reproductive rights

Will the Supreme Court Strike a Devastating Blow to Abortion Rights?

Photo: Photo by Mike Kline (notkalvin)/Getty Images

In its first major test on abortion since President Trump appointed conservative Justices Neil Gorsuch and Brett Kavanaugh, the Supreme Court is expected to render a decision soon that will signal to state lawmakers how far they can go in restricting abortion access. How the Court comes down on the case could also serve as an indicator of its willingness to dial back reproductive rights going forward.

The case, June Medical Services v. Russo, comes out of Louisiana, but is strikingly similar to a Texas law the Court struck down four years ago in Whole Woman’s Health v. Hellerstedt. Both are considered to be the targeted regulation of abortion providers: Known as TRAP laws, they are medically unnecessary abortion restrictions that lawmakers pass under the guise of protecting women’s health.

This means the biggest change at play isn’t the Louisiana law itself or how it impacts women. It is who is sitting on the bench.

But first, what is the case?

In 2014, then Louisiana governor Bobby Jindal signed a law requiring that doctors performing abortions have admitting privileges at a nearby hospital. The law was challenged by Hope Clinic (whose corporate name is June Medical Services) and two abortion providers, and has been circulating through the court system ever since.

There are two key issues at the center of June Medical. The first is the restriction itself. The Louisiana law requires that abortion providers have admitting privileges to a nearby hospital, citing women’s safety. But complications from abortion are incredibly rare, and admitting privileges are hard to obtain by design. Roughly 70,000 abortions have been performed at Hope Clinic and only four patients have been sent to the hospital as a result of the procedure — equating to less than a .01 percent hospitalization rate. In conservative states where many hospitals are religiously affiliated or simply don’t want to be associated with abortion, the admitting-privileges requirement can greatly limit the number of providers able to perform the procedure, reducing options for women and therefore placing an undue burden on access. For this very reason, the Court struck down Whole Woman’s Health v. Hellerstedt in a 5-3 decision.

The other issue raised in June Medical is who can bring forward abortion cases. The state is arguing that Hope Clinic and its providers are not appropriate plaintiffs because they are not personally close with their patients, women can protect their own interests, and there is a conflict of interest when providers challenge regulations intended to make patients safer. But the admitting-privileges requirement has not been proven to protect women from harm; if anything, it limits access to safe, legal abortion, increasing risk.

Julie Rikelman, senior litigation director for the Center for Reproductive Rights, which is representing Hope Clinic, also points to the fact that the admitting-privileges law applies directly to doctors. Since they are subject to the law, and could lose their medical licenses or face criminal penalties if they violate it, she asserts that they are the right plaintiffs in this case.

Here’s another way upholding the law could have a huge impact going forward: Future cases would need to be brought by female patients or women seeking an abortion — not clinics or providers. Rikelman said this could be devastating for abortion access and many laws would go unchallenged. Women often do not have the resources to sue, and have concerns about their privacy.

How has SCOTUS changed since its last major abortion case?

In short: a little, then a lot. Gorsuch is reliably conservative, despite his surprising lead earlier this week on the Court’s ruling to protect LGBTQ people from workplace discrimination. But his presence on the bench didn’t change the liberal-conservative balance; he replaced fellow conservative Justice Antonin Scalia, who died a few months before the Whole Woman’s Health ruling (which left eight justices to decide the case).

It is Kavanaugh’s replacement of Justice Anthony Kennedy that marks the most significant change. Kennedy was a moderate conservative who became a key swing vote in Whole Woman’s Health when he sided with the Court’s more liberal justices, agreeing that the Texas law imposed an undue burden on women’s constitutional right to an abortion (a decision that saved most of the state’s abortion clinics from closing). But Kavanaugh is a hard-line conservative whose appointment has had abortion-rights advocates sounding alarms. Now, it is Chief Justice John Roberts — who was part of the dissenting opinion in Whole Woman’s Health, but has recently sided with liberal justices in multiple cases — who is expected to be the critical vote.

What are the political implications?

The decision comes in the middle of an election year, and will no doubt be viewed as either a victory or failure for President Trump, who pledged to put anti-abortion justices on the Court during his 2016 campaign — which he said would “automatically” overturn Roe. It didn’t, of course, but Gorsuch and Kavanaugh haven’t been up to bat yet. Now, in the middle of a national reckoning over racial injustice, these two white men chosen by a white, male president and confirmed by a mostly white, male Senate wield significant power over American women’s bodies.

The optics are glaring: Not only will the Court’s decision disproportionately impact low-income women, who may lack the means to travel out of state for care, but Black women. Due to an intersection of factors, including discrimination within the health-care system and lack of access to affordable, quality care, Black women terminate pregnancies at higher rates than white and Hispanic women. They also represent a higher percentage of state populations in parts of the country with severe restrictions.

How did we get here?

State battles over abortion laws largely stem back to the early ’90s, when in Planned Parenthood v. Casey, the Supreme Court upheld Roe but changed the legal standard by which restrictions are evaluated. The Court threw power back to the states, allowing restrictions that don’t place an “undue burden” on women seeking an abortion. The decision weakened Roe but did not, of course, overturn it. “What we’ve been faced with is really a tug of war over this … undue burden standard,” said Andrea Miller, president of the National Institute for Reproductive Health. “Ever since, it’s been, What is the purpose? What is the effect? What is the substantial obstacle?

What’s likely to happen?

How the Court will ultimately come down on June Medical is unclear, but the Court is expected to render its decision shortly. In March, abortion-rights advocates said they were encouraged by the questioning of Justice Roberts, who initially seemed likely to uphold the Louisiana law. During the hearing, he appeared frustrated when Louisiana solicitor general Elizabeth Murrill and U.S. principal deputy solicitor general Jeffrey Wall — who defended the law on behalf of the state and the Trump administration, respectively — struggled to adequately argue why the Louisiana law and the burden it placed on women was different from the Texas law previously struck down by the Court.

Alexis McGill Johnson, the acting president and CEO of the Planned Parenthood Federation of America and the Planned Parenthood Action Fund, said that she was heartened by the questioning “particularly of the female justices.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan predictably poked holes in Murrill’s arguments. Ginsburg called attention to the fact that women who have medication abortions take the pills at home and therefore a patient would likely go to the hospital closest to her, not her provider, making the doctor’s admitting privileges irrelevant. Kagan raised the issue that hospitals can refuse such privileges for a multitude of reasons that have nothing to do with the quality of the doctors and the care they provide. “They were talking about the practical implications of why this law makes no sense,” said McGill Johnson.

Will the Supreme Court Strike a Blow to Abortion Rights?