I would say “how has it been 6 months since I posted here?!” but then again, I know that happened – the last semester of my second year of medical school and Step 1 happened. So here I am, 6 months later, getting back on the horse. I’ve still been posting over on Instagram, but I’m also just getting back to posting there after a break for my dedicated Step 1 study period.
A while back, I posted on my Instagram stories about oral arguments at the Supreme Court for June Medical Services v. Russo and asked if folks wanted to learn more about the role of the judiciary in abortion care. After hearing a resounding yes, I’m finally getting around to it. This was initially intended to be a post on IG, but the judicial system and processes that go with it are *complicated* to say the least and resulted in a post that was far too long. So I’m going to share here instead.
At first I thought I’d work my way forward from Roe v. Wade to today, but it seems more relevant to start in the present and look back to see how we got here. This post is going to look at the specifics of June Medical (and I’ll update it as soon as there is a decision!) and then forthcoming posts will look at Roe, Casey, Whole Woman’s Health (in more detail than presented here), and others.
So let’s head down to the land of beignets and jambalaya and get to it.
The Supreme Court is due to hand down a decision any day now in June Medical Services. At issue in the case is this: does the decision of the U.S. Court of Appeals for the 5th Circuit’s to uphold Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflict with the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt.
If you can remember all the way back to 2016, the Supreme Court held in Whole Woman’s Health that two provisions in a Texas law – one requiring physicians who perform abortions to have admitting privileges at a nearby hospital and another requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center – place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution.
So why, might you ask, is June Medical even being considered by the Court, since they just ruled on the same issue four years ago? Well, it’s pretty simple: the ideological makeup of the Court in relation to the issue of abortion has shifted with the retirement of Justice Kennedy and appointment of Justices Gorsuch and Kavanaugh. Opponents of abortion now think they have a shot at overturning Whole Woman’s Health on their way to overturning Roe v. Wade.
The Louisiana law at issue in this case is closely modeled after the unconstitutional Texas law. The district court in Louisiana found that it “provides no benefits to women and is an inapt remedy for a problem that does not exist.” This finding is supported in an amicus brief filed by the American Medical Association and American College of Obstetricians and Gynecologists, among many other medical and health societies.
According to the Guttmacher Institute, in 2017, 94% of counties in Louisiana had no clinics that provided abortion care and 72% of women in Louisiana lived in those counties. The effects of this law (which was passed in 2014 and has never been implemented due to ongoing litigation) would be even more devastating for people seeking abortion care in Louisiana, to the tune of a single doctor left to provide abortion care for the entire state. And finding a provider is just the first part of the process. Louisiana law also requires state-directed counseling that discourages the patient from having an abortion and mandates a 24-hour waiting period between that counseling visit and the abortion itself. That makes an abortion require multiple, potentially hours long, car rides, or enough money to stay overnight in a hotel, plus the potential need for childcare, time off from work, etc. This amounts to a de facto ban on abortion in Louisiana (also the case in many other states) for those with limited financial means. And if that weren’t enough, the state also requires that an ultrasound be performed and the findings described to the patient 24 hours before an abortion. This is cruel emotional punishment for women making a personal health decision.
Louisiana argued that it shouldn’t matter whether only one provider will remain to perform abortions in the state, because doctors could have tried harder to get admitting privileges. But as an analysis from SCOTUS blog points out, the medical providers who brought this case tried unsuccessfully for over a year to obtain privileges.
Why are admitting privileges not a compelling argument to protect the health of women? First of all, compliations from abortions are exceedingly rare. A study from UCSF found only 126 major complications out of 54,911 abortions. Second, there is little incentive for hospitals to extend abortion providers privileges, as they rarely send patients to the hospital. While providers with admitting privileges are not paid by the hospital, they are often covered under a hospitals medical malpractice insurance. Thus, hospitals want to extend privileges to physicians who will bring in revenue in the form of patients, which will then contribute to the cost of paying insurance. Hospitals will also turn down abortion providers if the hospital is affiliated with a religious tradition that is opposed to abortion. Truly, the real threat to the health of women is not being able to access abortion due to restrictions like this one in Louisiana. States with more abortion restrictions have higher rates of maternal and infant mortality, can encourage women to seek out unsafe abortions, and impact a range of maternal and infant health outcomes.
Louisiana went on to argue that as long as some people in the state are able to access abortion, the state should be free to pass a law making it as difficult as it would like for most people in the state to access that service and does not have to prove that these burdens further a legitimate state interest. This Supreme Court has already found in Whole Woman’s Health that admitting-privileges requirements don’t further any valid state interest. It will be interesting to see how this is reconciled in the June Medical decision.
Weighing the laws’ burdens (only one abortion provider left in the entire state) with it’s benefits (none), it is certain that the burdens are “undue,” a test created in the case Planned Parenthood of Southeastern Pennsylvania v. Casey.
If the Court upholds the Louisiana law, it essentially makes abortion a constitutional right in name only. If you cannot access it, how can you exercise it? These nine Justices have immense influence over our daily lives, which is partly related to the lack of governing happening in Congress. We just have to look to the recent decision that found employment discrimination against LGBTQ individuals to be unconstitutional. As Justice Alito wrote in his dissent, Congress could pass clarifying language and amend the Civil Rights Act to ensure that this discrimination was unlawful. But they did not. And so the task fell to the Court, which ruled that LGBTQ employees are protected under Title VII. This has been playing out over and over again in recent years (…decades) as the partisanship in Congress makes the act of governing a serious challenge.
So let me end with a reminder – when you vote for a Senator to represent your state, you are also voting for the men and women who serve on the Supreme Court and all of the federal courts around the country. The president might nominate a judge or justice, but the Senate must approve. If you don’t like how your Senators have voted on judicial nominations (and there have been some truly atrocious votes to approve judges that even the American Bar Association declines to endorse), be sure you are registered to vote. That is a constitutional right we have that we are free to exercise every time an election comes around.
For those interest in more on June Medical and the role of the courts as it relates to abortion, here are my recommendations for further learning:
- Abortion Laws, Last Week Tonight with John Oliver
- Roe v. Kavanaugh, Amicus Podcast with Dahlia Lithwick
- An Abortion Education, Full Frontal with Samantha Bee
- 13 Hours to Midnight: The Wendy Davis abortion fight, 5 years later
Image from NPR.