One Supreme Court Decision Could Shut Down Abortion Clinics in 15 States

States with anti-choice politicians in power could impose unnecessary admitting privilege requirements with little or no resistance.

[Photo: Supreme Court Justice Brett Kavanaugh and US Supreme Court Justice Neil Gorsuch look on during an hearing.]
The conservative takeover of the federal courts means there might not be legal recourse against laws designed to obliterate abortion access. MANDEL NGAN/AFP via Getty Images

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The U.S. Supreme Court’s upcoming decision in June Medical Services v. Russo could give anti-choice politicians in 15 states the green light to drastically reduce abortion access.

If the conservative justices ignore precedent to rule in favor of Louisiana’s admitting privileges requirement, a wave of laws designed to shutter abortion clinics under the guise of patient safety could sweep large swaths of the South and Midwest, according to an analysis released Monday by the Guttmacher Institute. The Court’s ruling will come just four years after justices struck down parts of a similar anti-choice law in Texas that shuttered nearly half of the state’s abortion providers.

Guttmacher estimates that the fallout of the abortion rights case could affect more than 19 million women of reproductive age across these 15 states: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Michigan, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

These states could follow Louisiana’s lead by forcing abortion providers to secure admitting privileges at nearby hospitals, a kind of targeted regulation of abortion providers (TRAP) law. Many abortion providers are unable to comply with the medically unnecessary requirement, since hospitals across the United States refuse because of their religious affiliation or out of a desire to avoid political attacks from anti-choice activists.

Elizabeth Nash, interim associate director of state issues for Guttmacher, said anti-choice lawmakers would “feel emboldened” by a Supreme Court ruling in favor of Louisiana.

“Just look to last month—at the first opportunity, they weaponized the COVID-19 pandemic and tried to shut down abortion access in nearly a dozen states,” Nash said in a statement. “We know the anti-abortion movement takes any opportunity limit or ban abortion—the question that remains is whether the Supreme Court will follow precedent or follow politics.”

Nine states with anti-choice governors and anti-choice legislative majorities could pass admitting privileges laws with little or no resistance. Then there’s Michigan, where anti-choice activists could use a citizen-initiated process to enact an admitting privileges law despite the opposition of Gov. Gretchen Whitmer (D), an abortion rights supporter.

Guttmacher identified another five states that could easily revive admitting privileges laws that have been blocked by the courts.

That list includes Mississippi, where lawmakers passed clinic shutdown regulations in 2012, threatening to shutter the state’s last abortion clinic. While the law never took effect, Mississippi’s only abortion provider had tried and failed to satisfy the admitting privileges regulation before it was held up in the courts. “At least one hospital refused to even provide an application to the provider despite repeated attempts and another hospital would not review a completed application,” according to Guttmacher.

Alabama’s Republican governor could similarly push through a 2013 admitting privileges law that was blocked by a federal judge. In an order blocking the anti-choice law from taking effect, a court determined that none of the abortion providers in three Alabama cities “would be able to obtain privileges and no physician with privileges would start providing abortion care.” That would have left the state with two clinics.

The devastating effects of admitting privileges requirements were evident in Tennessee from July 2012 to April 2017, when the law was in effect. Two clinics in the state closed during that five-year span, while “the remaining seven clinics’ capacity was reduced as existing providers were not able to obtain privileges and clinics had difficulties recruiting new providers,” according to Guttmacher.

Patients in Tennessee were often forced to wait two or three weeks before receiving abortion care during that time. State officials stopped enforcing the law following the Supreme Court’s 2016 ruling against portions of the Texas TRAP law.

A blitz of admitting privileges laws could force abortion patients to travel out of state, or even to a different region.

If neighboring states pass admitting privileges laws, “patients in entire regions of the country may be forced either to travel long distances to obtain abortion services or be left without access to care,” according to the Guttmacher analysis.

The spillover effect would be felt in nearby states where abortion providers would have to “figure out how to care for an influx of patients” from regions where abortion access had been gutted.

Admitting privileges could exacerbate travel time and distance in mostly rural states, such as South Dakota, where the average one-way drive to a clinic is already 92 miles. North Dakota, one of two states with an admitting privileges law in effect, has an average one-way driving distance of 157 miles to a clinic.

But in some states that once passed admitting privileges requirements, Democrats have since broken Republicans’ grip on power. Take Kansas, which passed a clinic shutdown law that was blocked by a federal judge in 2011. The legislature is still controlled by Republicans, but Gov. Laura Kelly (D) isn’t expected to revive the existing restriction.

The same is true in Wisconsin, where Gov. Tony Evers (D) is unlikely to seek to enforce the inactive admitting privileges law on the books.

Heather Shumaker, senior counsel for reproductive rights and health at the National Women’s Law Center, said clinic shutdown laws should be seen as part of a wider coordinated attack on abortion access.

“[Admitting privileges regulations] are based on a fundamental misunderstanding of how abortion care works and these laws exploit that misunderstanding,” Shumaker told Rewire.News.

Abortion rights opponents “frame it as protecting women’s health care and we know it does just the opposite,” she said, adding that the conservative takeover of the federal courts means there might not be legal recourse against laws designed to obliterate access. “It does nothing to further the safety of an already safe procedure.”