Friday, October 04, 2019


I'll acknowledge that this seems like bad news.
The Supreme Court announced on Friday that it will hear June Medical Services v. Gee, a case that could well be the vehicle the Court’s conservatives use to gut the right to an abortion.

At the heart of the case is a 2014 Louisiana law requiring abortion providers to have admitting privileges at a local hospital. Abortion rights advocates say such laws serve no medical purpose and are merely an effort to shut down clinics — and in the landmark 2016 case Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a similar law in Texas.

But ... Gee is the first abortion-related case the Supreme Court will hear on the merits since Justice Brett Kavanaugh replaced the more moderate conservative Justice Anthony Kennedy....

Kavanaugh ... is overwhelmingly likely to vote with his conservative colleagues to uphold the abortion restriction at issue in Gee. The Gee decision may not be the final straw for Roe v. Wade — indeed, it is fairly likely that the Court will prefer to dismantle the right to an abortion in incremental steps. But it is likely to, at the very least, be the beginning of the end.
The safe bet is that Irin Carmon and Scott Lemieux are right -- but Joshua Holland asks a good question:

In 1992, the Court held in Planned Parenthood v. Casey that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right" to one. It makes sense that a more conservative Court will jettison that principle -- or, more likely, claim to uphold it while creating massive opportunities for states to enact just such regulations.

But does John Roberts really want GOP-appointed Supreme Court justices blamed for a sudden massive decrease in abortion availability a few months before a presidential election?

I think this raises the possibility that Roberts will join with the Court's liberals to say, "Hey, this is just like the Texas law, so I'm going to shock you by upholding precedent and striking it down." Which won't prevent the Court from doing precisely what Carmon and Lemieux fear after the election, in response to a different challenge to Roe.

If I'm right, Roberts could be planning two counterintuitive rulings in an election year. The court has also agreed to hear Texas v. United States, a case that could completely dismantle Obamacare. I've already predicted that Roberts will once again be the fifth vote to save Obamacare, and I stand by that prediction -- he doesn't want massive numbers of people losing health insurance in an election year as a result of a ruling by five Republican appointees.

Roberts doesn't want potential Democratic voters angry and riled up, and he'll be pleased if Republican voters' takeaway is "We need to reelect Donald Trump because we obviously need even more right-wing justices on the Supreme Court." If I'm right, he'll take the heat -- the angry tweets from President Trump, the calls for his impeachment on Fox and talk radio -- if it leads to a Trump win and thus puts more Federalist Society corporatists on the bench. The right-wing judicial establishment has been playing the long game for years, and Roberts knows that an election year is a good time to fake being a centrist, even if the man who'll directly benefit from the fakery, Donald Trump, doesn't get it.

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