Law & the Courts

Can States Protect Women from ‘Unsafe’ Abortion?

A pro-life demonstrator outside the Supreme Court during the the 47th annual March for Life in Washington, D.C., January 24, 2020. (Kevin Lamarque/Reuters)
The Court will hear oral arguments Wednesday in a case challenging a Louisiana law regulating abortion providers.

On Wednesday, the Supreme Court will hear oral arguments in June Medical Services v. Russo, the first case involving abortion to come before the Court since the confirmation of Justice Brett Kavanaugh.

State abortion providers are challenging a Louisiana law that, in case of emergency, requires doctors who perform abortions to have admitting privileges at a local hospital. (Until recently, the case was known as June Medical Services v. Gee, in reference to Rebekah Gee, who was secretary of the Louisiana Department of Health when the lawsuit began.)

In June Medical, the Court will consider whether Louisiana’s admitting-privileges law violates the “undue burden” standard set forth in Planned Parenthood v. Casey (1992), a Supreme Court case that serves as precedent for U.S. abortion jurisprudence. This rather nebulous standard requires that courts strike down any law deemed to impose an undue burden on women’s ability to obtain an abortion.

In 2016, the Court in Whole Woman’s Health v. Hellerstedt struck down a Texas provision similar to Louisiana’s. Justice Stephen Breyer, who authored the opinion for the 5–3 majority, wrote that the Texas law’s provisions did not confer benefits to women sufficient to justify the burdens it imposed. This was determined to make the law an undue burden, and so it was struck down as unconstitutional.

Despite efforts from abortion-rights supporters to claim otherwise, the Louisiana law in question isn’t the same as the law in Texas, and June Medical isn’t fated to play out the way that Whole Woman’s Health did. Last fall, the Fifth Circuit Court of Appeals upheld the Louisiana law, in part on the grounds that, unlike in Texas, its admitting-privileges requirement wouldn’t force any abortion clinics to close.

“There is no evidence that any of the clinics will close as a result of the Act,” the Fifth Circuit opinion reads. “The only permissible finding, under this record, is that no clinics will likely be forced to close on account of the Act.” In Whole Woman’s Health, by contrast, the Supreme Court concluded that Texas’s law had resulted in the closure of about half of the abortion clinics in the state.

That distinction enabled the Court to take June Medical, as opponents of the Louisiana law claim that the Fifth Circuit’s ruling contradicts the decision in Whole Woman’s Health.

But that’s not the only question on which the Supreme Court is being asked to rule. Louisiana also has filed a cross-petition, asking the Court to consider whether abortion providers have third-party standing to challenge health-and-safety regulations on behalf of women, as they are doing in this case. As Ed Whelan has explained, third-party standing typically requires a close relationship between the parties, as well as some kind of hindrance that prevents the person who possesses the right from protecting her own interest.

In short, Louisiana is suggesting that abortion providers do not have standing to challenge state regulations aimed at protecting women, especially because of their distinct financial interest in performing abortion procedures. Rather than representing women with whom they have a close relationship, or women who can’t challenge these laws for themselves, abortion providers actually have a conflict of interest with women when it comes to safety laws.

If the Court were to determine that abortion providers cannot challenge abortion regulations on behalf of women, it would drastically reduce the number of cases brought against state laws seeking to protect women from unsafe abortion practices.

In the course of defending its law, Louisiana has provided abundant evidence that abortion providers in the state have a history of violating other state laws, offering substandard health care, and refusing to ensure that staff members are competent medical professionals.

“The admitting privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion,” the Fifth Circuit wrote in its opinion upholding the law.

Public records and expert testimony have revealed that Louisiana abortion clinics, including June Medical Services, have failed to report possible rapes of minors, hired radiologists and ophthalmologists to perform abortions, and neglected basic medical practices such as failing to monitor the vital signs of sedated women.

Another important detail in the case is that Louisiana’s admitting-privileges law treats abortion providers the same way that it treats all medical professionals who perform surgeries. State law requires all medical staff at ambulatory surgery centers to have admitting privileges at nearby hospitals, no matter what procedures they perform. The law in question merely requires abortion clinics to meet the same standards that every other licensed surgical facility in the state must meet.

Abortion-rights advocates lobbying against the law are essentially demanding that abortion providers be exempted from the safety standards properly applied to every other type of surgical medical procedure. Why would an industry that claims to prioritize women’s health fight regulation aimed at ensuring that women who seek abortions can receive emergency care?

It makes a great deal of sense that those who profit from abortion would wish to eliminate Louisiana’s law. It makes little sense that anyone who cares about women’s health would cheer them on in that effort.

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