The Supreme Court will hear arguments in the nation's biggest abortion case in years this week, in a showdown that could not only force abortion clinics across the country to close but also decimate activists' ability to sue over restrictions.
The case, June Medical Services v. Russo, is the first time the Supreme Court will consider an abortion case since Justices Neil Gorsuch and Brett Kavanaugh cemented its conservative majority. Although the case isn’t a direct challenge to Roe v. Wade, the 1973 case that legalized abortion nationwide, abortion rights advocates believe losing would unleash a new wave of restrictions, force clinics to close, and eradicate access to legal abortion in large swathes of the United States.
Abortion clinics might even lose the right to file lawsuits on behalf of their patients — something they’ve been able to do for more than four decades. Today, providers launch most major abortion rights litigation; if they lose their ability to do that, they’d have to find pregnant women who want an abortion and are willing to sue.
“If we do not have a win, then there’s going to be some serious repercussions on a national level,” said Kathaleen Pittman, the administrator of the clinic suing Louisiana. “I don’t think that’s an overstatement.”
If that Louisiana law at the heart of the case goes into effect, it’d force two of the state’s three clinics to close and block all but two doctors from performing abortions. One of those doctors has already said he’d quit out of fear for his safety. The other doctor already stopped performing the procedure, CBS News reported last year.
So this case could make Louisiana the first state without an abortion clinic since Roe v. Wade legalized abortion nationwide in 1973.
Arguments take place on Wednesday, but a decision on the case isn’t expected until June. Regardless of the ruling, the justices’ verdict is sure to make abortion rights a central issue in the 2020 presidential election.
What’s the case about?
Back in 2014, Hope Medical Group, an abortion clinic in Shreveport, sued the state to halt a law known as “Act 620.” The law bans doctors from performing abortions unless they have “admitting privileges” at a hospital within 30 miles.
These privileges give doctors the ability to admit patients to a hospital and work as a member of the hospital’s staff. Of the five doctors who perform abortions in Lousiana, just two have admitting privileges, according to court records. Only one reportedly practices, and the other might stop soon, too.
Supporters of abortion rights call laws like Act 620 “TRAP laws,” or “targeted regulations of abortion providers.” These laws, they say, hold providers to medically unnecessary standards — like requiring clinics to have extra-wide hallways — in an effort to force them to close. Between 2011 and 2017, TRAP laws led about half of all clinics in Arizona, Kentucky, Ohio, and Texas to shutter, according to the Guttmacher Institute, which tracks abortion restrictions.
Louisiana also has an extensive track record of trying to limit abortion. In the 47 years since Roe was decided, the state passed 89 abortion restrictions, including a bill to ban abortion as early as six weeks into pregnancy. That’s far more than any other state, the Guttmacher Institute found.
Why do admitting privileges matter?
If an abortion patient needs to get carted off to a hospital, Louisiana argues that Act 620 ensures continuity of care for patients.
But the abortion clinic in Shreveport says it’s nearly impossible for abortion providers to get admitting privileges; hospitals simply don’t want to grant them. Louisiana’s abortion providers have repeatedly tried and failed to secure privileges.
“Hospitals have an incentive to make sure that their beds are filled so they can charge for their services, so they extend privileges to physicians who routinely send patients to the hospital,” said TJ Tu, senior counsel for the Center for Reproductive Rights, which is arguing the case on behalf of Hope. He added that the hostility toward abortion in Louisiana also makes hospitals wary of establishing a relationship with providers.
Few abortion patients ever go to the hospital: Studies have repeatedly found that abortion is overwhelmingly safe and effective, with few cases with serious complications.
That’s why, the clinic argues, requiring privileges is medically unnecessary and designed to shut providers down — and the American Medical Association and several other major medical organizations agree.
What happened the last time the Supreme Court heard a major abortion case?
The justices will have a chance Wednesday to reconsider a 2016 ruling once hailed as the biggest legal victory for the abortion rights movement in decades.
In the case, Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a Texas abortion restriction that was virtually identical to the Louisiana law.
The justices ruled in a 5-3 opinion that Texas’ requirement that providers get admitting privileges had made it unconstitutionally difficult to undergo the procedure.
“In the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities,” Justice Stephen Breyer wrote in the majority opinion. “Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.”
If the Supreme Court is willing to upend a four-year-old case — though little has changed since 2016 other than the justices’ ideologies — Roe’s chances of survival are dim. And for Texas, the damage is done. The law had forced about half of the state’s clinics to close, and the vast majority never reopened.
Louisiana believes the facts of the current case are different enough that Whole Woman’s Health doesn’t matter. For example, the state contends that abortion providers who want admitting privileges face fewer legal obstacles than they did in Texas.
The reason the doctors don’t have privileges, Louisiana says, is because they didn’t try hard enough to get them.
Do we have any idea how Gorsuch and Kavanaugh will rule?
Hours before Act 620 was set to go into effect last year, the Supreme Court ruled to temporarily block it in a 5-4 decision.
The justices didn’t offer any reasoning, but Gorsuch joined the conservative minority in voting to let the law move forward. Chief Justice John Roberts, now the closest on the bench to a swing justice, sided with the liberals.
Kavanaugh also wanted the law to go into effect, but he wrote a solo dissent explaining why. He argued that since the law included a “45-day transition period” before it went into full effect, providers could use that time to try to secure privileges and prove whether Act 620 makes it unconstitutionally tough for people to undergo abortions.
Are any other issues likely to pop up?
The Supreme Court will also be addressing one other question come Wednesday: Should abortion clinics even have the right to sue on behalf of their patients?
For the past four decades, the answer has been “yes.” In the 1976 case Singleton v. Wulff, the Supreme Court ruled that providers could sue over abortion restrictions because doctors are so “intimately involved” with patients’ choice to get one.
Today, it’s providers, not patients, who usually file major abortion lawsuits. The ACLU Reproductive Freedom Project, for example, is currently handling more than two-dozen cases involving abortion restrictions. Just one was brought by a patient.
But Louisiana is now urging the justices to change that standard. The providers are trying to challenge a law aimed at keeping women healthy, the state argues, which means they want the opposite of what their patients want.
The abortion clinic’s “interest — and that of other Louisiana abortion providers — is to reduce their present and future compliance obligations while providing as many abortions as possible,” lawyers for the state wrote in a brief.
Abortion is a highly stigmatized, very time-sensitive procedure. It’s not exactly easy to find a woman who, in the middle of trying to end her pregnancy, will decide that she’s got the resources to sue her state.
“It is just yet another strategy to cut off access to abortion services,” said Julie Rikelman, the senior director at the Center for Reproductive Rights and attorney arguing for Hope in front of the Supreme Court Wednesday. “It would require people who are pregnant to file a lawsuit and then keep that lawsuit going for, in this case, five and a half years.”
Cover: Handsmaid themed protesters march down Bourbon Street in the French Quarter of New Orleans, Louisiana, on May 25, 2019, to protest the proposed Heartbeat Bill that will ban abortion after 6 weeks in that state scheduled for a vote on May 28. (Photo by Emily KASK / AFP) (Photo credit should read EMILY KASK/AFP via Getty Images)