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Symposium: Abortion: A right in name only?

Jennifer Dalven is the director of the Reproductive Freedom Project at the ACLU, which filed an amicus brief in support of the petitioner in June Medical Services v. Gee.

Is the Supreme Court going to overturn Roe v. Wade? Everywhere I go, that’s the question I get. And to be sure, it’s a legitimate and very frightening question. After all, in 2019 alone, seven states passed laws banning abortion from the earliest days of pregnancy, all in the hopes of getting the Supreme Court to overturn Roe. And 207 members of Congress just asked the court to do the same.

But focusing solely on that question runs a real risk of blinding us to the damage the court could do to the ability of people to get abortion care without so much as mentioning Roe. I say that in part because the court will soon be presented with the opportunity to eviscerate a person’s right to have an abortion such that the right exists in name only. In fact, that is exactly what the state of Louisiana has expressly asked the court to do in June Medical Services v. Gee. Although the state stops short of asking the court to expressly overturn Roe, it advocates for a standard that would gut the right.

June Medical concerns a Louisiana law that requires doctors who provide abortions to have admitting privileges at a local hospital. If that rings a bell, it’s because not even four years ago the Supreme Court struck down an identical Texas law in Whole Woman’s Health v. Hellerstedt. The court, in a 5-3 opinion joined by Justice Anthony Kennedy, found that admitting-privileges laws serve no health-related benefit nor any relevant credentialing function. What the law did do was force half the clinics in the state of Texas to close.

The district court in Louisiana made similar findings. After considering extensive evidence at trial, the court found that the requirement “provides no benefits to women and is an inapt remedy for a problem that does not exist.” That finding is supported by the leading medical organizations, including the American Medical Association and the American College of Obstetricians and Gynecologists, which opined that “there is simply no medical basis to impose local admitting privilege requirements on abortion providers.” 

As in Texas, the effects of the law would be devastating for people seeking abortion care in Louisiana. The district court found that it would leave only a single doctor to provide abortions in the entire state and would “cripple women’s ability to have an abortion in Louisiana.” Louisiana is one of the poorest states in the country, and the law’s burdens (including the need to travel long distances, take additional time off work and pay increased costs) would fall disproportionately on people with low incomes.

Louisiana says none of this should matter because the doctors could have gotten admitting privileges if they had just tried harder. Never mind that the district court found that they tried in good faith to get privileges for well over a year and were unsuccessful. And never mind that their inability to get privileges was hardly a surprise, given that in Whole Woman’s Health the Supreme Court found as an “undisputed general fact” that hospitals have “common prerequisites to obtaining admitting privileges that have nothing to do with the ability to perform medical procedures” but that prevent abortion providers from obtaining privileges. (Every other court to examine this issue has found the same.) And ignore the fact that Louisiana has never explained why in the world the doctors wouldn’t just get the privileges if they could, rather than suffer through depositions, discovery, trial and more than five years of constant uncertainty about whether they can keep their clinics open.

Utterly unable to distinguish Whole Woman’s Health on the facts, Louisiana (supported by the U.S. solicitor general) attempts to gut the standard for determining the constitutionality of abortion restrictions. Under the test proposed by Louisiana and the federal government, whether there is any evidence that the restriction actually furthers the state’s asserted interest is irrelevant. As long as the state can come up with some seemingly rational basis, Louisiana argues that all restrictions should be upheld unless they “make abortions nearly impossible to obtain for the relevant women (or all women, in a facial challenge), such that the abortion right exists in name only.

Stop for a second and let that sink in. Under Louisiana’s test, as long as some people might still be able to obtain care, a state would be free to pass a law making it as difficult as possible for people to exercise their constitutional right – including laws that force people to travel across the state, shoulder significant unnecessary costs and seriously delay care – all without having to produce a shred of evidence that the burdens imposed by the law actually further a legitimate state interest in any way.

In some ways one can understand what motivated Louisiana to take such an extreme position. Given that the Supreme Court found that admitting-privileges requirements don’t further any valid state interest, and the district court’s similar findings – heck, even the U.S. Court of Appeals for the 5th Circuit, which upheld the law, candidly admitted that the benefits “are not huge” – Louisiana was searching for a way to make the lack of any state interest irrelevant.

And yet there are at least two reasons that even the conservative members of the court ought to reject Louisiana’s argument out of hand. First, Louisiana’s test is simply incompatible with how the court treats all other constitutional rights. In no other area of constitutional law do we require plaintiffs to show that the burden on a right is virtually insurmountable before a court looks at whether the law imposing that burden has any benefits whatsoever. So, unless and until the court decides that there is no constitutional right at all to abortion, this argument should be a nonstarter.

Second, the Supreme Court has already rejected the very argument that Louisiana makes here – that the benefits of a law are irrelevant unless the law places a “substantial obstacle” (or, in Louisiana’s formulation, a nearly insurmountable obstacle) in the pregnant person’s path. As the court explained in overturning the 5th Circuit’s decision in Whole Woman’s Health:

The Court of Appeals wrote that a state law is “constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.” …

The Court of Appeals’ articulation of the relevant standard is incorrect. The … Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. … The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”

Here, after weighing the law’s burdens (leaving Louisianans with only a single doctor to provide abortion care) against its benefits (nonexistent), there can be no question that the burdens are “undue.” The only question is whether the court will continue to ensure that the right to abortion has some level of real protection under the Constitution or will adopt a new standard such that the right becomes one in name only.

Recommended Citation: Jennifer Dalven, Symposium: Abortion: A right in name only?, SCOTUSblog (Jan. 29, 2020, 1:00 PM),