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Supreme Court weighing abortion restrictions

Wmc features abortion rights protesters rally outside SC March 4 2020 Steffani Bangel
Abortion rights protesters rally outside the Supreme Court on March 4. (Photo by Steffani Bangel)

It’s been less than four years since the U.S. Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that a Texas law requiring abortion providers to have hospital admitting privileges was unconstitutional. But they are taking up the issue again; last week they heard oral arguments in a case involving an identical law in Louisiana.

Since the only thing that has changed is the addition of conservative justices Brett Kavanaugh and Neal Gorsuch, the case, June Medical Services v. Russo, has set off alarm bells with advocates. “The fact that this case is even in front of the Supreme Court feels like they could overturn any number of cases pertaining to reproductive rights,” said Rev. Katey Zeh, interim CEO of the Religious Coalition for Reproductive Choice. “Everything is up for grabs.”

The Louisiana law, Act 620, which was blocked by a federal district court, mandates that abortion providers have admitting privileges at a hospital that is within 30 miles of their office or clinic. This type of law, a targeted regulation of abortion providers (TRAP) law, is “expressly crafted to impose unnecessary regulations on clinics and physicians providing abortion care in an effort to curtail or cease their ability to operate,” states June Medical Services v. Gee*: The Potential Impact on Abortion, Civil, and Human Rights, a report from theCenter for American Progress (CAP).

“If the Supreme Court allows this law to stand, states will feel emboldened to pass more extreme laws to decimate abortion access and defy Supreme Court precedents with which they disagree,” said Nora Franco, spokesperson for the Center for Reproductive Rights (CRR), which is litigating the case on behalf of abortion providers.

Julie Rikelman, CRR’s senior litigation director, presented oral arguments on behalf of the providers, making the case that there is no valid reason for requiring admitting privileges. “The medical consensus against these laws is clear,” she told the justices, pointing out that nothing had changed in four years since Whole Woman’s Health to justify a different outcome. Further, the district court had found that the Louisiana law would be even more burdensome than the Texas law, Rikelman argued. “One of the practical real-world impacts, if this law were to take effect, is that women in the Baton Rouge area would now have to travel 320 miles back and forth to New Orleans.”

Gorsuch and Justice Clarence Thomas reportedly said nothing during the hour-long proceedings. Advocates were watching Chief Justice John Roberts, who could be the deciding vote in this case. In Whole Woman’s Health, he voted in favor of upholding the Texas TRAP law, but he is seen as an institutionalist and therefore could rule against Act 620 because it violates a previous Supreme Court decision. Last February he joined the four liberal justices in ruling to keep Act 620 on hold after the 5th Circuit Court of Appeals upheld the law. Roberts frequently asked how the justices should apply their 2016 decision to this case, while Kavanaugh asked whether the admitting privileges requirement would still be considered an unconstitutional undue burden if all doctors could get admitting privileges.

Justice Samuel Alito questioned whether June Medical Services had a legal right to challenge the Louisiana law. In addition to weighing the constitutionality of Act 620, the Supreme Court will also be deciding if abortion providers and clinics can continue to bring litigation on behalf of their patients. Anti-abortion activists have repeatedly targeted third-party standing, which enables third parties to bring litigation on a range of civil and human rights. “Since 1973, the Supreme Court has repeatedly affirmed that abortion providers have standing to defend their patients’ constitutional right to abortion by challenging restrictive laws in court,” said Franco. “Far more is at stake in this case than abortion. The Supreme Court has recognized that third-party standing is necessary to protect a wide range of constitutional rights, including the right to equal protection, the right to raise children, and the right to a fair trial. Reconsidering third-party standing would hinder access to justice across these interconnected rights.”

Advocates are worried about the implications if the Supreme Court upholds 620. “An unfavorable ruling on either or both questions before the court would impact abortion and other rights and could set a dangerous precedent for all kinds of future cases,” said Jamille Fields Allsbrook, co-author of the CAP report and CAP’s director of women’s health and rights. “Other states are watching this because if Louisiana can get away with this kind of law, then the fear is that other states will be emboldened to pass similar restrictive pieces of legislation.”

Even though 620 only briefly went into effect, the damage was done, with one of the remaining clinics in Louisiana closed for good, leaving only three clinics in the whole state, said Steffani Bangel, executive director of the New Orleans Abortion Fund. They get calls weekly from people who want to terminate their pregnancies and mistakenly believe that restrictions are already in place. “There is a lot of misinformation about access to abortion care in Louisiana,” said Bangel. “People already expect that they need to leave Louisiana to access their care. It's important that folks in Louisiana and our Gulf South community know that there are still three clinics remaining to serve people in our state. That is not nearly enough, but those resources do still exist.”

Currently, six states are down to one abortion clinic. If the Supreme Court allows Act 620 to go into effect, two of the three remaining clinics in Louisiana will have to shut down, leaving only one provider in a state with an estimated one million women of reproductive age; about 10,000 women seek abortions in Louisiana yearly. Before the Supreme Court struck down the Texas law in 2016, half of that state’s abortion clinics were forced to shut down. “We are already living a reality in which the ‘right to choose’ doesn't mean that you get to act on your choice,” said Bangel. “All unnecessary restrictions on abortion access further cultivate an environment of stigma and shame by telling people seeking abortions that they are doing something wrong that needs to be regulated.”

Despite what feels like a relentless series of laws intended to curtail access to abortion, last year saw a record number of proactive laws, with nine states enacting 36 proactive abortion policies, according to In 2020, States Are Primed to Build on Recent Gains in Protecting and Expanding Abortion Rights, from the Guttmacher Institute. “The jump in proactive legislation that we saw between 2016 and 2020 is certainly the result of a renewed sense of urgency among abortion rights–supporting legislators and advocates,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute.

The Supreme Court is expected to issue its ruling in June, but already advocates are trouble-shooting in case of an adverse ruling. “I am reviewing our ability to increase capacity if other states have more burdens and obstacles placed upon them,” said Julie Burkhart, founder and CEO of Trust Women, which provides reproductive health care, including abortions, in underserved communities and operates clinics in Wichita and Oklahoma City. “I worry about the people who are unable to travel or those who don't know that they can also ask for assistance. I want us at Trust Women to be able to provide access to people who may be traveling from other states that have more restrictions. We have a no-turn-away policy, and we can help people access contraceptive care at a reduced cost or for free, as well. People can ask us for help, as we want each woman, each person, to be able to decide for themselves what is best for their lives.”

*The Supreme Court case name was changed from June Medical Services v. Gee to June Medical Services v. Russo because of a staffing change at the Louisiana Department Health.



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