Just four years after the Whole Woman's Health v. Hellerstedt decision strengthened the precedent and promise of 1973's Roe v. Wade, Louisiana's medically unnecessary regulation, Act 620, has given the Supreme Court the opportunity to weaken or outright overturn federal protections for abortion care.
Despite Act 620 raising the exact same issue as Whole Woman's Health — a medically unnecessary requirement that a physician have hospital admitting privileges within 30 miles of the procedure — the outcome of June Medical Services, LLC v. Rebekah Gee is far from certain and unlikely to be as simple as a "win" or "loss." Instead, experts are watching for a slate of possibilities — most of which are sure to further exacerbate the decade-long, exponential increase in reproductive health clinic closures and burdensome hurdles to abortion care around the country.
As we mark the anniversary of the Roe v. Wade decision, we're forced to ask: Is this the year when we could lose protection of our abortion rights?
Incrementalism, which involves "long game" tactics, has been part of the anti-abortion strategy since Roe decriminalized abortion 47 years ago. Constitutional amendments are famously a long shot (just ask Equal Rights Amendment activists who fell a mere three states short of the required 38), so establishing constitutional rights for fetuses has never been a serious focus of the structured part of the anti-choice movement.
Instead, the movement has been chipping away here and there, adding medically unnecessary requirements and expensive, time-consuming blockades that anti-choice activists knew would go wholly unnoticed by monied constituents. Targeting individual doctors, local legislatures and even individual patients was quietly effective. By the time the Tea Party wave swarmed in and turned up the volume and intensity of its attacks over the past 10 years, the legal landscape throughout our country was set.
Due to this existing landscape and the eccentricities of the Supreme Court itself, all of the legal experts consulted by Truthout on June Medicalexpressed two important caveats to their analyses: One, the Supreme Court can always do whatever it wants as long as it has the votes. Two, neither Roe nor Whole Woman's Health needs to be directly overturned or even referenced in the decision to do significant damage to the future of abortion access in this country. All of the individual challenges from individual states and cities trying to defend unconstitutional abortion restrictions plus all of those from clinics, doctors or patients trying to strike down those restrictions mean that there is always another case in the circuit court pipeline.
Whatever happens in the month of June when the decision on the June Medicalcase is announced, experts are planning tempered reactions — not just because of the ideological shift on the court since Whole Woman's Health, but also because the opportunity to hear the next abortion case is never far off. And the Trump-era appointments have provided all the ingredients that lawyer, author and Abortion Care Network board member David S. Cohen explained to Truthout three years ago would be needed to nullify Roe:
While … Cohen conceded that it "wouldn't be hard at all with committed justices," he described the path to an ultra-right-wing court as long and challenging. How challenging depends on the timing of potential vacancies and the willingness of Senate Democrats and moderate Republicans to hold up confirmation of any justice who won't commit to upholding existing precedent, or — in "court speak," upholding the "rule of law."
"There's no doubt they're going to do damage," Cohen told Truthout. "There's so many different ways this could come out — but we certainly have the justices with beliefs on this court right now that are more likely than not to strip away abortion rights."
Justices could do that under the specious guise of "protecting the patient's health," even though this exact same provision was shown to have zero benefit for patients to outweigh its clear burdens.
In real life, the "promise of Roe" never reached those who needed it most: the poor, youth, people of color, LGBTQIA people and rural populations.
What lay people think of as "settled law" rarely is, according to Diana Kasdan, director for judicial strategy at the Center for Reproductive Rights (the legal team representing the Louisiana clinics and their patients).
"These laws are all modeled on each other," Kasdan told Truthout of the anti-choice provisions. "The states introduce them for the same purpose: to shut down clinics. And Louisiana knew it would work in shutting down clinics because that's what happened in Texas."
