Recently, the Supreme Court agreed to hear a challenge to a Louisiana law that could leave the state with only one doctor in a single clinic authorized to provide abortions.
The law in question has been on hold since 2014. It specifically requires that abortion providers have admitting privileges which allow them to treat patients at a local hospital within thirty miles of the clinic where the procedure was done. Because admitting privileges can be hard to obtain, as many as two of the three remaining clinics in Louisiana could be shut down.
The Supreme Court struck down a similar Texas law in 2016, after the Louisiana law was enacted. In addition to having the same admitting privileges requirement, the Texas law also required abortion clinics to upgrade their facilities to hospital-level quality by meeting the same standards as ambulatory surgical centers. While that law was in effect, roughly half of the state's clinics closed. From the scarce data available, researchers estimated a 13 percent decline in abortions, but a concerning uptick in the rate of late second-trimester abortions. Furthermore, women had to travel farther and therefore faced higher costs in the form of transportation, hotels, and missed workdays to get an abortion. Wait times at some clinics also increased.
The court case, Whole Woman's Health v. Hellerstedt, was centered on the 1992 ruling Planned Parenthood v. Casey. In a 5-4 decision, the Supreme Court ruled that states cannot impose an undue burden on a woman’s right to abortion while the fetus is still unviable, including "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion." Writing for the majority, Justice Stephen Breyer noted that abortion care without such a law was "extremely safe with particularly low rates of serious complications" and that the implementation of such a law created an undue burden because it shut down many of the clinics in the state, resulting in "fewer doctors, longer waiting times and increased crowding."
As the Center for Reproductive Rights has pointed out, the Louisiana law and the Texas law are identical. So, it follows that the Supreme Court should overturn the 5th Circuit's decision and strike down the law. However, circumstances will be radically different for this term's case, June Medical Services v. Gee. In the 2016 case that struck down the law, Justices Anthony Kennedy, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg joined Breyer to strike down the law, while Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented. Since then, the late Antonin Scalia's seat was filled by Neil Gorsuch, and Brett Kavanaugh has since replaced Kennedy, resulting in a conservative majority in the court.
In a 5-4 vote last February, the justices halted the law. Despite having voted in favor of the Texas law, Roberts joined the majority in putting a hold on the law. Gorsuch and Kavanaugh both voted for the law to take effect.
In terms of the potential ramifications of the law, one concern is that the law would leave only one clinic open in Louisiana, out of the three that are currently open. Admitting privileges can be difficult to obtain due to strict requirements, which can include religious criteria and a minimum number of admitted patients. This minimum can be especially hard to reach considering the fact that hospitalization after an abortion is rare. Furthermore, admitting privileges do nothing to improve the health and safety of women, begging the question of whether the benefits of this law would outweigh its costs.
According to the state, the law would not force the closure of any of the three clinics and would at most cause short delays at one of them. Furthermore, although the Louisiana law is similar to the Texas law, driving distances for women seeking abortions in Louisiana wouldn't increase as they did in Texas.
Louisiana is just one of many states that are trying to pass laws that indirectly restrict abortion. As Aimee Arrambide, executive director of NARAL Pro-Choice Texas, said, "The right to an abortion is meaningless if it's not accessible." At the time of the Texas ruling, ten states had passed admitting privileges requirements, and Michigan, Missouri, Pennsylvania, and Virginia were imposing requirements that abortion clinics meet the building standards of ambulatory surgical centers. A ruling contradictory to the Texas case could inspire a resurgence of attempts by other states to impose further requirements.
The ACLU recently asked the Supreme Court to take on a Kentucky ultrasound requirement prior to abortions. Another case that may come to the Supreme Court concerns an Indiana law that requires providers to give women seeking an abortion certain information eighteen hours before the procedure that might persuade them not to have an abortion. This law also requires an ultrasound, and the woman involved would have the option to see a photo of the fetus. Like in the Texas and Louisiana cases, lawyers in the Indiana case would be able to make the argument that having to make two trips to a provider would place another undue burden on women.
All of this is part of a larger shift among certain states toward targeting the Roe v. Wade decision that guarantees the right to an abortion. With the Supreme Court now leaning conservative, states are passing restrictive laws in hopes of being able to challenge Roe in front of the Supreme Court. The idea is to make abortion, in the words of a lawsuit that challenged the Louisiana law, "increasingly unavailable, until it does not exist in practice, while still remaining legal in theory." The Roe decision only fully legalizes unrestricted abortion during the first trimester, while allowing regulations related to maternal health during the second trimester and regulations with exceptions for maternal health during the third trimester, making these challenges entirely possible.
Some states are starting with regulations that fall under these guidelines. For example, more than twenty-five states have a clinic requirement tailored to abortion providers. Many states also have laws that require waiting periods for seeking abortions. Some states have laws that require providers giving out abortion-providing drugs to be in the same location as a patient (instead of using videoconferencing technology), making it more difficult to distribute the drugs in question. However, they will eventually start to toe the line of what is constitutional in hopes of taking a case to the Supreme Court and overturning Roe v. Wade.
In addition, conservatives are trying to make it harder for others to fight their new laws. For the upcoming Louisiana case, the Supreme Court has accepted a cross-appeal from Louisiana officials that argues that abortion providers shouldn't be able to challenge abortion restrictions. Abortion providers often sue on their patients' behalf, as patients don't have the money, time, or resources to fight the tightening restrictions conservative officials are placing on women's healthcare.
Given the makeup of the current Supreme Court, it seems probable that the ruling will come out in favor of the Louisiana law. From a legal standpoint, this outcome would be jarring since such a ruling would completely disregard Supreme Court precedent set forth in Whole Woman's Health v. Hellerstedt. For anti-abortion advocates, these developments would represent a victory, as the bar would be raised for abortion clinics to stay open. It may even open the door for other Supreme Court precedents to be challenged. From the standpoint of pro-choice advocates, such a ruling makes it incredibly clear where conservatives might strike next and, more concerningly, where they might succeed. In the words of Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center, if the court grants the Louisiana case, "the assault on Casey begins."
Gabrielle Meyers is a Staff Writer for the Gate. The image featured in this article is licensed under the Creative Commons Attribution-ShareAlike 2.0 Generic. The photographer was Lorie Shaull. The original image can be found here.