alleviate anyone's confusion. And maybe somebody can help us with that.

 

      What, essentially, he does is he says look, we've got a statute that's identical, granted. We've got an impact in Louisiana that seems to be indistinguishable from the impact of HB2 in Texas by virtue of the statute in Hellerstedt. So he felt that the cases were so close and that he could not distinguish them factually that he had to go with what the court said in Hellerstedt even though he dissented in Hellerstedt.

 

      Now, as to how the Chief Justice could dissent in Hellerstedt and say that they had misapplied Casey, they misapplied the rule, and then turn around and change his vote in this case and say both Casey and Hellerstedt are good to go, and I've got the real and correct reading of Casey, that's hard for me to answer. Maybe I need more time to think about it. That's a challenging question.

 

      Now, to your second question, I am not, by any means, an expert in the jurisprudence of stare decisis. There are many, many others who are much better equipped to discuss those doctrines, including within Federal Society, my colleague at AUL, Clarke Forsythe, has written on this. My old friend Mike Paulsen at St. Thomas has done some great work on it.

 

      Over the last couple of years or so, there have been, I think, about a half a dozen cases where the Chief Justice has sided with conservatives to apply stare decisis the other way, to overturn prior precedent to the chagrin of the justices in the dissent. And conversely, there have been cases in which the "liberal" justices have voted to overturn precedent to the hue and cry of the "conservative" justices.

 

So it really depends on whose ox is being gored, apparently, as far as I can tell. Perhaps, there are principled reasons why stare decisis was appropriately applied to retain a precedent in some cases and appropriately applied to cast off precedent in others. But if there are, they're beyond me. So I apologize for that. It'd be a good subject for a Federalist Society panel, wouldn't it?

 

Nick Marr:  Thank you. Yeah. We'll go to the next question here. Area code 214, you're on the line.

 

Caller 4:  Hi. I'm calling from Texas. I was just curious if you have any thoughts on ways for states to take a different strategy as the law -- Justice Roberts thought this law was too similar to the Louisiana law. Is there a different strategy states should start taking to, I guess, place some restrictions on abortion but not to the Casey level, just to perhaps address Justice Roberts' concerns?

 

Steven H. Aden:  Yeah. First of all, remember that the Casey standard, if the Chief Justice is correct, and I think he is, the Casey standard still pertains. Any law that mandates say legitimate, reasonable, medical prescription and doesn’t close a large number of abortion facilities should be held constitutional by, I presume, the Chief Justice and the four dissenters from today.

 

      As I said before, I don't think this settles much really except the question of the admitting privileges law in the State of Louisiana. I felt that Justice Breyer -- the term is they bury bones to dig up later in their opinions sometimes. Justice Breyer was critical in a paragraph of the admitting privileges law on the basis that one of the abortionists could not get privileges because the doctor with whom he contracted was averse to public scrutiny.

 

      And so to me, that's a signal that this plurality would reject even the much more common practice of transfer agreements. If you are practicing outpatient medicine, and for some reason, you don't have admitting privileges, although most outpatient physicians do, you'll have a transfer agreement with another doctor who does have the right to admit your patient to the hospital. And you can call them, and they will admit the patient to the hospital and follow them up there.

 

      Again, basic medicine, but that doesn't stop the four justice, I would say, pro-abortion plurality. They simply see the facts as they choose to, and it is what it is. So I would say transfer agreements ought to be litigated. I think that the Chief Justice can see the need to protect women in emergency situations by at least having a means to get them admitted even if the abortionist isn't doing the admission.

 

      None of the other hot topics right now that are working their way through the states were settled today. The Prenatal Nondiscrimination Act case is at the Sixth Circuit en banc is considering, not settled. The question of 20-week gestational limits or previability limits, not settled. Some of those cases are working their way up to the Supreme Court.

 

So I would say to the states, keep protecting the lives of women and expressing the state's interest in protecting the lives of unborn children to the degree that you feel is appropriate and constitutional. And keep fighting hard to defend those laws in court because I still think you've got five votes on the Supreme Court that are ready and willing and able to uphold those kinds of common-sense health and safety laws.

 

Nick Marr:  We'll go to the next question here.

 

Caller 5:  Thank you for the presentation. In light of the Roberts opinion, it is hard for me to imagine a pathway for him to vote to overrule Roe or Casey. Do you see such a path? And if so, what is it?

 

Steven H. Aden:  The only pathway I see is if another justice new to the court got onto the court and began lobbying him hard with very strong, well-articulated views. I'm not here to defend the Chief Justice. I admire the man. He's brought us some very solid opinions over the years. But this, in my estimation, isn't one of them.

 

      I do think that he's susceptible to being pulled one way or the other. I hate to say that, but it does appear that way. And so the way forward that I see is to continue to urge that thoughtful, strong-minded justices get on the Court and hope for the best.