Currently, all four remaining Louisiana clinics are open, pending the outcome of June Medical — despite being attacked directly in the justification for the law itself and for the attorney general to fight to reinstate Act 620. In the press release tied to the attorney general's office following its June Medical brief, AG Jeff Landry pulled an impressive amount of misinformation out of the air to share with constituents:
"Women deserve better than incompetent providers who put profits over people," said Solicitor General Murrill. "Louisiana is not Texas, and our case is distinguishable from Hellerstedt; our facts, our evidence, and our generally applicable medical standards are all different. This bipartisan legislation is necessary because Louisiana abortion providers have a long documented history of medical malpractice, disciplinary actions, and violations of health and safety standards."
In his role at Abortion Care Network, Cohen is connected to all the independent (i.e., not Planned Parenthood affiliated) member clinics around the country where over 60 percent of abortions are performed annually — including in Louisiana. His response to the AG's allegations was clear and brief: "Abortion is just as safe and complications are just as rare in Louisiana as anywhere else."
Kasdan confirmed that no evidence of unsafe practices was presented to the court.
"In fact, if you look at the record, the provider in this case has been providing abortions for decades and, in all that time, maybe four women had to go to the hospital from some kind of emergency care," Kasdan said. Statistically, this is on par with the national average of one-tenth of 1 percent of abortion patients ultimately seeking such follow-up care.
None of the experts Truthout consulted were surprised by the specious nature of the "evidence" from the state or by the speed with which the court chose its Whole Woman's Health follow-up. What's more, whatever the outcome of June Medical may be, going forward we can expect more of the same from the dozens of state houses hostile to abortion rights.
Kimberly Inez McGuire, executive director of the youth-focused and led URGE: Unite for Reproductive and Gender Equity, says current uncertainties about Roe underscore the importance of building community and increasing access.
"I think that (our) folks are clearer and clearer that we cannot and we will not wait for the courts to deliver justice — especially this Supreme Court," McGuire told Truthout. "In this moment we know that the Supreme Court is not going to deliver justice to our communities. And, so, what that feels like on the ground? It feels like people who are really sick of low standards — including, frankly, the low standard of Roe v. Wade in the first place."
McGuire expressed a frustration heard and repeated over and over by activists, advocates, and social-justice minded legislators and academics. In real life, the "promise of Roe" never reached those who needed it most: the poor, youth, people of color, LGBTQIA people and rural populations.
"This was never enough for our communities," McGuire said, echoing sentiments from Quita Tinsley, co-director of ARC-Southeast, who spoke with Truthout in December. Both advocates audibly sighed when asked about the impacts of Roe. A legal right without access is a fractured, if not broken, promise.
"It was always focused too heavily on this legal right to abortion," McGuire said, pointing to the fact that despite this right, many people cannot actually obtain the abortions they need. "To be clear, for some people that legal right has saved and changed their lives. And for many people it has been meaningless….We cannot have basic dignity and humanity if we cannot make our own decisions about sex, our bodies and pregnancy."
The Supreme Court has all the power
Cohen's career fighting for individuals' rights to make those decisions for themselves has meant that, when it comes to court cases, he tends not to see the glass as half empty or half full. He's incredibly mindful of case law history and how past justices have gone off the rails in ways both obvious to the public (such as the Citizens United decision) and in ways that were subtler and more difficult to convey (like the 2013 gutting of the Voting Rights Act).
According to Cohen, the June Medical decision could present an opportunity to further cement past Supreme Court rulings.
"I can see a way that June Medical can win this case by appealing to Chief Justice Roberts [and] maybe Justice Kavanaugh [on the grounds that] lower courts need to listen to the Supreme Court," Cohen explained. "They can't ignore Supreme Court precedent [i.e. Whole Woman's Health]. [They could] appeal to the institutional argument that the Supreme Court having decided something in 2016, you can't just let the lower courts ignore that. I could see that as a winning argument, but I think it's incredibly unlikely."
It is, however, a reminder that any prediction about a win or loss for "either side" following the March 3 oral arguments or the June decision announcement must include context exploring the consequences for low-income and rural folks, the LGBTQIA community, people of color, the undocumented and new immigrants, and other marginalized groups.
