Post-Bostock, June Medical Services v. Russo Begins a New Attack on Abortion

https://abcnews.go.com/Politics/supreme-court-hands-major-decision-louisiana-abortion-case/story?id=71254751
UPDATE: The Decision in June Medical Services v Russo was published June 29, 2020, upholding women's right to abortion, Roe v Wade, the Women's Whole Health Services case, and the right of abortion clinics and doctors to sue as third parties to protect abortion rights. See a summary of the decision here: https://abcnews.go.com/Politics/supreme-court-hands-major-decision-louisiana-abortion-case/story?id=71254751

Here's an op-ed in the New York Times finally bringing up the abortion case of June Medical Services v. Russo , soon to be decided by the US Supreme Court.

When the author writes, "It has been an absolute onslaught," I agree in an even broader sense than just the onslaught against women's reproductive rights. Women have been thoroughly derailed from that struggle by trans extremism.

That struggle is more or less over with the ruling in the Bostock/Harris case  that discrimination against trans people is indistinguishable from discrimination against women as women.

Now our heads finally come up from under the waves and we see the ship that has been bearing down on us for some time. It is the ship that bears down on women's reproductive rights to plan their families, have some predictability in their lives, continue their waged work under the male-framed working conditions of the market, avoid impoverishment, continue their schooling, avoid the worst impacts of rape, etc. It's been steaming this way for decades, and we are very tired right now, not ready for this fight.

The Op-Ed author says, "It’s...how smart, knowledgeable people can look at this terrifying Supreme Court case [June Medical], one that should never have even made it before the court, and do little more than sigh. And, I fear, it’s how a bad-but-not-worst-case decision in the coming days — for instance, if the court says laws like Louisiana’s could stand in some states but not others — might be met with, “Whew, bullet dodged.” When, in fact, such a decision would be a signal that the anti-abortion movement is coming alarmingly close to the culmination of its nearly 50-year battle to destroy Roe v. Wade — without the political blowback of actually overturning Roe v. Wade."

This is how women are already taking the Bostock/Harris case. It's not going to have any political blowback. It could have been worse -- it was good for LGB group at least, bullet dodged there.

I was wrong about the way Bostock would go. And two years ago I predicted that trans extremism would be "over" about now. I was wrong about that too. I'm glad trans people have had their basic civil rights acknowledged. But there has been an awful, unnecessary price -- a Justice with zero sensitivity to the real-world conflicts of rights between the two groups, has made further conflicts inevitable and much harder to resolve by shockingly abolishing any distinction between the two groups, putting them both into the "sex" category of the Civil Rights Act.

The author declines to predict how the Court will decide in the June Medical Services case. Abortion could become unobtainable for most women a short time from now. I won't predict the outcome of this case either. I can't. Anything could happen, including the Court ignoring all arguments made by the parties in favor of its own preoccupations.

There used to be some predictabilty in how Justices would rule -- Trump relied on it when he appointed the recent "conservative" newer Justices -- but the problem is, the Court itself is undergoing its own revolution. It is developing a new methodology for deciding cases -- and the new methodology, which ignores legislative intent, precedents, social policy arguments, class arguments, and so much more that has been a part of US judicial decision-making for hundreds of years, is utterly unclear. I can only compare Textualism/Originalism to the methodology of the Augustinian Christian Fathers of the Church in the 4th and 5th centuries AD.

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Here's Lauren Kelley's article on the subject:

"Opinion
What if the Supreme Court Rules on Abortion and the Country Shrugs?
There’s a potentially catastrophic decision coming. If you’ve struggled to focus on it, I don’t blame you.

By Lauren Kelley
Ms. Kelley is a member of the editorial board.

June 21, 2020, 11:00 a.m. ET

Demonstrators expressing both support and opposition to abortion outside the Supreme Court in March.Credit...T.J. Kirkpatrick for The New York Times
Remember early March — that week or so before we fully grasped how much our lives were about to change? I was in Washington, D.C., to attend what turned out to be one of the last in-person oral arguments at the Supreme Court for the foreseeable future — the big abortion case out of Louisiana.

Though I didn’t know it at the time, on that trip I also ate my last meal inside a restaurant for a good while (huevos rancheros and a margarita), went to my last cultural institution (the Smithsonian’s African-American history museum, where I at least avoided the interactive exhibits and winced at a toddler licking the wall) and shared my last hug with someone outside my home.

These were the Before Times, when it was still an ordeal to hear Supreme Court oral arguments. Within weeks, anyone would be able to listen on the internet as the justices debated the future of our rights — as should have long been the case. But in March 2020, one still had to make one’s way to Washington, with either a press pass in hand or the patience to sit outside the court building for hours, in hopes of getting a seat.

As with so many things that loom large in our imaginations, the room where the action happens at the Supreme Court is surprisingly small. It has a weight, though, all mahogany and marble. It feels important to be there.

