The Supreme Court Could Create a National Nightmare for Abortion Access

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Analysis My Body. My Rules.

The Supreme Court Could Create a National Nightmare for Abortion Access

Imani Gandy

States that have seen clinic shutdown laws struck down could reintroduce the measures if Supreme Court conservatives side with Louisiana in June Medical Services v. Russo.

For full coverage of June Medical Services v. Russo, check out our Special Report.

A U.S. Supreme Court ruling in favor of Louisiana in June Medical Services v. Russo could mean nightmare scenarios for abortion access not just in Louisiana, but in states across the country with Republican-held legislatures.

The Court will hear arguments Wednesday in June Medical Services, a case about the constitutionality of Louisiana Act 620, an admitting privileges law identical to the Texas law the Court struck down four years ago in Whole Woman’s Health v. Hellerstedt.

Even though the Court ruled in Whole Woman’s Health that there was no scientific evidence to support Texas’ claim that laws requiring abortion providers to maintain admitting privileges at a nearby hospital advance and protect the health of pregnant people, Louisiana lawmakers soldiered on. And because the Fifth Circuit went rogue and ignored the extensive lower court findings that the Louisiana law, like the Texas law, provide no medical benefit and that providers in Louisiana were finding it almost impossible to obtain admitting privileges, June Medical Services found itself in the curious position of petitioning the Supreme Court to strike down a law that the Court had already struck down.

Should conservative justices on the Court uphold Louisiana Act 620 by either limiting to Texas the principles set forth in Whole Woman’s Health or reversing Whole Woman’s Health outright—which is what congressional Republicans who filed an amicus brief have asked the Court to do—the repercussions will reverberate across the country. A decision in Louisiana’s favor would reduce what should be a broad ruling that admitting privileges laws are an undue burden—because, as the Court said in 2016, they have no health or safety benefit—to a state-by-state inquiry into whether a particular law in a particular state has any benefit and whether requiring physicians to comply with the law constitutes an undue burden.

And it will give anti-choice lawmakers across the United States the green light to resurrect admitting privileges laws that were either struck down by lower courts or abandoned in the wake of the 2016 Supreme Court decision. A ruling in favor of Louisiana would give anti-choice legislators an opportunity to make the case that in their state, admitting privileges laws provide medical benefits and the burdens on pregnant people are minimal.

But first, Louisiana needs to convince the court that the circumstances in Louisiana are different than those that prompted the Court to strike down Texas’ law four years ago.

In order to skirt the ruling in Whole Woman’s Health, attorneys for Louisiana are arguing that those factual findings are limited to Texas and have no bearing in Louisiana. Just because the Court found that HB 2 burdened abortion rights in Texas, they argue, doesn’t necessarily mean that Act 620 burdens abortion rights in Louisiana.

Sure, the laws are identical and, sure, lawmakers in Louisiana passed Act 620 because they saw how effective HB 2 was in closing clinics in Texas, but what does that matter? The abortion rights landscapes in Texas and Louisiana are different and, according to Louisiana’s attorneys, the impact of HB 2 in Texas says nothing about the impact of Act 620 in Louisiana. (In one respect, Louisiana’s attorneys are right: The abortion rights landscape in Louisiana is worse, given the lower court’s findings that Act 620 would close every clinic in Louisiana but one, leaving only one provider in the entire state.)

A ruling favorable to Louisiana would provide an opening for other states to make the case that admitting privileges laws don’t burden abortion rights in their state. They could argue, for example, that even though the Court found that providers in Texas were finding it nearly impossible to obtain admitting privileges—and therefore demanding that they do so unduly burdens abortion rights—that’s not necessarily the case in every state.

In the wake of Whole Woman’s Health, several states dropped lawsuits defending their admitting privileges laws. But if the Court sides with Louisiana in June Medical Services, it could breathe new life into those laws. In addition, states that have seen their laws struck down by courts could simply enact new laws.

Alabama and Tennessee 

Alabama and Tennessee were both in the process of litigating the constitutionality of their admitting privileges laws (HB 57 and HB 3808) when the Supreme Court issued its ruling in Whole Woman’s Health. Citing that ruling, both states promptly dropped their lawsuits, noting that their state laws were nearly identical to Texas’ and there was therefore no need to continue litigating them.

In court documents filed with the 11th Circuit Court in Planned Parenthood Southeast v. Bentley, attorneys for Alabama noted, “Because Alabama’s law is identical in all relevant respects to the law at issue in Whole Woman’s Health, there is now no good faith argument that the law is constitutional under controlling precedent.”

Tennessee stopped defending its admitting privileges law, in Adams & Boyle, P.C. et al. v. Slatery. Attorneys for Tennessee noted that Whole Woman’s Health had applied the undue burden standard to Texas’ admitting privileges law and found that it constituted an undue burden to access, and that because Tennessee’s law was so similar, it would be a waste of resources to continue litigating it.