 

      But I have to agree, I do not see at this point that this chief justice would supply a vote to overturn Roe or Casey at this time.

 

Nick Marr:  We'll go to the next question.

 

Gary:  Hi there. This is Gary again up in New Hampshire and two-part question. Last part is going to be about you mentioned something about New Hampshire. I'd like for you to maybe clarify it if there's a case in New Hampshire that goes on point here.

 

But my first question is how do you think this might affect third party standing going forward? Will it change any of that in any way substantially? I know that's not a core part of this case, but it seems like they're missing maybe one of the three elements you typically need for a third party standing, but I could be wrong. So that therein lies my question.

 

Steven H. Aden:  Thank you. Again, I don't think this decision today settles much in that area either. The plurality said that it was waived. They also said that it was established, even if it wasn't waived. The Chief Justice dropped a footnote to say yeah, what they said. His analysis is not forthcoming. The dissent raised serious questions about the third party standing of abortion providers to sue on behalf of their patients.

 

      I think that all of this means that there will be much more litigation on this question going forward. Up until the last couple of years, I did not note that many states were making that argument. And in fact, Louisiana -- it is true what Justice Breyer said that Louisiana did not raise the argument until it reached the Supreme Court.

 

      Whatever your view on the status of third party standing as a matter of Article III jurisprudence or as a matter of prudential consideration, that almost guarantees that there will be state litigants in the future who will say well, we raise it from day one and we seek to prove it.

 

      There will be courts that agree that it's an element to be established and circuit courts with that will have probably different views, different outcomes on which side of that line they fall on. And the Supreme Court may have to pick it up again.

 

      With respect to New Hampshire, I'm speaking of Ayotte v. Planned Parenthood. You will probably recall that former Senator Kelly Ayotte argued the case when she was the attorney general in New Hampshire and argued it very well, I think.

 

The question was -- the call, and I don't have it in front of me. I haven't looked at it for a while, but the question was whether the court appropriately had struck down, I think, the entirety or virtually the entirety of the parental involvement statute, 48-hour notice to parents or one parent—forgive me, I don't recall—in New Hampshire. And the Supreme Court said no, it had not, that it was required to apply the injunctive rule that did the least harm to the whole statute, to narrowly tailor the relief only to the constitutional harm and thereby sent it back down.

 

      So what the court in Ayotte did was put an end to the common practice of abortion industry lawyers to come into court and plead that a whole regulatory chapter on abortion was unconstitutional and have it struck down in toto, which was what the Court did after all in Roe v. Wade, struck down the entirety of the Texas abortion statutes and the Georgia statutes. In fact, there's a -- thanks to my colleague Clarke Forsythe and others, who've looked at the justice's papers as an amusing somewhat colloquy between Justice Brennan and Justice Blackmun.

 

And Justice Brennan says of this pending decision we're about to issue, don't you think we need to give the states more time to come up with new abortion laws? You've annihilated the abortion laws in all 50 states. And Justice Blackmun responds in another memo oh, I think they have enough time. They'll have between January and this fall after all. That'll be enough time for them to come up with new abortion laws.

 

      So there was an end to that. That was part of the termination of the abortion post hoc nullification regime that the court announced in Ayotte that from now on, they would have to show relief in specific circumstances and that the relief had to be narrowly tailored to the constitutional harms.

 

      And then, of course, the following year, in Gonzalez v. Carhart, the Court announced that ordinarily, facial challenges were not favored and that the abortion providers would have to show on a case-by-case basis that as applied, the laws are unconstitutional. And so as I said, we thought that those two rules coming out of the gate from the new chief justice signaled that there was a new approach to abortion jurisprudence. Now, with Hellerstedt and with June Medical Services, I'm not so sure. Thank you.

 

Nick Marr:  All right. We'll go to the next caller.

 

George May:  Hi. George May, attorney in Houston, Texas. You already answered my question for a previous caller on Justice Roberts, but for the dissenters, how many -- does the dissenting opinions give you any crystal ball as to how they might rule if Roe and Casey were at issue, it might be overturned. In other words, do we have four votes, or do we have three for Roe and Casey being overturned?

 

Steven H. Aden:  We clearly have one, which is Justice Clarence Thomas, who has repeatedly said that he thinks Roe is undecided and ought to be reversed. I do not read any of the other dissenting opinions as calling for the overturn of Roe. So whether they are holding their cards at this time or whether they -- I think that Roe and Casey can continue to be applied is something we'll have to find out down the road.

 

      You know, you can take a close look at the jurisprudence and derive your own conclusions on that question. I know I do. But so far, to my knowledge, Thomas is the only one who has said in an opinion that Roe ought to be overturned.