Among the practically limitless minutiae of possible outcomes, Cohen is taking his cues from the current political climate (don't let anyone tell you the Supreme Court isn't political), the case history and personalities of the sitting justices, and the tea leaves available to the chosen few who have been present at past oral arguments and decisions.
"I think much more likely is that we have the justices with an ideology that says that the Supreme Court has gone too far with its abortion jurisprudence and we need to rein it in," said Cohen. "[Now], do we need to rein it in by just saying that it really is a state by state analysis on admitting privileges? So, then, admitting privileges are unconstitutional in Texas, but not Louisiana? They could do that. [Or, they] could rule that Whole Woman's Health was just wrong. They could say Casey [Planned Parenthood v. Casey, 1992] was wrong. They could say Roe was wrong."
The issue of "standing"
What these decisions come down to, Kasdan explained, is the issue of "standing."
"What they've done — at the last minute, the eleventh hour, at the Supreme Court — is said, 'Actually, the providers don't have standing to bring these claims on behalf of [patients]'," said Kasdan. "That was not raised in Texas in the Whole Woman's Health case — probably because for over 50 years the Supreme Court has recognized that providers have standing to represent the constitutional rights of the people they care for because it would be incredibly burdensome and impractical to expect a pregnant woman to run out to find a lawyer and bring litigation at the moment [when] she's also jumping through every hurdle possible to access abortion care."
It sounds like settled case law. Unfortunately, not only do anti-abortion groups have what McGuire accurately described as "a kind of creepy resilience," but it's not hyperbole to expect they'll use that resilience to keep raising the issue of standing until they get a decision they like. And a decision that strips standing from clinic owners and physicians — who both directly face consequences in the form of expensive regulations imposed on their businesses and in accordance with their position as caretakers for their patients — could conceivably end advocates' ability to challenge these laws at all once they're passed. If abortion providers can't bring lawsuits on behalf of their patients, it's much less likely that such lawsuits would ever see the light of day.
"It would be a way for them to do something that looks like it's, you know, wonky and procedural, but really destroy abortion rights in a broad way," Cohen said. "The third-party standing issue would be a way for them to gut almost all abortion litigation in a way that no one would really understand."
Roe in real life: a promise that falls short
For all the talk this week about the promise of Roe v. Wade, McGuire sighed when asked what comes to mind when she hears that phrase.
"What comes to mind for me is the clarity that that promise was never for me or my people or my community," said McGuire. "That promise was not for women of color. That promise was not for poor women. That promise was not for young people. To the extent that it ever has existed, that promise has been broken too many times."
McGuire added that even with Roe still in effect, "lots of people in Alabama and Georgia and Ohio can't get an abortion," adding, "If we didn't have Roe that would still be true."
For more than a decade, McGuire has organized with communities located too far from the sanctified Supreme Court building in the capital to be comforted or empowered by a decision that merely decriminalized abortion. While a loss or weakening of Roe would signal to anti-abortion legislators that they can hit the gas on both state and federal laws, nothing in Roe or the subsequent cases that altered or cemented precedent over the ensuing 47 years ensured access to abortion care.
Roe doesn't open or fund clinics. Roe doesn't put future abortion providers through medical school. Roe hasn't stopped state legislators from imposing thousands of restrictions. Roe can't reach the patients whose actions or bodies have been criminalized by other policies and laws.
Ultimately, it's not the duty of the Supreme Court to advance abortion access. Under the Constitution, that job belongs to legislators — which means it's up to communities to organize and demand more than an end to restrictions. Without explicit protections for providers and patients, even a "win" in June leaves the door open to revisit this issue as often as annually.
What good is a promise that can't be kept?
"I am not sitting with an existential dread over whether or not we will have Roe," McGuire said. "I am sitting with my fierce determination to fight for something better."
Copyright © Truthout. Reprinted with permission.