Wednesday, July 1, 2020

June Medical Services Analysis

Senator Mike Lee spoke on the Senate floor Tuesday about the Supreme Court's opinion in June Medical Services v. Russo.
Mr. LEE. Madam President, I come to the floor wanting to discuss a case called June Medical Services v. Russo. This was a decision announced by the Supreme Court of the United States yesterday.

This is a decision that hasn't gotten as much attention as many cases that go before the Supreme Court. It is, nonetheless, a significant decision, and it is a decision that, I believe, is deeply flawed and betrays many of the legal and constitutional principles that the Supreme Court of the United States purports to apply and is supposed to be bound by as it decides cases and controversies properly brought before its jurisdiction.

The June Medical Services case involved the constitutionality of a statute enacted by the Louisiana Legislature, known as Act 620. The legislation in question required any doctor performing abortions within Louisiana to hold active admitting privileges at a hospital within 30 miles of the location of the abortion clinic in question. The Act then defined what it meant to have acting admitting privileges, and it did so in terms of a reference to the ability to admit a patient and to provide diagnostic and surgical services to such patient. It is understandable why the State of Louisiana or any State might want to consider adopting such legislation.

I want to be very clear at the outset that this case did not involve any legislation prohibiting abortion. In fact, there is nothing about Act 620 that made abortions illegal in Louisiana nor is there anything about Act 620 that would have made it practically impossible or really difficult for people to obtain an abortion. That is not what it did. It simply acknowledged the fact that an abortion is a type of surgical medical procedure and, in taking into account the fact that it is a medical procedure, is sometimes fraught with medical peril that can sometimes result in people getting hurt and people having to go to the hospital and that it might be helpful in those circumstances to have the person who performed the procedure have admitting privileges at a hospital within 30 miles of the abortion clinic.

The constitutionality of the law was challenged in a lawsuit brought by five abortion clinics and four abortion providers in Louisiana. Now, they challenged the law in Federal district court, and they did so before the act even took effect, arguing that it was unconstitutional because it imposed an undue burden on their patients' right to obtain abortions. The abortion clinics and the medical providers at issue—the doctors and the clinics that challenged it—were quite significantly not arguing that these were their own constitutional rights that were being impaired. They were, instead, arguing that they had standing, that they had the ability to stand in the shoes of those who were among their patients, those whom they served.

So I would like to talk about three critical features of this decision and why I think the decision was wrong in all three respects.

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