Anyone hoping to read the tea leaves on a major abortion case before the Supreme Court this week were left disappointed on Wednesday as pivotal justices refused to tip their hands in opening arguments.
Abortion rights supporters and foes rallied outside the court Wednesday before arguments in June Medical Services v. Russo—a case that threatens to undermine abortion access around the country. The suit concerns a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. Advocates argue there is no medical benefit to the law and it will lead to further restrictions on abortions if the court allows it to stand.
As oral arguments started Wednesday, all eyes were on Chief Justice John Roberts and recent appointee Brett Kavanaugh. Roberts is largely considered to be the swing vote in this case, while Kavanaugh—who received strong support from anti-abortion groups during his confirmation process—will be making his first Supreme Court ruling on reproductive rights in this case.
Kavanaugh and fellow Trump appointee Justice Neil Gorsuch were the only two justices not on the bench when the Supreme Court overturned a nearly identical law out of Texas in 2016, making them particularly interesting to court watchers. But the two justices gave up little during oral arguments, in which Gorsuch asked no questions and Kavanaugh returned repeatedly to the same hypothetical point.
The plaintiff, June Medical Center, claims most of its doctors are unable to obtain admitting privileges in Louisiana and would be forced to suspend their practice if the law took effect. But Kavanaugh repeatedly asked Julie Rikelman, the attorney for the plaintiffs, whether the law would still be unconstitutional in a state where all abortion providers could easily get admitting privileges at local hospitals.
Rikelman responded that such a law would pose “a much harder question than this case,” but would still have no medical benefit.
“The medical consensus against these laws is clear,” she said, adding later, “In fact, the district court here found that this law was a solution for a problem that didn’t exist and would actually jeopardize the health and safety of people in Louisiana.”
Chief John Roberts, who voted to uphold the Texas law in 2016, was even harder to read. He repeatedly asked attorneys on both sides whether the law’s constitutionality should be decided state by state—for instance, by examining the number of clinics and providers in each jurisdiction.
Some court watchers believed this was a way for Roberts to rationalize the court reaching a different conclusion in this case than in the Texas one. But Helene Krasnoff, the head of public policy litigation and law at Planned Parenthood, said she was actually encouraged by his line of questioning.
“On the benefits side of this equation at least, he asked several times, ‘Why would [this law] be any different? Why would this law that didn’t help anyone in Texas help anyone in Louisiana?’” she told The Daily Beast. “I hope he was asking that because he understands it wouldn’t.”
The liberal justices, meanwhile, laid into the defense, asking them to defend the medical necessity of the law's various requirements. (The American College of Gynecologists and Obstetricians, American Medical Association, and 11 other medical groups have all stated that admitting privileges do not promote the health and safety of abortion patients.)
Justice Ruth Bader Ginsburg asked several times why the law requires providers to have admitting privileges within 30 miles of their clinic, when the few complications that can occur after an abortion generally arise after the patient is home. Justice Sonia Sotomayor, meanwhile, questioned why existing state licensing requirements weren’t sufficient.
“You’re making it sound like there is no state licensing of these doctors,” she told Louisiana Solicitor General Elizabeth Murrill. “They are licensed. They are regulated.”
But even abortion rights advocates were divided on what all the questioning meant. Krasnoff said she believed the justices understood that this case was no different from the Texas case, known as Whole Woman’s Health. But Ilyse Hogue, the president of NARAL Pro-Choice America, was more hesitant.
“I think President Trump ran for office promising to put justices on the bench that were committed to ending abortion, and none of them actually—at least in oral arguments—veered from that,” she told The Daily Beast.
“There’s no factual basis, no welfare reason, to overturn recent precedent,” she added. “But it did seem like some of the justices were looking for a way.”
Both Hogue and Krasnoff participated in a rally in front of the Supreme Court steps Wednesday, where abortion rights supporters traded their pink pussy hats for teal beanies bearing the logo of the Center for Reproductive Rights. Though the rally featured celebrities like Busy Phillips and Elizabeth Banks—and abortion-world celebrities like acting Planned Parenthood President Alexis McGill Johnson—it failed to draw the thousands of supporters who turned up for Whole Woman’s Health arguments in 2016.
Still, the reproductive rights supporters outnumbered the anti-abortion protesters from groups like Students for Life and Susan B. Anthony List. A sizable contingent of abortion opponents flew in from Louisiana to cheerlead their state law, along with speakers like Louisiana Attorney General Jeff Landry. A pair of young women from Louisiana Right to Life, who described themselves as “pro-life feminists,” carried signs reading “Feminist since conception” and “Pro non-violent choice.”
Aimee Murphy, the executive director of the anti-abortion group Rehumanize International, said she hoped the case would eventually lead to the overturning of Roe v. Wade. But even she was surprised that the court had agreed to take up this case so soon after Whole Woman's Health.
“I think it’s interesting that they’re hearing a similar law again, because that’s usually not supposed to happen,” she said. “So I’m interested to see why the court decided to take it in the first place.”