This Month, the Supreme Court Could Gut Roe v. Wade

by Oliva Graziano

On March 4, the Supreme Court heard arguments in June Medical Services LLC v. Russo. Their ruling in this case could undermine the right to legal, safe abortion across the country.

June was brought by several abortion providers challenging a 2014 Louisiana law that requires physicians who perform abortions to “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced.” That might sound like a measure to protect patients’ safety, but it’s actually an anti-choice strategy intended to shut down abortion providers. If the Louisiana law goes into effect, legal abortion in the state would completely vanish. Just one doctor who performs abortions in Louisiana has admitting privileges, and he’s stated that if the Supreme Court makes him the state’s only legal abortion provider, he’d retire due to concerns about being a target for anti-choice violence.

Reproductive rights advocates fought this same battle just four years ago in Whole Woman’s Health v. Hellerstedt (WWH), a 2016 case in which the Supreme Court struck down a Texas law nearly identical to the one at the center of June. In WWH, the Court found that requiring doctors who provide abortions to have hospital admitting privileges would impose an “undue burden” on abortion access without producing any medical benefits to justify that burden.

If the Supreme Court overturns its 2016 WWH ruling, it would not only eliminate abortion access in Louisiana but would embolden anti-choice politicians nationwide to pass similarly restrictive legislation in their states. In addition to Louisiana and Texas, 15 states would likely see significant restrictions on abortion access. Seven states have already passed laws requiring admitting privileges, and the courts are currently the only thing stopping them from taking effect. If the Supreme Court upholds Louisiana’s restrictive law, it would signal to anti-choice politicians across the country that they can legislate the right to safe, legal abortion established by Roe v. Wade out of existence.

Legalizing TRAP laws

The Louisiana law at the center of June is an example of what’s known as a targeted regulation of abortion providers (TRAP) law. TRAP laws are medically unnecessary requirements placed on abortion providers with the goal of forcing reproductive health clinics to close. They unfairly single out clinics that provide abortion care by imposing unique requirements that are more burdensome than those placed on other medical providers. These laws are often disguised as measures to “protect women’s health,” but they don’t actually have any medical justification or improve patient safety. They just stigmatize abortion and make it harder for reproductive health clinics to continue providing care

Examples of TRAP laws include:

● Requiring reproductive health clinics to meet building requirements for ambulatory surgical centers (ASCs), despite not performing procedures as risky or complex as those conducted in ASCs

● Requiring doctors to have admitting privileges at a nearby hospital

● Requiring clinics to be a certain distance away from schools

● Requiring clinics to give private medical information about their patients to their state government

● Requiring clinics to have hallways that are a certain width, forcing them to make expensive and unnecessary modifications

The TRAP laws challenged in WWH and June both require doctors who perform abortions to “have admitting privileges at a hospital within 30 miles of where the abortion was performed.”

Hospital admitting privileges don’t improve abortion providers’ quality of care or outcomes for patients, and they’re difficult for doctors who provide abortions to get. Major complications requiring hospitalization are incredibly rare in abortion procedures — just 0.3 percent of first-trimester abortions result in hospitalization.

When patients do have to be hospitalized, it’s still not necessary for their doctor to have admitting privileges. Under federal law, every hospital has to treat someone who arrives experiencing a medical emergency, regardless of their doctor’s admitting privileges. Plus, when abortion patients experience a complication, it’s typically after they’ve already returned home. In those cases, they’ll go to the hospital nearest to them, not the one nearest to the clinic where they received care. “It’s odd, the 30 miles from the clinic, when most of these abortions don’t have any complications and the patient never gets near a hospital, but if she needs a hospital, it’s certainly not going to be the one near the clinic,” said Justice Ruth Bader Ginsburg during the oral arguments for June. “She will be home.”

“This law was a solution for a problem that didn’t exist and would actually jeopardize the health and safety of people in Louisiana,” said Julie Rikelman, who represented the abortion providers in June. “The AMA [American Medical Association] and ACOG [American College of Obstetricians and Gynecologists] are clear that these laws have no medical benefits whatsoever and only impose barriers to abortion. And that is true in every state, regardless of the state circumstances. These laws will always put barriers to abortion while serving no health and safety benefits.”

Furthermore, admitting privileges are hard for abortion providers to get. Hospitals often require doctors with admitting privileges to live near them and admit a certain minimum number of patients every year. Because abortion is so safe, doctors generally won’t reach that minimum number. Rather than an important measure to protect patients, admitting privileges are actually an unnecessary requirement that’s difficult for most doctors who perform abortions to meet, thus leaving clinics without the doctors they need to provide care.

TRAP laws like those in Texas and Louisiana are anti-choice strategies designed to shut down clinics, stigmatize abortion, and restrict access, not innocent attempts to improve health outcomes. If WWH hadn’t struck down Texas’s TRAP law, about half of the clinics in the state would have closed. If the Supreme Court allows Louisiana’s TRAP law to go into effect, all of the state’s clinics would likely close. Abortion wouldn’t become safer in Louisiana; it would become inaccessible.

What’s going on with “standing”?

