On Thursday, the Supreme Court stayed a lower court decision that openly defied its most recent case protecting the right to an abortion. Thursday’s order was unexpected, given the ideological makeup of the Supreme Court, and it is likely to be very temporary.
The decision was 5-4, with Chief Justice John Roberts crossing over to vote with the court’s liberal bloc. The stay will last only until the court has an opportunity to consider a request to give the case a full hearing — a request it will most likely grant. That means that the Supreme Court could overrule or drastically undercut the right to an abortion as soon as 2020.
The best lesson to take from the high court’s order in June Medical Services v. Gee is not that the Roberts Court will preserve the right to choose. Rather, the best lesson is that the Supreme Court is the Supreme Court, and even some of its Republican members care more about preserving its own position in the judicial hierarchy than they do about gutting Roe v. Wade.
The Louisiana law at issue in Gee is identical to a Texas law that the Supreme Court struck down less than three years ago in Whole Woman’s Health v. Hellerstedt. Like Hellerstedt, Gee involves a law requiring abortion doctors to “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” As Hellerstedt explained, “there was no significant health-related problem that the [Texas] law helped to cure.”
Nevertheless, a panel of the United States Court of Appeals for the Fifth Circuit upheld the Louisiana law — an act that can only be interpreted as open defiance of the Supreme Court’s decision in Hellerstedt. As Judge Patrick Higginbotham, a Reagan appointee, wrote in dissent, “the majority today fails to meaningfully apply the undue burden test as articulated in Casey and clarified in Whole Woman’s Health.”
Had the Supreme Court denied the stay, it would have sent a clear message to anti-abortion judges throughout the country that they can ignore high court decisions protecting abortion rights. But more than that, it would have been a signal to Republican judges throughout the country that the Supreme Court may not enforce decisions that the GOP disagrees with. Many judges would have likely taken this as a cue to start freelancing, behaving as if binding Supreme Court decisions are now optional.
Today’s Gee order wards off that chaos. And it sends a clear message to lower court judges who think they can ignore the Supreme Court’s precedents: You don’t get to overrule our decisions, only we get to overrule those decisions.
Yet, while the Gee order keeps abortion rights alive for a brief period, do not expect them to last. Three members of the current Supreme Court dissented in Hellerstedt. And the court’s two newest members, Neil Gorsuch and Brett Kavanaugh, both have anti-abortion records and are almost certain to vote to overrule Roe. (Kavanaugh, for what it is worth, also authored a brief dissent arguing that the stay should have been denied in Gee because it was procedurally improper).
That’s five votes. The only realistic uncertainty is whether this quintet will gut Roe in one fell swoop, or by a thousand cuts.
The Supreme Court, in other words, did not so much save Roe as it placed it in hospice care. And five members of the Supreme Court are about to smother it with a pillow.