Last week the Supreme Court heard oral arguments in June Medical Services v Russo, which tests a Louisiana law that requires abortionists to have “admitting privileges” before being able to practise at local hospitals. In practice, if the law is allowed to stand, two of the three abortion facilities in Louisiana would be forced to close.
Protests from pro-abortion activists were staged outside the Supreme Court, including a rather off-putting and profanity-laced speech from actress Busy Philipps, of Cougar Town fame. Chuck Schumer, the senator from Wall Street, also took to the podium, calling out the court’s two Trump-appointed conservatives in threatening language.
“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price,” he said. “You won’t know what hit you if you go forward with these awful decisions.”
Schumer later clarified that he meant political consequences, but not many conservatives were persuaded. The Washington Post reached for the “Republicans pounce” trope the day after his remarks, which it certainly wouldn’t have done if a Republican politician had threatened a liberal judge in a similar way. Senate Majority Leader Mitch McConnell rebuked Schumer from the floor the following day.
Most notably, the court’s Chief Justice John Roberts, who has had a mixed record for conservatives, famously choosing to uphold Obamacare, also rebuked Schumer for remarks he called “dangerous”.
“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said.
A spokesman for Schumer replied: “For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Sen Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsburg last week, shows Justice Roberts does not just call balls and strikes.”
The bigger picture here is that with a court with an ostensible conservative majority, conservative states are getting bolder in their attempts to regulate abortion out of existence in their territories.
A similar admitting privileges requirement was struck down by the Supreme Court in 2016, with Anthony Kennedy ruling with the liberals. Louisiana is taking another bite at the apple now that Kennedy has retired.
The liberal Slate legal analyst Mark Joseph Stern had argued that the law’s defenders might have had a better chance with Chief Justice Roberts if “Louisiana had been more candid about its real goal of curbing abortions”, rather than sticking to the argument that admitting privileges served a medical purpose.
This time around, court-watchers found it hard to infer which way Roberts was leaning.