The case at hand that day was certainly critical. The decision in June Medical Services v. Russo, expected imminently, could lead to the shuttering of clinics across not just Louisiana but also large parts of the country. Worst-case scenario — which is a real possibility, given the court’s rightward lurch in recent years — abortion clinics would also no longer be able to bring lawsuits on behalf of their patients, as has been common for decades. For all future abortion cases, plaintiffs would have to be individual pregnant women who’ve been turned away from getting the procedure — women who would then need the resources and wherewithal to wage a legal battle that would almost certainly not be resolved in time for them to actually get an abortion.

The sweeping changes this case could usher in make it all the more depressing that the looming ruling has gotten relatively little attention amid the tumult of this year. Depressing, but understandable — I cover this issue for a living and even I’ve struggled to focus on the case, given everything else happening in the world.

But there’s another reason people might not have their hair aflame about this case, even if they generally care about reproductive freedom: We’re worn down. By the pandemic, by racist police violence, by so much else that’s roiled 2020 — but also by years and years of abortion battles just like this one.

I really do mean just like this one. June Medical Services v. Russo is a near total rehash of a Supreme Court case out of Texas that was decided in the summer of 2016 — favorably for abortion rights, which feels increasingly hard to imagine these days. The two cases deal with identical anti-abortion laws; the court merely brought on a few anti-abortion justices and shifted its gaze one state to the east.

The liberal justices’ exasperation over this fact was palpable in the courtroom in March. At one point, Justice Stephen G. Breyer, who is 81 years old and has been on the court for more than a quarter-century, confirmed with the lawyer arguing on behalf of abortion rights that aspects of the case could “require either directly or indirectly overruling eight cases of this court.” What was left unspoken came through clearly in person: “Give me a break. We’re not going to throw out decades of abortion rulings here, are we?”

More than once, Justice Sonia Sotomayor interrupted the lawyers for Louisiana with an incredulous “I’m sorry” — in a tone that seemed to speak more to her sense of disbelief than matters of pure etiquette.

Justice Ruth Bader Ginsburg was fierce and sharp as always, once again defending the rights that have been her life’s work. It must be said, though, that it was frightening to see the then 86-year-old, who’d recently fought pancreatic cancer, so small and frail as to be nearly hidden by the bench.

If you reflect on the past decade of reproductive politics, you too might share some of the justices’ frustration. We’ve been through a lot. Some of it progress, to be sure — like that 2016 ruling in Whole Woman’s Health v. Hellerstedt, which knocked down abortion restrictions in Texas.

But the overall trend has been toward much less access to both abortion and birth control, especially for poor women. After all this time, the insults have started to run together into an indistinct misogynist slurry. The hundreds upon hundreds of state anti-abortion regulations. Sandra Fluke, the “slut.” Hobby Lobby. “Legitimate rape.” The laws banning abortions before many women know they’re pregnant. And the legislation that tried to straight-up ban all abortions.

It’s been an absolute onslaught, and one that’s gotten more extreme over the years. That’s why there was even a conversation recently in anti-abortion circles about whether doctors could reimplant ectopic pregnancies. (They can’t.) It’s how a law banning abortion at 15 weeks of pregnancy has been made to seem not so bad, even though it’s just as unconstitutional as a six-week abortion ban. It’s why Tennessee passed a six-week ban just a few days ago — in a dramatic, middle-of-the-night gambit — and few people seem to be talking about it.

It’s also how smart, knowledgeable people can look at this terrifying Supreme Court case, one that should never have even made it before the court, and do little more than sigh. And, I fear, it’s how a bad-but-not-worst-case decision in the coming days — for instance, if the court says laws like Louisiana’s could stand in some states but not others — might be met with, “Whew, bullet dodged.” When, in fact, such a decision would be a signal that the anti-abortion movement is coming alarmingly close to the culmination of its nearly 50-year battle to destroy Roe v. Wade — without the political blowback of actually overturning Roe v. Wade.

Of course, it’s impossible to know exactly what the Supreme Court will do. In recent weeks the court has delivered two significant, and somewhat surprising, progressive victories, in its rulings on L.G.B.T.Q. discrimination and DACA. And if the abortion ruling is shocking enough — either a purely positive outcome or a more obviously catastrophic one — there will no doubt be a significant public reaction. But a lot of court watchers expect that the decision will be neither of those things.

After the arguments were over, back in March, I spent some time taking in the dueling protests that had formed on the plaza in front of the Supreme Court building. The pro-choice rally seemed bigger and livelier. Attendees wore hats that said, “My Right My Decision,” while the actors Busy Philipps and Elizabeth Banks addressed the crowd.

But you know what the anti-abortion side had? A better sound system. At some point it became difficult to make out what anyone was saying, and I drifted off to find a cab."