 

      Justice Alito, who's clearly no friend to the doctrine, he comes close, but I do not recall that he has come out and said that. And so if anybody on the line recalls differently, I'd love to be corrected. But that's my best recollection at this point.

 

Nick Marr:  All right. We'll go to the next caller.

 

Caller 8:  Yes, hello. Let me join the others—I'm calling from Richmond, Virginia—in thanking our speaker for the presentation. Do I understand the Chief Justice's analysis to mean that because he was in the minority in Hellerstedt, that he's now bound by it? And if so, in spite of his previous conclusion and the reasoning underlying that conclusion, and if that is so, does it follow that there will not be a dissent even in a given case? Because after all, once --

 

Steven H. Aden:  Hello?

 

Nick Marr:  Sorry. That's my bad. Caller 804.

 

Caller 8:  Sorry. Did you hear what I said? Or do I need to repeat it?

 

Steven H. Aden:  I had you up to the point where you were asking if in a given case that the Chief Justice's position would not permit a justice to lodge a dissent, is that right?

 

Caller 8:  Well, yes. I'm wondering if that's a logical conclusion or the logical extension of what at least seems to be the Chief Justice's approach to Hellerstedt, his original position and what he seems to be maintaining now.

 

A majority will emerge, right? And once it does, why does this reasoning not lead to the conclusion that once there are five votes on one side of a question, there's no basis for anybody to take a minority position.

 

Steven H. Aden:  I think it's a good argument that that's the logical conclusion of the Chief Justice's position. And I've heard that argument articulated from time to time. Of course, different justices on the court continue to dissent in different situations.

 

      I think it was -- I believe it was Justice William Brennan who dissented, I think, in every death penalty case because he just felt so strongly that they were all unconstitutional. And there are other examples that many of you on the line can think of.

 

      So I think the -- it really depends on the individual justice. If they feel strongly enough, they'll continue to dissent just as Justice Thomas does in these cases. So I -- but I -- yeah. What the justices feel and do may be different from the academic application of a particular view of stare decisis.

 

But I get your point, yeah, you could make the argument. It's like an automatic. I mean, the Chief Justice said that stare decisis is not an inexorable command, right, the words he uses. But, boy, he sure acted like in this case, stare decisis was an inexorable command. Yeah, be that as it may.

 

Nick Marr:  All right. We'll go to the next question. And we have three questions left, so in an effort to get to all of them, I'll ask callers to please be succinct in your questions. Caller with the area code 651, you have the floor.

 

Teresa Collett:  Hi, Steve. This is Teresa Collett. So the question to me, because the privileges question is in my view sort of one of those that maybe it's helpful, maybe it's not, to require privileges. The Louisiana record was very different than the Texas record, so I'm ambivalent. But the standing question was the heart of the case, as you and I, I think, agree. And the Chief Justice's unwillingness to wrestle with that is incredibly frustrating.

 

Do you think if a case comes before the court where there is no -- where standing is argued from the trial court on, that he will stand with us against third party standing, not to make a joke but kind of make a joke. Or do you think he actually is committed to this idea that the abortion industry can advance positions that are directly contrary to the interest of women and yet claim that they are the third-party defenders of their patients?

 

Steven H. Aden:  Yeah. Professors, you know, there are several states where there remains only one abortion center in the state. And some of those states, they have a pretty horrific track record and a fairly well documented determination to throw their patients under the bus on behalf of profits and abortion on demand. I can think of Mississippi, which has that awful Jackson Women's Health.

 

      Two-thirds of the women in Mississippi go outside the state to get an abortion even though Jackson's in the middle of the state and has two-thirds of the population of the state. The place has a rep, and it ought to for reasons that we don't have time for me to go into here.

 

The Planned Parenthood in South Dakota is another good example. There's a case working its way up. I think it's called Alpha Center that raises this issue. That place is just horrible and they've -- yeah. They have made it clear that they have no intention of holding their patients' best interest at heart, I think, is the way I see it.

 

      So I think it will take a case like that where you've got a demonstrably sensible health and safety rule. Say, for example, a physician only requirement in the case of surgical abortion if they tried it for a third time to get that pass the Supreme Court, and you've got a state where there's a track record like that where it's hard to gainsay.

 

I thought Louisiana was that state. I mean, it's the dirty and dangerous record of abortion in Louisiana is just horrible. You've got one place closed because the guy was dispensing narcotics without a license. Another place closed because of repeated lawsuits, no malpractice insurance, and it just goes on and on.

 

      But not this time, not this case, but I think that that's what it will take. It will take a demonstrably awful place that's asserting the rights of its patients and a case like that. And I think the Chief Justice may come over.

 

Nick Marr:  Next caller from area code 502, you have the floor.

