The Supreme Court is expecting to rule in the coming weeks on the biggest abortion case of the Trump era.
Technically, the case asks whether Louisiana doctors must possess admitting privileges at nearby hospitals, a requirement that would force all but one clinic in the state to close. But Louisiana has also raised the stakes very, very high for the rest of the nation: If the Supreme Court sides with Louisiana, abortion providers may completely lose the right to sue on their patients’ behalf.
If the justices rule that only pregnant people can sue over abortion restrictions, challenging laws that limit access to abortion will become next to impossible. Few people who are scrambling to end a pregnancy are also willing to launch a lawsuit that could last for years, take up countless hours of their time, and potentially expose the fact that they’d gotten an abortion — which is, after all, deeply stigmatized — to the world.
Such a Supreme Court ruling could also potentially wipe out dozens of abortion cases currently making their way through the federal courts.
“It would be extremely difficult in the future to bring cases,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project. “It is no accident, no surprise, that the folks who are asking for this are people who want to make it more difficult for people to challenge laws, even laws that are admittedly unconstitutional.”
She added, “They’re trying to shut the doors not only to the clinics, but also to the courthouse.”
Lawyers for Louisiana insist that its requirement that abortion providers obtain admitting privileges aims to ensure that women are healthy and safe. And they’re extending that argument to challenge clinics’ ability to sue on behalf of women at all.
The Supreme Court has long recognized abortion providers’ right to sue over restrictions because they’re “intimately involved” with a patient’s decision about whether to get an abortion. Because the Louisiana clinic wants to overturn the admitting privileges rule, the state says that its relationship with patients isn’t intimate — it’s exploitative.
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 Louisiana wrote in a brief.
In the four decades since Roe v. Wade legalized abortion nationwide, most major abortion lawsuits have been brought by providers, not patients. In fact, Ronald Reagan was president the last time the Supreme Court decided a case brought by a woman suing over her own right to have an abortion.
The ACLU, for example, is currently working on more than 20 challenges to state abortion-level restrictions. None were filed on behalf of an individual patient. (They are not defending the clinic in the June Medical Services v. Russo case.)
“It is not just a matter of showing up one day, saying, ‘Oh I disagree with this, I want to file a challenge.’ It is very tedious work, it is very long,” said Kathaleen Pittman, administrator of Hope abortion clinic in Shreveport, which sued over the Louisiana restriction. The clinic is also involved in three other lawsuits, two in federal court. “We’re looking at a commitment of possibly years for that woman when all she wants to do is take care of her family.”
“Typical families do not have that kind of time to spend,” she continued. “They need to be able to concentrate on getting the care they need.”
If a woman does have the resources to sue, she’d likely be able to get a court order that’d temporarily block the law and let her get an abortion. But she’s still signing up to let a court publicly peer into every corner of her life.
While a woman could try to maintain anonymity by assuming a fake name, Amy Hagstrom Miller, who runs a national group of abortion clinics known as Whole Woman’s Health, pointed out that the identity of “Jane Roe,” of Roe v. Wade fame, is no secret today. (Though Norma McCorvey, the woman behind Roe, outed herself shortly after the case was decided, the lawyers behind the case knew they could never guarantee her anonymity.)
“Even when you go through a deposition or you go through a trial, all the people in the room, all the court reporters, all the people are hearing your story. It’s an invasion of that patient’s privacy,” Hagstrom Miller said. “The exposure that that patient is gonna go through, to the stigma that surrounds abortion in this country, is remarkable.”
Because the justices could rule very broadly or narrowly, it’s hard to determine how, exactly, their decision could reshape the lawsuits currently working their way through the courts. If the justices decide that providers can’t sue on their patients’ behalf in federal court, clinics would potentially need to scramble to find patients who’ll join their lawsuits. They’d need to do it fast, or their lawsuits could be dismissed altogether. That would be, to put it mildly, devastating for everybody who wants to challenge abortion restrictions.
Whole Woman’s Health is currently involved in five abortion lawsuits. Three have come to a standstill as both sides wait for the Supreme Court’s ruling in June Medical Services.
The coronavirus pandemic has also already provided a glimpse at what could happen in a post -Roe v. Wade United States — and why providers are so pivotal in abortion litigation. In 11 states, including Louisiana, public officials tried to cite the pandemic as a reason to temporarily ban abortions. Abortions essentially ground to a halt in a handful of states. Clinics were forced to cancel hundreds of appointments, and countless women travelled out of state for the procedure.
But after abortion providers sued, courts blocked the bans in nine of those states.
“If it were the case that medical providers, who are really on the frontlines of this issue, couldn’t go to court or were hamstrung in their ability to go to court, very likely the states would have been able to essentially ban abortion much longer into the pandemic,” said TJ Tu, senior counsel for U.S. litigation at the Center for Reproductive Rights.
Hagstrom Miller is confident that abortion providers will be able to find a way to move forward and keep challenging lawsuits, regardless of the outcome of June Medical Services. After all, they’re accustomed to obstacles. But she’s less sure about just how much all this will hurt clinics and the patients they’re trying to serve.
“What are we saying women in this country deserve? What are we saying rights actually mean?” she asked. “You might have the legal right to something on paper. But the path you have to follow to access it is not only absurd, it’s cruel.”
Cover: Abortion rights and anti-abortion demonstrators rally outside of the U.S. Supreme Court in Washington, Wednesday, March 4, 2020. (AP Photo/Jose Luis Magana)