Also under threat in June is providers’ right to sue on behalf of their patients — whether they have what’s called “third-party standing.” Louisiana has argued that abortion providers cannot challenge the state’s TRAP laws on behalf of their patients because they are “third parties” that have “conflicts of interests” and “insufficiently close relationships with their patients.” Justice Alito shared Louisiana’s perspective during the oral arguments and criticized the providers’ position as plaintiffs. He suggested that they couldn’t have third-party standing because the issue in this case is the constitutional right to abortion access — something that directly impacts patients, not providers.

These arguments, of course, are nonsense. First, doctors who perform abortions will be directly impacted by Louisiana’s law; if they violate the unnecessary requirements of the TRAP law in order to continue providing care to patients, they would face legal consequences. Rikelman pointed that out, noting that “the plaintiff is the one directly regulated” by the Louisiana law: “This is a law that restricts abortion by regulating the physicians, rather than their patients. And so it’s appropriate for them to be the plaintiffs here.”

Second, there is no “conflict of interest” between abortion providers and their patients in this case; they have a shared interest in keeping abortion accessible in Louisiana. “The state has not pointed to a single thing that would have been different if one woman had been joined in this lawsuit,” Rikelman said. “To the contrary, the issues that the state says are the key issues in this case, whether this law serves health and safety benefits and how difficult it is for physicians to obtain privileges, are issues that the physicians are particularly well suited to litigate.”

Third, the Supreme Court has already ruled that abortion providers can sue on behalf of their patients because patients themselves often cannot sue due to the time constraint of pregnancy or privacy concerns. Justice Stephen Breyer pointed out that there have been at least eight cases in which “the Court either expressly or silently allowed the doctors to sue on behalf of the women….So if we didn’t in this case, it would require either directly or indirectly overruling eight cases of this Court.”

Justices Sonia Sotomayor and Ruth Bader Ginsburg both reaffirmed that providers should be allowed to participate in cases like June. “To the extent that other women may not have brought a suit, that’s irrelevant to the fact that there are some…who could have and would have, if situations had permitted them to,” said Sotomayor. Ginsburg also noted that Louisiana didn’t bring up the standing issue until five years into litigation, meaning the providers couldn’t have found a patient to bring on to the case even if they had needed to. “And might you have, if you had a timely notice, just as insurance, joined a patient or two?” Ginsburg asked. Rikelman responded, “Yes, Your Honor. And, in fact, it would be profoundly unfair to allow the state to raise the objection for the first time five years into this litigation after it […] pursued the undue burden claim through multiple rounds of appeals.”

And finally, the argument that doctors who provide abortions don’t have a sufficiently close relationship with their patients to advocate on behalf of them is absurd. Obviously, like all other medical professionals, abortion providers care about the wellbeing of their patients — this isn’t something we should have to debate. To suggest otherwise furthers damaging, stigmatizing, and unfounded stereotypes that villainize abortion providers and cast aspersions on their motivations and professionalism.

If the Supreme Court overturns decades of precedent to rule that doctors can’t sue on behalf of their patients, it would have dire consequences for abortion access. States could continue to pass sham TRAP laws to shut down clinics or take even more direct approaches to block access, and the clinics and doctors affected wouldn’t have the legal right to challenge those restrictions.

Changes in the Court’s makeup since Whole Woman’s Health

Despite the WWH ruling just four years ago that struck down this kind of TRAP law, reproductive rights advocates are concerned about the outcome of June. Thanks to two appointments by the Trump administration — Justices Brett Kavanaugh and Neil Gorsuch — the Supreme Court now has the solid anti-choice majority it didn’t have for WWH. Kavanaugh replaced Justice Anthony Kennedy, who was by no means a great advocate for abortion rights but at least tended to reject extreme attempts to restrict access like the law at the center of June. With that moderate vote gone, Kavanaugh’s expected to join the other four conservatives on the Court to use the June decision to gut Roe.

However, some legal analysts have hypothesized that Chief Justice Roberts, the Court’s new center vote, could depart from the conservative block. Though Roberts didn’t vote with the majority in 2016 for WWH, his inclination to preserve Supreme Court precedent could lead him to side with the liberal justices in June.

Nothing but the Supreme Court’s composition has changed since WWH. TRAP laws pose the same threat to abortion access as they did in 2016. They still don’t have any medical justification. There’s no reason for the Court to overturn precedent except for the new Trump appointees’ desire to push an anti-choice agenda. It would be particularly despicable to attack people’s ability to make decisions about pregnancy and their reproductive healthcare access now, when we’re still in the middle of a global pandemic.

But regardless of how the Supreme Court decides June, it’s vital to keep fighting for abortion access at the state and local levels. Reproductive justice advocates across the country will continue working to defeat anti-choice policies in their state legislatures before they have to resort to court battles. At the national level, we should keep pushing to pass the Women’s Health Protection Act, a bill to protect the right to abortion in every state from both overt bans and deceptive TRAP laws. And we need to use our elections to hold anti-choice politicians accountable.

Safe, legal abortion is a right, and we’re going to continue defending it.

The political leader of the pro-choice movement in Maryland.

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