 

Dan Kenniket (sp):  Hey, thank you. This is Dan Kenniket. So I've got a big picture for you, and I'm super interested. What is your view on how Chief Justice will decide big cases during challenging cultural times in the backdrop of the recent Title VII case, and then you had the census and the DACA cases where I think everyone and their mother thought oh, for sure, that's going to be denied DACA, and they're going to add the U.S. citizen question on there.

 

And yet, it seems like when the audience's is out there, when the times of the culture are really pressuring down, Chief Justice finds a way to nuance himself out of having to make that big decision in favor of what the law should be. And what I mean by that is you look at DACA and the census question, he didn't say the president couldn't do these things, he just said you just went about it the wrong way, which to me is a little weak, but I'm just saying, I see --

 

And then I look back, Obergefell and Hodges, and I see he was against the gay marriage and then you have the Obamacare. So I'm asking and your perspective, because it does seem like the cultural times, what's going on in the country at the time, does have an effect on how he decides and how he writes. Could you comment on that and give us your thoughts on that please?

 

Steven H. Aden:  Yeah, Id' be happy to with a caveat that my view on Bostic, my view on DACA, it really isn't at issue here. But if you believe that the court is going the wrong way on some of these cultural issues, what's your answer? The court has arrogated to itself the role of a super legislature in applying the Fourteenth Amendment.

 

That's why my judgment -- you've got circuses like Justice Kavanaugh's confirmation, what I think are terrible tragedies of politics of destruction because everything is at stake. Everything is at stake. One vote will decide hugely important, historic cultural issues for all of America.

 

That's not the way the Framers of the Constitution intended it, but it's the role that the Supreme Court has arrogated to itself and will continue to arrogate to itself unless and until you get justices on that court who will stand down from that role and make the Supreme Court to be what the Supreme Court was intended to do, which is to decide cases and not impose its own views on social matters. So that's all I'll say on that.

 

      Maybe, last thought, maybe Senator Hawley's right. He stood up after the last decision and he said look, you criticized me for asking close questions in the judiciary committee and now, you know why I did. In my view, we ought to be asking more questions. We ought to be raising these issues more strongly and vetting judges more carefully. That's all I'll say on that. I don't think you walk away from the field because you're frustrated at the decisions that you've got through this political process. I think that you reengage.

 

Nick Marr:  Steve, do you have time for one more question? There's one more caller.

 

Steven H. Aden:  Sure.

 

Nick Marr:  All right. Area code 714, you have the floor.

 

Caller 11:  Hi. My question is fairly succinct, I hope. In light of the factual similarities of the Texas case, how appropriate is it to be for any individual justice to be concerned with public perception of the legitimacy of the Supreme Court in any given case?

 

Steven H. Aden:  I'm not sure I understand the tenor of your question. Of course, in my view, I don’t think it's ever appropriate for a justice to be concerned about the way the court is perceived viz-a-vis the outcome of the case. Is that what you're getting at?

 

      I mean, it's funny, if you don't mind my blue skying on this. The Chief Justice has made a lot of the court's institutional integrity of the view that people will have of the Court both today and tomorrow. His desire to avoid political outcomes and yet, honestly, he seems to be engaged in what I have to believe are political considerations. There's a political calculus there, it seems to me, in some of these decisions.

 

      You go back to the Affordable Care Act decision, which kind of was a harbinger of all this, and you've got to wonder in twisting himself into smaller and smaller knots to uphold precedent or to come out a certain way, is he making himself smaller and smaller? I think he is. I think that history's beginning to get the picture of the Chief Justice that he is a small chief justice. He doesn't lead. He leads from behind, if he does at all, and the Supreme Court is increasingly seen as a malleable political force. And that is very sad.

 

Nick Marr:  All right, Steve, I'll give you a chance for any closing remarks you might have.

 

Steven H. Aden:  I really appreciate this discussion. Your listeners are, as always, very engaged and very thoughtful about these issues.

 

      June Medical Services' abortion jurisprudence isn't just about abortion as critically important as that issue is. It is, as I said, about the proper function of the courts, about whether the Constitution is a living, breathing document that one -- every new generation can interpolate its values into. That's the real danger. And that's a danger that I'm sure many members of Federalist Society see and are concerned about. And I would just say keep fighting other --

 

      In the pro-life movement, I've been a lawyer in the pro-life movement for many years. We recognize that in truly, we would be nowhere without federalism, without The Federalist Society. And conversely, I think The Federalist Society's exhibit A of rampant judicial activism is Roe v. Wade.

 

So the two go hand in hand, whatever our values or our specific positions on different issues are, I think we recognize that we're here together and there are good reasons why we're here together. We have to keep fighting this fight.

 

Nick Marr:  Great. Thanks, Steve. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.