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UCLA Law Review What About the Rule of Law? Deviation from the Principles of Stare U.C.L.A. Law Review What About the Rule of Law? Deviation From the Principles of Stare Decisis in Abortion Jurisprudence, and an Analysis of June Medical Services L.L.C. v. Russo Oral Arguments Bridget Winkler ABSTRACT The right to abortion was established in Roe v. Wade in 1973 . Abortion s have nevertheless been systemically inaccessible to vulnerable individuals and communities for generations, and anti-abortion state legislatures and the United States federal judiciary have continued to further obstruct abortion access. This effort to undercut reproductive rights has taken on a new sense of urgency throughout the Trump Administration, as individuals with records of hostility toward reproductive rights are confirmed at record pace to lifetime positions on the federal judiciary. These appointees consistently abandon the rule of law when considering cases regarding abortion. The U.S. Supreme Court deviated from the principles of stare decisis in Box v. Planned Parenthood of Indiana and Kentucky (2019) and has further endangered those principles by granting certiorari in June Medical Services L.L.C. v. Russo (2020) to reconsider landmark precedent for abortion jurisprudence. This Article highlights how the Supreme Court consistently makes an exception to the rule of law requiring adherence to the foundational principles of stare decisis when considering abortion issues. Through an analysis of the oral arguments on March 4th, 2020, this Article argues that the Court’s decision to grant certiorari in June Medical Services v. Russo, thereby reconsidering three-year-old precedent from Whole Woman’s Health v. Hellerstedt and forty-year-old precedent from Singleton v. Wulff, is an ominous sign of what is to come. AUTHOR Bridget Winkler is a 3L at American University Washington College of Law and President of the Washington College of Law Chapter of If/When/How: Lawyering for Reproductive Justice. Winkler founded the People’s Judiciary, a project developed to educate and activate law students around the federal judiciary. She is committed to using her privilege as a legal professional to uplift the voices of impacted people in the fight for reproductive justice. 68 UCLA L. REV. DISC. 14 (2020) TABLE OF CONTENTS Introduction .................................................................................................................................................... 16 I. The State of Abortion Jurisprudence ............................................................................................. 18 A. Supreme Court Abortion Jurisprudence: Past and Present......................................................... 19 1. Foundational Abortion Precedent ....................................................................................... 19 2. Whole Women’s Health v. Hellerstedt ..................................................................................... 19 3. Box v. PPINK Provides Insight Into How the Court Will Likely Decide June Medical Services ................................................................................................................................................. 20 II. June Medical Services v. Russo ........................................................................................................... 23 A. Act 620 and its Rise Through the Courts ....................................................................................... 23 B. Abortion Access if Act 620 is Upheld and Singleton is Overturned........................................... 24 C. March 4th, 2020 Oral Arguments in June Medical Services ........................................................ 26 1. June Medical Service’s Argument ........................................................................................... 26 2. Louisiana’s Argument .............................................................................................................. 28 3. Oral Argument for Jeffrey B. Wall ......................................................................................... 30 III. The Court has Deviated From the Principles of Stare Decisis in Favor of Anti- Abortion Interest .......................................................................................................................................... 30 A. What the Oral Arguments in June Medical Services Tell Us ........................................................ 31 B. The Potential Impact of June Medical Services on Abortion Access .......................................... 35 Conclusion ........................................................................................................................................................ 37 15 16 68 UCLA L. REV. DISC. 14 (2020) INTRODUCTION “It is a waste of the Court’s resources to take up a case simply to say we are bound by a party’s strategic litigation choice to invoke rational-basis review alone, but everything might be different under the close review instructed by the Court’s precedent.”1 In the early morning of March 4, 2020, hundreds gathered outside the U.S. Supreme Court building in anticipation of oral arguments in June Medical Services L.L.C. v. Russo. Many were dressed in suits and waited in line to watch the arguments while others geared up to protest. There were two sides rallying, one side in support of June Medical Services and the other in support of Act 620, a Louisiana abortion restriction requiring that all providers have hospital admitting privileges within thirty miles of the location where abortions are provided. I stood on the side of June Medical Services with the Washington College of Law (WCL) Chapter of If/When/How: Lawyering for Reproductive Justice and a cohort of law students from campuses all over the country.2 We held signs and wore matching black bandanas emblazoned with the words “Loud Mouth Law Student.” The bandanas referenced Senator Orrin Hatch’s statements about a protestor suggesting that the committee for Justice Kavanaugh’s confirmation hearings “ought to have this loudmouth removed,” and exclaiming “[w]e shouldn’t have to put up with this kind of stuff. I hope she’s not a law student.”3 I had the ominous feeling that we were not only there to support abortion access in Louisiana, but to bear witness to the elimination of abortion access through an erosion of everything we were told about the rule of law in our respective legal educations. There was something unsettling about our presence 1. Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1793 (2019) (Ginsburg, J., concurring in part and dissenting in part) (internal quotation marks and alterations omitted) (quoting Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 917 F.3d 534, 535 (7th Cir. 2018) (Wood, J., concurring)). 2. The cohort included members of If/When/How: Lawyering for Reproductive Justice chapter organizations from various law school campuses. Kelley Huber & Bridget Winkler, March 4th Was More Than a Rally. It Was a Reminder That the Future of RJ Lawyering Has Arrived., IF/WHEN/HOW: LAWYERING FOR REPROD. JUST. BLOG (Mar. 13, 2020), https://www.ifwhenhow.org/scotus-june-medical-rally-law-students [https://perma.cc/GX77- 8V5Q]. 3. Staci Zaretsky, Orrin Hatch Makes Snide Law School Comment to Protester Who Interrupted Kavanaugh Confirmation Hearing, ABOVE L. (Sept. 4, 2018, 11:43 AM), https://abovethelaw.com/2018/09/orrin-hatch-makes-snide-law-school-comment-to- protester-who-interrupted-kavanaugh-confirmation-hearing [https://perma.cc/6QUS- 5YS7]. What About the Rule of Law? 17 there at all that day: law students, the future of the legal profession, protesting against the same regulation found unconstitutional by the same Court only four years ago. The significance of that day is yet to be unveiled, but an examination of the decisions already made by this Court reveals what we can expect. This Article argues that the Court’s decision to grant certiorari in June Medical Services is part of an ongoing effort of anti-abortion interests to dismantle reproductive rights through the courts by capriciously deviating from the principles of stare decisis when reviewing laws restricting abortion access. This Article acknowledges how these efforts have the greatest negative impact on people of color and financially vulnerable individuals.4 Part I of this Article provides a brief history of Supreme Court abortion jurisprudence that pertains to June Medical Services, including Whole Woman’s Health v. Hellerstedt. Part I also reviews Box v. Planned Parenthood of Indiana and Kentucky, the most recent abortion case before the current Supreme Court. Part II provides an overview of June Medical Services, recounting Act 620 and its rise through the courts, the regulation at issue, and the oral arguments before the Court on March 4, 2020. Part III of this Article argues that the Supreme Court has deviated from the principals of stare decisis in favor of anti-abortion interests, as indicated by the oral arguments and the potential holding of the conservative majority of the Court. Part III also argues that the Court’s decision to reconsider clearly defined and long-standing precedent only after the conservative majority of the Court was strengthened reveals how insufficient separation of powers between the executive and judicial branches are eroding the rule of law. 4. A note on language: This article will primarily use non-gendered language, as individuals impacted by abortion restrictions do not necessarily identify with any specific gender. Gendered
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