Image Credit: “Seeking reproductive justice” by Adam Fagen is licensed under CC BY-NC-SA 2.0
By Kelley Huber, JHBL Chief Symposium Editor
Abortion advocates and opponents are waiting fervently for the Supreme Court’s decision in June Medical Services v. Russo, an appeal from the 5th Circuit. In this case, the state of Louisiana is attempting to implement hospital admitting privileges as a requirement for abortion clinics to remain open under current state health protocols Under this logic, an abortion provider can only deliver abortion care safely by having the power to admit patients to a local hospital, despite less than 1% of patients experiencing complications from the procedure. This may seem like a redundant concept for the Court to extrapolate because it recently has—in 2016’s Whole Woman’s Health v. Hellerstedt. This case involved a similar state requirement in Texas, and the Supreme Court found this requirement to be an undue burden for the delivery of abortion services in the state. However, June Medical arrived at the Supreme Court after the 5th Circuit misapplied the Whole Woman’s Health precedent in an en banc decision and found the state requirement to not be burdensome. When the abortion clinic appealed to the Supreme Court, the state filed a countersuit asking the Court whether giving third-party standing to abortion providers on behalf of their patients was constitutional.
Many observers of the Court note that this is the first case of reproductive health jurisprudence presented to the two judges appointed by the Trump Administration – Justices Neil Gorsuch and Brett Kavanaugh. However, this is not the first opinion by the newest justices on abortion precedent. Prior to oral arguments in March 2020, the abortion clinic plaintiffs applied for a stay before the 5th Circuit’s decision to uphold the state’s hospital admitting privileges rule came into effect. While the stay immediately appealed up to Justice Samuel Alito, the opinion was granted to the entire bench. The Court decided 5-4 that this state mandate went directly against the holding in Whole Woman’s Health. (June Medical Services v. Gee, 586 U.S. __ (2019)).
In his dissent as the only opinion published with the decision, Justice Kavanaugh wrote that the admitting privileges requirement did not constitute an undue burden because the practitioners in Louisiana could continue to apply for admitting privileges at hospitals within the specified radius of their abortion clinics. Because the doctors had not yet received formal denials in admitting privileges from local hospitals, it seemed to Justice Kavanaugh that calling the state mandate an ‘undue burden’ was premature. In addition, Justice Kavanaugh wrote that practitioners and local hospitals could work together “expeditiously and in good faith” during the 45-day transition period from when the law took effect in Louisiana. (Id., Kavanaugh, J. dissenting.)
While Justice Kavanaugh maintains a positive outlook on the relationship between the state government and abortion practitioners, his outlook is contrary to decades of history considered by practitioners and lawyers as vitriolic. The 5th Circuit is comprised of the district courts within Texas, Louisiana, and Mississippi. Each of these states would have abortion procedures banned outright in the event that Roe v. Wade was ever to be overturned by the Supreme Court. Further, each state requires a person seeking an abortion to visit their procedure setting twice – once for state-mandated “counseling” dissuading the patient from seeking the procedure, and then a second visit at least 24 hours later for the actual procedure.
This precedence of hostility towards abortion has been recorded and shared for decades, including in hearings to the 2014 Senate Judiciary Committee. During a Committee hearing Nancy Northup, President of the Center for Reproductive Rights, recounted being part of a human chain in 1994 to block a mob of anti-abortion protesters intending to obstruct patient access to a Baton Rouge abortion clinic. After the national media broadcasted this historic melee, the Freedom of Access to Clinic Entrances Act was passed in Congress to prevent such disturbing confrontations from happening again. Yet, as the years passed, pretextual state policies and legal impediments have thwarted access to abortion clinics through easements on property, geographic distance, or the closing of provider settings.
Unfortunately, the Circuit’s open animosity towards abortion care is evident on the fringes of the lawsuit. In the event that the Court does uphold Louisiana’s arguments in the case, third-party standing may be over as we know it. Third party standing is used when a person having a close affinity or relationship to a party represents that party’s interests as plaintiff to a lawsuit. If the practice were found unconstitutional, abortion clinics and practitioners would be barred from suing on behalf of their patients’ access to the procedure. This would result in a judicial system that would require people experiencing an unplanned pregnancy to go through the court system in order to exercise their right to abortions as articulated under Roe v. Wade. While neutrally facial in theory, this would ultimately create a practice of navigating both the medical and legal system to obtain an abortion. This would find patients either facing serious travel or financial burdens for abortion care out of state or simply being forced to carry an unplanned pregnancy to term. As childbirth has been equivocally found to be a more dangerous medical procedure than abortion, this adds a serious health risk to the already difficult equation at hand.
Justice Kavanaugh’s opinion is rooted in a legal fallacy. Historically, the states in the 5th Circuit have shown that abortion cannot be accessed freely and without burden within their jurisdictions, as stated under Supreme Court jurisprudence. To then say that the Circuit states can enter into a state mandate freely and in good faith for both parties ignores decades of hostility, manipulation, and sheer malice towards patients seeking a medical procedure and practitioners who dare to provide such care. Further, this creates the same legal idea that Justice Kavanaugh’s opinion directly objects – legal precedent. Upholding the Louisiana hospital admitting mandate would create a wave of other states closing clinics and practices that are otherwise legally operating and providing necessary healthcare to thousands of patients – despite the Court recently concluding that states cannot place an undue burden on abortion providers.
Precedent is a key legal concept, without which we would not be able to interpret swathes of legal issues and complexities. It is the model from which we interpret the novel situations that approach members of our profession. Abortion care is simply not one of those novel situations. The Supreme Court needs to uphold its own precedent – regardless of which justices comprise the Court – and be the independent beacon of jurisprudence that the nation needs.
Kelley Huber is a third-year law student at Suffolk University Law School and the Chief Symposium Editor of the Journal of Health and Biomedical Law. Her research interests include employment discrimination, reproductive justice, and gender equality issues. Outside of law school, she is an active volunteer and speaker with the Planned Parenthood Advocacy Fund of Massachusetts. She holds a bachelor’s degree from the University of Connecticut. She can be reached at khuber2@su.suffolk.edu.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources
June Medical Services, L.L.C. v. Russo, 140 S. Ct. 663 (2019) (Kavanaugh, J., dissenting).
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
Roe v. Wade, 413 U.S. 113 (1973).
https://www.vox.com/2020/3/4/21160241/supreme-court-abortion-june-medical-services-law
https://www.govinfo.gov/content/pkg/CHRG-113shrg99962/html/CHRG-113shrg99962.htm
https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-mississippi#
https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-louisiana
https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-texas