Fresh off of their June 15 ruling protecting the LGBT community from discrimination under the Civil Rights Act, the Supreme Court is gearing up to make a decision on one of the most controversial issues in its docket this summer: The government’s role in regulating women’s reproductive rights, and how new legislation could effectively eliminate abortion access for one state for the first time since Roe v. Wade.
The Trump administration-era Supreme Court—which heard arguments on March 4 for Louisiana’s June Medical Services v. Russo, but delayed its ruling in light of the coronavirus pandemic—looks different than when the same court ruled in a similar case four years prior related to a Texas law.
The abortion rights case, which was the first since the 2018 retirement of Justice Anthony Kennedy and President Trump’s appointment of Justice Brett Kavanaugh, again seeks to decide whether a law that requires abortion providers to have admitting privileges with a nearby hospital in cases of emergency puts an “undue burden” on abortion access. While Justice Kavanaugh has avoided sharing his personal opinion on Roe v. Wade, critics noted the judge previously dissented from a court’s decision to allow a 17-year-old pregnant undocumented immigrant to receive an abortion at her request, seeming to suggest he may take a more conservative stance on the matter than his predecessor.
In a concerning twist, the Louisiana case also seeks to go one step further by potentially changing 40 years of precedence. While the Supreme Court has allowed doctors and clinics to fight abortion laws on behalf of their patients for over four decades, Louisiana is now arguing that they should not have the right to do so, according to NPR. If the Supreme Court rules in favor of the defendant, this could change how abortion rights cases are brought to court in the future.
From the ruling’s potential ramifications for vulnerable communities to the future of Roe v. Wade, here’s what to know about Louisiana’s abortion case.
Louisiana’s Unsafe Abortion Protection Act, which was enacted in 2014 (but is not currently in effect), mirrors the Texas state law that led to the 2016 case Whole Woman’s Health v. Hellerstedt.
Louisiana’s law requires abortion doctors to have admitting privileges, which are an agreement between a doctor and a hospital to allow a patient to go to that hospital if they need urgent care. However, most hospitals will not allow doctors to have admitting privileges unless they provide a steady stream of patients to the hospital, as NPR noted. Considering that abortions have a complication rate of less than a quarter of 1 percent nationwide, this makes it unlikely that hospitals will grant these privileges to abortion doctors.
In addition to providing significant barriers to abortion access, a federal district court judge who originally heard the case argued that the law was simply unnecessary, per NPR. Not only has research found that modern abortion procedures in the U.S. are very safe, but that requiring providers to have hospital privileges doesn’t guarantee a patient’s safety. While hearing the case, Justice Elena Kagan cited the Hope Clinic, which has served approximately 70,000 women during the 23 years it’s been open in Shreveport, Louisiana, which has only ever had to transfer four patients to a hospital. Louisiana’s solicitor general, Elizabeth Murrill, said that the law is supposed to keep those who want an abortion safe, as per the Washington Post.
The plaintiff argued that instead of keeping women safer, the extraordinary barriers to get admitting privileges could potentially eliminate all three of the institutions that currently serve the thousands of women who seek abortions in the state every year.
Of the doctors who currently perform abortions in the state, only two have admitting privileges—and even this number could shrink to zero. According to CBS News, one has said he plans to retire if this is made a requirement, while the second doctor hasn’t provided abortions in a year.
In short, the passage of this law could make Louisiana the only state to not provide abortion access to its residents.
This law would also disproportionately impact women from low-income communities and minority communities.
Not only are women seeking abortions more likely to be living in poverty, but research has found that better abortion access has a direct correlation to increased educational and economic opportunities for these individuals, especially for Black women.
Steffani Bangel, the executive director of the New Orleans Abortion Fund, said that Louisiana is already an “abortion desert” and the three clinics that are currently in operation are already at capacity attempting to provide abortions for the 8,000 to 10,0000 patients who walk through their doors every year.
“Three clinics right now is scarcely enough for the people who currently need that care,” Bangel said. “Already, many people have to drive hundreds of miles, miss work, and reserve hotels just to access this healthcare that is ostensibly our right. If the clinics close—and they will if this is passed—people are going to have to leave the state and all those other costs outside of the abortion will rise even more, and will exacerbate the inequities of who’s able to access care and who’s not.”
Not only is Louisiana one of the poorest states in the country, Bangel said it’s also been very hard hit by the COVID-19 pandemic due to the fact that its main industries—oil and gas, hospitality, and tourism—are currently at a standstill. Bangel also noted that it’s one of the few states that still has a $7.25 minimum wage.
“Folks who are economically disenfranchised, people who have been pushed out of jobs or into low wage work—those are the people who are most impacted by laws that restrict access to abortion and other healthcare,” she said. “The people in my community are already suffering on many levels, and they’re being disenfranchised and marginalized on many scales. And to take away this access to bodily autonomy and basic healthcare on top of everything just feels like an insult.”
The Louisiana ruling could have wider implications for the 1973 ruling, Roe v. Wade, which granted women the right to an abortion.
In the 2016 Texas case, the Supreme Court ruled that this requirement provided a major obstacle for women looking to access abortion. However, the court’s decision to stray from precedent now could signal a shift towards chipping away at Roe v. Wade and potentially abolishing it altogether in the future.
While admitting privilege laws seem minor at first glance, the court’s support of “TRAP” laws could lead to individual states taking matters into their own hands and defying Roe v. Wade by adding regulations that effectively close down clinics.
Andrea Miller, the president of the National Institute of Reproductive Health, called admitting privileges and other TRAP laws part of a much broader effort to roll back access abortion services at a state level.
“They’re particularly nefarious, because they’re couched in language that sounds like they’re about protecting and advancing women’s health, when in fact they undermine access to reproductive healthcare, and in that process, undermine women’s health and wellbeing,” she said. “We have seen states all around the country putting up barrier after barrier to try to eliminate access to abortion care, even if the hollow right to abortion under Roe v. Wade is still there.”
Both the American Medical Association and American College of Obstetricians and Gynecologists have agreed with the assessment that these kinds of laws don’t in fact make women safer, and instead interfere with a woman’s right to access an abortion. The AMA and ACOG, as well as other groups, have said that they oppose Louisiana’s law, according to NPR.
Establishing a precedent legally prohibiting doctors and clinics from advocating for their patients’ right to a safe abortion in court could change the landscape of abortion fight in the future.
“While this case can feel very specific to one state, it has implications for people across the country. The reason that we are so frustrated to talk about this case is because [admitting privileges] was settled four years ago by the same Supreme Court,” Bangel said, referring to the Texas ruling.
Although a potential Supreme Court ruling to uphold this law won’t directly negate or chip away at Roe v. Wade, she believes it’ll empower anti-abortion politicians to attempt to reverse pro-choice policies around the country.
“If they see you can flip precedence after only four years in an identical case, where the only difference between the Texas and Louisiana law is geography, they’re going to take that message to heart and they will continue to try to attack our rights,” Bangel said.
Miller emphasized that it’s important to keep up pro-choice momentum and vote for politicians who protect women’s reproductive choices, citing the record number of states who enacted laws protecting abortion access or removed barriers to getting a safe abortion in 2019.
“Honestly, win, lose, or draw, the reality is that abortion access really begins and ends at the state level,” she said. She suggests paying attention to local and state elections as well as national ones. “We need to shore up protections so it’s not just about the legal rights, but abortion services are actually available, accessible, and affordable to anyone who needs them,” she said.
Only time will tell when the Supreme Court chooses to announce its ruling on the Louisiana case, but it looks like the ball is rolling on some of its most highly-anticipated rulings this summer.