Today, the Supreme Court of the United States (SCOTUS) will begin hearing oral arguments on a consolidated case that could change the trajectory of abortion rights and access in this country. June Medical Services LLC v. Russo, as the case is called, makes two challenges to existing laws or interpretations of law. The first challenge is against Louisiana’s restrictive abortion law (Act 620), which prevents abortion providers from offering care unless they attain admitting privileges at a hospital within thirty miles of the clinic in which they work. The second challenge involves revisiting the question of whether or not health care providers can challenge abortion restrictions on behalf of their patients, an act known as third-party standing. In this commentary, I break down what all of this means and what the implications are for people in need of abortion care.
Here are six things to know about June Medical Services LLC v. Russo:
- Requiring admitting privileges for abortion providers is medically unnecessary. Requiring admitting privileges means that abortion providers must enter into agreements with local hospitals to admit patients before they can provide abortion care. This requirement is part of a draconian set of stipulations placed on certain abortion providers called targeted regulation of abortion provider laws, also referred to as TRAP laws. While touted as measures to help ensure safety, these laws are typically motivated by anti-abortion politicians who want to make abortion care inaccessible. According to the Guttmacher Institute, twenty-four states have laws or policies that regulate abortion providers beyond what is necessary to ensure safety. Two of those states, Missouri and North Dakota, currently require admitting privileges. Abortion is one of the safest medical procedures. Very few patients need treatment within a hospital or emergency room following an abortion.
- In 2016, SCOTUS heard another case regarding the requirement for admitting privileges for abortion providers: Whole Women’s Health v. Hellerstedt. There is already precedent, and from the Supreme Court no less, that determined admitting privilege requirements on abortion providers as unconstitutional. The case that made that determination, Whole Women’s Health v. Hellerstedt, was heard by SCOTUS in 2016, and involved an admitting privileges requirement in Texas. While it was eventually struck down, initial implementation of the law caused about half of Texas’s abortion clinics to shutter.The two cases are nearly identical, and typically, the Court’s precedent would guide the questions currently at issue. Instead, the Court agreed to hear a case with legal issues that are substantially the same just four years later. The only thing that has changed, in this case, is the fact that two new conservative justices sit on the Court.
- Long-standing precedent has protected third-party standing too. June Medical Services v. Russo also contests disallowal of third-party standing, based on a cross-petition from Louisiana. SCOTUS has long affirmed that health care providers may defend the constitutional right of their patients to access abortion since 1973. Oftentimes, abortion providers have the resources to challenge restrictive abortion laws when patients do not. TRAP laws directly impact the ability of abortion providers to offer timely health care to patients in need. According to the Center for Reproductive Rights, nearly all abortion cases are brought by physicians and women’s health clinics, so restricting these actions would severely obstruct abortion cases from being brought at all.
- President Trump’s appointment of anti-abortion conservative justices to SCOTUS has dangerous implications for the future of abortion rights and access. The appointment of conservative justices in recent years to SCOTUS has tipped the scales on abortion rights. As it stands currently, there are four liberal Supreme Court justices and five conservative Supreme Court justices. President Trump has appointed two conservatives since he was elected—Neil Gorsuch and Brett Kavanaugh. While both Gorsuch and Kavanaugh agreed to affirm precedent on abortion rights during their confirmation hearings before the U.S. Senate, there is no guarantee that they will do so, given their prior records and statements on abortion and other reproductive health issues. For example, while serving as a judge on the U.S. District Court for Washington, D.C., Brett Kavanaugh voted to block abortion care for an unaccompanied immigrant teen who had been detained in Texas when entering the United States. This was after the teen had secured the right to consent to her own abortion through state bypass in a lower court, and had attained the funds needed to pay for her abortion. Neil Gorsuch has yet rule on a case specific to abortion, yet has taken up cases that dealt with reproductive health and rights tangentially. He sided with plaintiffs in two cases involving religious objections to the Affordable Care Act’s contraceptive mandate. In his written opinions, Gorsuch affirmed his stance that complying with the mandate was a violation of religious beliefs. It should also be noted that in the backdrop of these appointments is Donald Trump’s promise to nominate Supreme Court justices who would vote to overturn Roe v. Wade while campaigning for president in 2016.Although June Medical LLC v. Russo would not technically overturn the constitutional right to abortion (as affirmed in 1973 by Roe v. Wade), upholding the admitting privileges requirement for abortion providers could set a dangerous precedent, one leading to an increase in the implementation of TRAP laws in states across the country. Such an expansion of TRAP laws would impose an undue burden on abortion access for millions of people.
- Abortion is already hard to access in this country. Upholding this abortion restriction could make matters even worse. If the Louisiana law is upheld, it will cause two of three abortion clinics in the state to shutter. This would drastically limit abortion access to one provider, in a state where approximately 1 million women of reproductive age reside. The fact that Louisiana is one of the most dangerous states for reproductive rights in this country is an understatement. According to the Center for Reproductive Rights, Louisiana imposes more restrictions on abortion than almost any other state. These restrictions cause women to take desperate measures to get the health care they need, and their violence falls hardest on people of color, low-income people, and those living in hard-to-reach rural and urban areas.
- The women’s rights movement is a force to be reckoned with. Protecting abortion rights is at the top of its agenda. The women’s rights movement has made clear that protecting abortion rights is a top priority. While TRAP laws do not necessarily make getting an abortion illegal, they serve as mechanisms for chipping away at the right to abortion by making it inaccessible. This is plain to see in how TRAP laws delay timely abortion care, cause people to travel long distances to get an abortion, and increase the out-of-pocket cost for care for people without an insurance plan that covers abortion. Advocacy groups and social justice activists have been on the front lines working to make sure SCOTUS hears these messages loud and clear. In fact, many abortion rights activists and allies will be rallying on the front steps of SCOTUS as oral arguments for June Medical Services LLC v. Russo begin today. A few of the groups leading the charge include the Center for Reproductive Rights, In Our Own Voice: Black Women’s Reproductive Justice Agenda, and If/When/How: Lawyering for Reproductive Justice.
Admitting privilege requirements for abortion providers have already been deemed unconstitutional. Third-party standing has been upheld for decades. And while anti-abortion politicians hide behind the veil of helping to ensure patient safety, they continue to work tirelessly to make safe abortion out of reach for millions of people in this country. TRAP laws are draconian abortion restrictions that cause clinics to close, make abortion inaccessible, and drive people to desperate measures to get the health care they need. With the scales tipped to favor sabotage of Roe v. Wade through the appointment of anti-abortion conservative justices to SCOTUS, reproductive rights and access hangs in the balance.