What happens to rule of law if the law keeps changing?

When Justice Stephen Breyer began to speak, Amy Hagstrom Miller could barely believe it.

As he continued, she began to wonder if she was in the U.S. Supreme Court at all, or if she was dreaming.

The headline from Justice Breyer’s majority opinion four years ago, in Whole Woman’s Health v. Hellerstedt, was that the 5-to-4 decision found a Texas law unconstitutional in placing an “undue burden” on a woman’s right to seek an abortion. But the opinion went further, articulating a test of the potential medical benefits and burdens that regulation must satisfy to be constitutional.

For Ms. Miller – president and CEO of Whole Woman’s Health, the lead plaintiff in the case – it “was a pretty powerful thing to witness.”

“Not just the findings of fact, but the reasoning in the decision was beyond anything I’d dared dream,” she adds. “Sitting in that courtroom, I know other states are going to benefit from this.”

That was four years ago – no time at all in the relatively geologic pace of the high court – and those benefits are now under scrutiny. Today, the Supreme Court heard arguments in a case involving a Louisiana law virtually identical to the Texas law it struck down in 2016. One feature of today’s case that is not the same as four years ago: the Supreme Court itself, with two new conservative jurists, including one in place of Justice Anthony Kennedy, a deciding vote in Whole Woman’s Health.

As the argument in today’s case, June Medical Services v. Russo, illustrated, it leaves the justices grappling with not only one of the most partisan and emotional issues in the country today, but also with the broader implications its ruling could have on their own institutional strength and the rule of law.

“People have very strong feelings and a lot of people morally think it’s wrong, and a lot of people morally think the opposite is wrong,” said Justice Breyer near the end of today’s argument. “I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”

Citing eight precedents on abortion, he told Deputy Solicitor General Jeffrey Wall, “You really want us to go back and reexamine this, let’s go back and reexamine Marbury versus Madison,” the 1803 decision establishing federal courts’ power of judicial review.

“Why depart from what was pretty clear precedent?” he continued.

How different?

Abrupt shifts in decision-making are customary in the executive and legislative branches of U.S. government. In the courts, however, it could have dangerous ramifications for the rule of law.

“It’s very difficult to be a law-abiding person, if [the law] is constantly changing,” says Kenneth Williams, a professor at South Texas College of Law in Houston.

“Courts have traditionally been very reluctant, and proceeded very slowly at overturning precedents,” he adds. “But those restraints seem to be lessening more recently as courts become more partisan, as the judges have become more partisan.”

The 5th U.S. Circuit Court of Appeals has long been one of the most conservative appellate courts. It upheld the Texas law later struck down in Whole Woman’s Health. The Supreme Court justices ruled that the law had “no ... health related benefits” and would shutter half of the abortion clinics in the state.

Federal district Judge John deGravelles followed that ruling when, in 2016, he blocked Act 620, the Louisiana law, from going into effect. The law, he found, would leave “one provider and one clinic” in the whole state. (The Monitor visited one of the clinics last year.)

A three-judge panel of the 5th Circuit reversed that ruling, writing that Act 620 was “remarkably different” from the Texas case. Since obtaining admitting privileges in Louisiana isn’t as difficult as in Texas, they said, the law would only potentially close one clinic and “affect, at most, only 30% of women.”

Chief Justice John Roberts – considered the court’s ideological center since Justice Kennedy retired – asked a similar question during Wednesday’s argument. Instead of Whole Woman’s Health being the national standard, he asked Julie Rikelman, a Center for Reproductive Rights attorney, should regulations in different states be evaluated individually?

“You have to have the district court examine the availability of specific clinics and the admitting privileges of doctors” in each state, he continued. “Couldn’t the results be different in different states?”

They could be different in different states, Ms. Rikelman replied, but since the Supreme Court ruled in 2016 that the Texas admitting privileges law “was medically unnecessary and its burdens were undue, that holding should clearly apply to Louisiana's identical law.”

“Up for grabs”?

When re-evaluating a precedent, the Supreme Court is supposed to apply the stare decisis doctrine. Specifically, the justices are supposed to consider four factors: the quality of the past decision’s reasoning, its consistency with related decisions, legal developments since the past decision, and reliance on the decision throughout the legal system and society.

“In the abortion area [stare decisis] is a little bit for up for grabs,” says Gillian Metzger, a professor at Columbia Law School, since the right to an abortion has been contested for decades – from before the Supreme Court declared it constitutional in Roe v. Wade in 1973.

“But I don’t think Whole Woman’s Health marked a significant departure from” past abortion precedent, adds Professor Metzger, who co-authored an amicus brief in support of the groups challenging Act 620.

The older a precedent, the more courts and society have come to rely on it, stare decisis doctrine holds. In that sense, it could be less damaging to adjust or overturn a relatively new precedent.

On the other hand, “with a three year-old or four year-old precedent, you’re almost never going to have a different circumstance that would warrant overturning it,” says Professor Williams.

That may not be the case with another precedent Wednesday’s case is raising, however.

Third-party standing

Instead of narrowing, or overruling, Whole Woman’s Health, the justices could focus on a second question raised in a cross-petition from the state of Louisiana: whether abortion providers have “third-party standing” to challenge regulations on behalf of patients.

Justice Clarence Thomas, one of the court’s most conservative members, has often criticized allowing abortion providers to use it, and Justice Samuel Alito expressed similar thoughts during today’s argument.

“The constitutional right at issue is not a constitutional right of abortion clinics, is it? It’s the right of women,” he said. “Can there be third-party standing if there is no hindrance whatsoever to the bringing of suit by people whose rights are at stake?”

The Supreme Court has applied third-party standing in abortion and other medical contexts for almost 50 years.

If abortions clinics are blocked from challenging abortion regulations, only women seeking an abortion would be able to. With the stigma associated with abortion cases, combined with the fact that litigation usually lasts longer than the time period in which a woman could get an abortion, those plaintiffs would likely be difficult to find, says Melissa Murray, a professor at New York University School of Law.

“A lot of people probably wouldn’t understand what it means for doctors to lack standing,” she continues, “but lawyers in this field would know immediately that [it] would make it much harder to bring these challenges.”

Insubordinate circuits?

It may be that the Supreme Court would have preferred to not hear this case at all – or at least not for a few years. The 5th Circuit had other ideas.

“By not adhering to pretty clear precedent [the 5th Circuit] put the Supreme Court in a position where it had to take this case, even if it would have preferred to wait and see how the law develops,” says Professor Metzger.

And if the justices uphold the 5th Circuit’s ruling, she adds, “it really is inciting other lower courts who are so inclined to take similar steps and really push issues onto the Supreme Court’s agenda.”

Abortion has for decades been an emotional, polarizing issue. That political heat has intensified in recent years with candidate Donald Trump pledging to nominate justices who would “automatically” overturn Roe.

His two appointees to the high court – Justices Neil Gorsuch and Brett Kavanaugh – both described Roe v. Wade as settled precedent during their confirmation hearings. Both were also relatively quiet during today’s argument (Justice Gorsuch didn’t ask a single question).

But “if the court is seen as hollowing out Whole Woman’s Health only four years [later], there’s going to be a lot of people ... who will see this as a political decision,” says Professor Murray.

“That’s something Chief Justice Roberts, who has been a steward of court’s institutional integrity, is thinking about, or should be thinking about,” she adds.