SCOTUS Will Hear An Abortion Rights Case With Major Implications
Years of repeated restrictions on abortion access have dwindled the number of abortion-providing clinics in Louisiana down to just three, according to a Center for Reproductive Rights. Recently, the Supreme Court decided it will hear a case on a law that could force two of those clinics to stop providing abortions — leaving the state with just one abortion provider. The lawsuit could also have national consequences: If the court allows one of the measures in the proposed law to stand, it could end all of the current legal battles against abortion restrictions nationwide — with the restrictions still in place. Pro-choice activists say this could be the lawsuit that decides whether abortion is safely and legally accessible in most of the country.
The Louisiana case, June Medical Services v. Gee, has to do with a law that would require abortion-providing clinics in the state to have admitting privileges at a local hospital, or to get clearance from a hospital to admit patients, according to SCOTUSblog. Proponents of the law say it helps protect "women's health," though medical experts say most hospitals won't even grant abortion providers admitting privileges, as they are medically unnecessary.
The Supreme Court ruled against an admitting privileges provision in Texas in 2016, but the 5th Circuit U.S. Court of Appeals went against that ruling and upheld Louisiana's law in September 2018. June Medical Services, which would be the state's last abortion clinic if the law is allowed to stand, appealed in April 2019, and SCOTUS will now hear the case, though it's not clear when.
The admitting-privileges law is an example of what advocates call targeted regulation of abortion providers, or TRAP laws. Advocates say the regulations are not supported by medical science and are often a quieter way of banning abortions by regulating clinics out of existence. In addition to the Louisiana case, TRAP lawsuits are pending in Kentucky, Ohio, Missouri, and Indiana, to name a few. As a result, the outcome of Louisiana's case would affect other states' TRAP laws and providers across the country.
The case is very similar to one SCOTUS has already heard. So why are they hearing it again?
June Medical Services v. Gee is almost identical to another TRAP lawsuit the Supreme Court heard in 2016 where they held in favor of the abortion provider. The case, Whole Woman's Health v. Hellerstedt, concerned Texas' House Bill 2, which regulated abortion providers with an admitting privileges requirement, and a provision that required abortion-providing clinics to meet the building standards of mini-hospitals, or ambulatory surgical centers (ASCs), among others.
The bill closed more than half the clinics in Texas. Whole Woman's Health, a network of health clinics with three locations in Texas, challenged the privileges and ASC requirements, arguing that they have no medical benefit to pregnant people and actually harmed their access to care.
In 2016, the Supreme Court ruled in favor of Whole Woman's Health, finding that the two provisions "place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution," according to SCOTUSblog. The ruling established a precedent, or a legal rule that lower courts should defer to, in effect making all similar TRAP laws unconstitutional.
"The big win in Whole Woman's Health is that a state can't insert itself between a woman and her ability to obtain an abortion and claim that they have women's health and safety as their concern, unless that state can substantiate those concerns with scientific evidence," Amy Hagstrom Miller, president and CEO of Whole Woman's Health, tells Bustle.
Some advocates are worried about the court choosing to hear a case so similar to Whole Woman's Health, given that that ruling should have established precedent. Jennifer Dalven, director of the ACLU's Reproductive Freedom Project, tells Bustle that the court doesn't have to hear arguments again to reverse the 5th Circuit's decision — they could have issued a summary reversal, which would reverse the lower court's decision and likely cite Whole Woman's Health. She thinks the court is hearing the whole case again in part because Justices Brett Kavanaugh and Neil Gorsuch gave the court a firm conservative majority, increasing the chances that they will rule against June Medical and allow the restrictions to stand.
Julie Rikelman, senior litigation director at the Center for Reproductive Rights, which is representing June Medical Services, says the court rarely issues summary reversals, and the Center asked the court to step in "because we thought that the people in Louisiana deserve the same rights as the people in Texas."
Despite Kavanaugh's "history of disrespect for women's rights," as Hagstrom Miller put it, she and Dalven say they're glad the court is hearing the case. "The 5th Circuit ignored the Supreme Court's decision in Whole Woman's Health and tried to basically build a completely new case with the same facts, and it's important for the Supreme Court to keep those circuit courts in check," Hagstrom Miller says.
The court will also consider changes to a legal rule that could wipe out pro-choice lawsuits across the country
The state of Louisiana, which is arguing against June Medical Services in the case, has also asked the court to overturn "third-party standing," a 43-year-old legal rule that allows abortion-providing clinics to sue on behalf of their patients and stop abortion restrictions from taking effect, Vice reported. Without third-party standing, providers would have to find pregnant patients who are willing to go through years' worth of litigation to sue states themselves. Hagstrom Miller says this would be virtually impossible because many people seeking abortions don't have the resources to bring a lawsuit themselves. This process could also delay their access to abortion or put it entirely out of reach, she says.
Dalven says it's strange the court is agreeing to hear the third-party standing argument because it's been the law of the land for so long. SCOTUS could have rejected it outright, but they've instead chosen to reconsider the question. If the court overturns third-party standing, it would also work retroactively, meaning all of the current lawsuits blocking abortion restrictions and bans nationwide would disappear, according to Vice.
The different paths the Supreme Court could take
Allowing Louisiana's TRAP law to stand would leave the state with only one abortion-providing physician, who works at June Medical Services. That would mean that people who need abortions would potentially have to travel long distances to get care.
Rikelman says the trial court judge previously found that if the law stands, there would be one doctor left to serve the approximately 10,000 people a year that need abortion services in the state. "It's really important to emphasize what that means, because it obviously sounds bad and drastic, but the reality is one doctor can't serve 10,000 people," she says, "and so most of the people who need abortion services in that state will not be able to get them."
Legal experts don't like to speculate on how the court will rule, but there are a few different possible outcomes, according to Dalven. She says the result legal experts expect, based on established case law, is for the court to affirm the precedent in Whole Woman's Health v. Hellerstedt. She says there isn't much difference between the Texas law and the Louisiana law and their effects.
"Nothing's changed except for who's sitting on the court," she says. "The constitutional rights are not supposed to change based on who's sitting on the court, and it would be really shocking if the court reversed precedent from just three years ago for no reason." But there is a chance the court could reverse the precedent, which would mean TRAP laws across the nation could stand, making it incredibly difficult for clinics to provide abortions despite these laws having no proven medical benefit.
Louisiana's challenge to the third-party standing rule is separate from its arguments about the admitting-privilege requirement. That means the court's ruling on whether or not the decision in Whole Woman's Health stands will not affect the third-party standing rule, and the court will have to make a separate decision about it. Dalven says the court could rule to affirm or reverse third-party standing, though the latter is unlikely. There's also a third option that's more technical: Louisiana tacked the third-party argument onto its other arguments after the Supreme Court agreed to hear the case. Dalven says that's usually not allowed, because the court doesn't hear new arguments that weren't brought up in lower courts. So the court might say something like, "We might be interested in hearing this, but this isn't really the right case to do so," Dalven says.
The outcome of the case could either reaffirm the decision made in Whole Woman's Health v. Hellerstedt, or radically reshape access to abortion across the country. Though lawmakers argue these restrictions are about health and safety, Rikelman says it's important to remember how they actually impact people's health.
"We know that most of the people who are seeking abortion services in Louisiana are either poor or low-income," she says. "They already have the least access to health care, so these laws are just putting more and more barriers between people and health care services that they need."