What's At Stake In SCOTUS' Abortion Fight, From A Woman Who Fought (& Won) Her Case
The Supreme Court is getting ready to hear its first major abortion case under the Trump administration — and it's a little familiar. On March 4, the court will hear arguments in June Medical Services LLC v. Russo, a challenge to a 2014 Louisiana law that requires abortion providers to have admitting privileges at nearby hospitals. The case is being litigated by reproductive rights advocacy group the Center for Reproductive Rights (CRR). However, this requirement was already raised, and ruled on, in the 2016 case Whole Woman's Health v. Hellerstedt. So, why is the issue back in court, and what's at stake? Let the woman who already won a case on this issue explain it. Amy Hagstrom Miller says the Supreme Court's 2020 abortion case will lay out the future of abortion rights in the United States.
"We’ve seen thousands of attacks on Roe [v. Wade, the 1973 case that nationalized the right to abortion] in the last 47 years," says Miller, the founder and CEO of Whole Woman's Health and the lead plaintiff in the 2016 case, which was also litigated by CRR. “This one is one of the first that’s really coming after the Whole Woman’s Health standard very blatantly."
If a clinic can’t stay open and we can’t provide the service ... the right [to an abortion] is just an abstract.
Traditionally, once the court has ruled on something, the precedent keeps the issue from being re-litigated — which is why it's a little unusual that June Medical Services has made its way to the Supreme Court at all. The case revolves around a 2014 Louisiana state law requiring abortion providers to have hospital admitting privileges, meaning the right to admit and treat their patients in local hospitals. The law would have closed all but one abortion clinic in the state. But in Miller's 2016 victory, the Supreme Court struck down nearly identical requirements in Texas requiring abortion providers to have hospital admitting privileges, ruling that the possible benefits of the law didn't outweigh patients' right to access abortion without an "undue" burden.
“If a clinic can’t stay open and we can’t provide the service, it’s actually not available to people in the community, so the right [to an abortion] is just an abstract kind of thing on paper," Miller says. "They’ve actually effectively made it meaningless in very large parts of the country."
There are two major possible outcomes in the June Medical Services case. The first possibility is that the Supreme Court will uphold its own precedent by ruling that Louisiana's law is an undue burden on abortion access, and strike down the law. The second possibility — which is increasingly likely, with the court's new conservative majority — is the Supreme Court will go against its previous ruling and uphold the Louisiana law, which could threaten abortion access across the country.
Allowing the law to stand would create a new legal precedent around the country; one that could make it harder for clinics to stay open, and leave patients without a provider who can help them. The admitting privileges requirement has been called an example of a TRAP law, which stands for Targeted Restrictions on Abortion Providers. According to Planned Parenthood, TRAP laws are "costly, severe, and medically unnecessary requirements imposed on abortion providers and women's health centers." The Guttmacher Institute, a reproductive rights think tank, notes that complying with TRAP laws can often be prohibitively expensive for abortion providers, forcing them to shut down their clinics. When an already limited number of clinics start to close their doors, pregnant people must travel even greater distances to access an abortion, which means they incur additional lodging and transportation costs. Advocates for the laws, however, argue that they're part of ensuring that patients get the best care. In a July 2019 brief in June Medical Services, the state of Louisiana claimed "[t]he doctors who do perform abortions in Louisiana have a long history of professional discipline" and called the credentialing requirements for abortion providers "poor."
Those justices have to think about all of the ripple effects.
But according to Miller, the admitting privileges requirement is "just a restriction that they’re putting in place with the strategy of shuttering clinics," and isn't really about patient safety. Reproductive rights advocates have pointed out that in the extremely rare event of abortion complications requiring hospitalization, a patient can be admitted via a hospital emergency room without admitting privileges. "There isn’t a problem that this kind of law is solving," Miller says. "Because we don’t bring business to the hospital, we hardly ever have a patient that needs to go to the hospital, because abortion is so safe." Miller adds states like Louisiana and Texas have argued in support of requiring admitting privileges supposedly to protect patient health, when in reality, "there is no problem with the safety of abortion."
"It’s not actually advancing women’s health and safety because now, not only do women not have access to a very safe reproductive health care procedure in their community, they’re traveling farther. And driving is actually more risky than abortion," Miller says.
But admitting privilege requirements are not the only restriction Louisiana wants to impose. Traditionally, lawsuits fighting for abortion access have been brought by providers claiming "third-party standing" on behalf of their patients, as a way to both honor patient privacy and get around the natural time limits of combining a multi-year court case and a nine-month pregnancy. But in June Medical Services, Louisiana argues against third-party standing, claiming that providers don't have their patients' best interests at heart and that providers bring the cases for financial benefit. The state also argues that providers have a conflict of interest in these kinds of cases — a December 2019 brief from Louisiana officials argues "[p]laintiffs’ desire to operate their clinics largely free from government oversight certainly poses at least a potential conflict with the paramount health and safety interests of their patients."
According to Miller, this argument could be devastating for reproductive rights advocacy, as it shifts the burden of a legal battle to pregnant people seeking abortion care. She rattles off the hurdles a patient would have to deal with. "The stigma that [a pregnant person] would have to undergo, the security concerns that they would have, that their confidentiality wouldn’t be protected — you have to go through depositions, you have to go through many things in the course of a lawsuit," Miller says. "It’s ridiculous to think that we should ask a pregnant person to go through that just in order to have an abortion."
After all, Miller adds, why would abortion providers engage in these legal battles if they didn't have a "strong commitment" to justice and human rights? "Abortion is not a profitable business," Miller says. "The myth of the abortion provider as profiteer is what [anti-abortion advocates are] trying to perpetuate with a comment like that, and it couldn’t be further from the truth."
With the admitting privileges requirement and the petition against third-party standing, June Medical Services could have a dramatic effect on abortion access both in Louisiana and across the country. Previous cases like 1992's Planned Parenthood v. Casey and Whole Woman's Health have already set precedents for the right to access abortion, but now, June Medical Services is positioned to either uphold those precedents or do away with them.
"If Whole Woman’s Health is narrowed in this decision, what other kinds of cases might come before [the court] really quickly after that?" Miller says. "Those justices have to think about all of the ripple effects that might happen."