Oklahoma 

In 2014, Oklahoma’s Republican-held legislature passed an admitting privileges law that was challenged in Burns v. Cline. The Oklahoma Supreme Court struck down the law, rejecting argument that “the impetus for this legislation was to advance and protect women’s health,” noting that “[a]s in Hellerstedt, we reject defendants’ argument and find that SB 1848 places a substantial obstacle in the path of women seeking a lawful abortion. We further find this legislation causes a significant reduction in abortion providers, creating an onerous burden to women of child-bearing age.”

Mississippi

Mississippi’s admitting privileges law, HB 1390—which was enacted in 2012 and which the Fifth Circuit struck down in Jackson Women’s Health Organization v. Currier—could be resurrected should the Supreme Court decide that a state-by-state inquiry into whether admitting privileges are an undue burden is required.

Unlike in Whole Woman’s Health, where a three-judge panel of the Fifth Circuit upheld the Texas admitting privileges law (before the Supreme Court struck it down), a three-judge panel of the Fifth Circuit struck down Mississippi’s law in part because upholding the law would have shuttered Mississippi’s last remaining abortion clinic, unlike in Texas where a handful of clinics remained in the wake of HB 2’s passage. (Mississippi finally gave up defending the law in 2017. Attorneys for the state told the court that they could not “identify any meaningful distinction between the Texas admitting privileges law struck down in Hellerstedt and the admitting privileges requirement of HB 1390.”)

Here’s where it gets alarming: The judges conceded that if it were permitted to take into account the number of abortion clinics available in neighboring states, their calculus might have changed. However, they were constrained by a 1938 Supreme Court decision, Gaines v. Canada, which held states can’t discriminate in the distribution of state services by relying on the availability of similar services in nearby states. “Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights, a principle that obviously has trenchant relevance here,” the court wrote.

But given that Supreme Court conservatives don’t seem to value precedent, should the Court be compelled to revisit Gaines, states like Mississippi will no longer have to ensure that at least one clinic remains in their state if they can rely on neighboring states to provide abortion care that Mississippians can access.

Then the question becomes: How far does a pregnant person have to travel before it is considered an undue burden? If a pregnant person cannot access abortion in a neighboring state, what about forcing them to travel two states over? Three states? What if laws shuttering all clinics in one state don’t pose an undue burden as along as at least one state in the country offers abortion care?

These are questions that could become critical if the Court sides with Louisiana and declares that whether or not admitting privileges laws are an undue burden depends on the circumstances in a given state.

Texas and Wisconsin 

A ruling that the constitutionality of these laws is a state-by-state inquiry that involves examining whether admitting privileges laws actually provide a medical benefit could even give states that have seen their laws struck down another bite at the apple.

Texas, the state at the center of the 2016 decision that Louisiana seeks to undermine, and Wisconsin—which saw its admitting privileges law struck down by the Seventh Circuit in 2013 in a case called Planned Parenthood of Wisconsin v. Hollen—could feasibly introduce new admitting privileges laws and learn from Texas’ mistakes in Whole Woman’s Health. Lawmakers in both states could shore up evidence that these laws promote health and safety and that they don’t pose an undue burden. (One way they could do this is by keeping their mouths shut about how gleeful they are that the laws are closing clinics.)

It’s unclear what circumstances in Texas or Wisconsin could have changed so that the admitting privileges laws no longer unduly burden abortion rights. But Republicans have taken over the courts, and the newly Trumpified federal judiciary may be the only change necessary for states like Texas and Wisconsin to try to pass another admitting privileges law, especially if courts are willing to allow state lawmakers to pass the abortion care buck to a neighboring state.

What is clear is that admitting privileges laws provide no medical benefit. They are a solution looking for a problem.

First, they are predicated on a “country doctor” style of medical care that existed at a time when people lived in small communities and had one general practitioner who handled all of their health-care needs. That kind of care doesn’t exist anymore.

Second, admitting privileges are hard to come by due to the stigma that abortion providers face (in part because of unfounded claims like those Louisiana has made before the Court that abortion providers don’t have their patients’ best interest at heart.) In Whole Woman’s Health, the Supreme Court acknowledged that the admitting privilege requirement would force clinics in Texas to shut down because they would be “unable to find local physicians in those communities with privileges who are willing to provide abortions due to the size of the communities and the hostility that abortion providers face.” Hospitals aren’t keen on granting admitting privileges to abortion providers due to that hostility, and in some cases due to the Catholic directives under which many hospitals operate.

Third, hospitals are profit-driven institutions that rely on hospital admissions to operate. In Whole Woman’s Health, the Court called it an “undisputed general fact” that “hospitals often condition admitting privileges on reaching a certain number of admissions per year.” And because abortion is so safe, abortion providers cannot guarantee a minimum number of hospital admissions.

That’s the great irony. Louisiana lawmakers insist admitting privileges laws are necessary to promote the health and safety of pregnant people. But abortion is so safe that many hospitals won’t grant providers admitting privileges.

It’s like ten thousand spoons when all you need is an abortion.