I recently experienced acute déjà vu when writing our amicus brief in the Supreme Court case June Medical Services v. Russo, which deals with a challenge to a 2014 Louisiana restriction on abortion. That’s probably because the Supreme Court heard a case about an identical state abortion restriction just four years ago.
In Whole Woman’s Health v. Hellerstedt, the Court found that a Texas law requiring that abortion providers have hospital admitting privileges did virtually nothing to protect patient health and did a whole lot to eliminate access to abortion. That’s because few hospitals – especially in Texas and Louisiana, where these cases have arisen – will grant admitting privileges to abortion providers. It’s a cynical but rather effective trick that abortion opponents have been using extensively in the past ten years or so: pass laws that pretend to be about making abortion safe, knowing that what will happen is that clinics will close because the requirements of those laws are impossible to meet.
In Whole Woman’s Health, a majority of the Supreme Court saw the Texas law for what it was – a sham measure with virtually no health benefit that imposed a tremendous burden on women seeking abortion care in Texas. Because the Supreme Court is the final arbiter of federal constitutional rights, the Whole Woman’s Health decision should mean that any laws in other states that are like the one struck down in Texas are similarly unenforceable. Louisiana, however, thought differently. Despite publicly available evidence that its law was literally modeled on the unconstitutional Texas one, it has persisted in enforcing its own admitting privileges law, necessitating yet another lawsuit by abortion providers so that they can continue to serve their patients.
Legally, this should have been an easy case. It is not terribly surprising the that U.S. Court of Appeals for the Fifth Circuit ruled in favor of Louisiana, as the court is one of the most conservative and its judges are consistently hostile to abortion.
What is surprising – and somewhat alarming – is that the Supreme Court agreed to hear the case. In a situation like this, with crystal-clear and recent on-point precedent, the high court should simply have summarily reversed the Fifth Circuit’s decision. Such a ruling – which says, in effect, “we don’t need any briefing or oral arguments because the outcome is obvious” – would have sent the proper signal to the states that they may not flout a Supreme Court decision just because they don’t like it.
That’s what happened a couple of years ago when Arkansas effectively gave the back of its hand to the Supreme Court’s decision in Obergefell v. Hodges that affirmed marriage equality nationwide. When NCLR clients Marisa and Terrah Pavan sought to have both of their names placed on their child’s birth certificate, the state refused, despite the fact that they are married and that the state’s own law said that the spouse of the birth mother was to be listed as a parent on the birth certificate. In other words, the state refused to treat them as married.
The Pavans, along with Leigh and Jana Jacobs, another couple who suffered the same treatment by Arkansas, sued the state, which dug in its heels, offering an invented rationale about biology despite the fact that the statute regarding names on birth certificates is clearly based on marriage, not biology. When the Arkansas Supreme Court denied relief, we took the matter to the U.S. Supreme Court, which…summarily reversed. The high court ruled that Obergefell means what it says, and that states must treat married same-sex couples as they would opposite-sex married couples. Right outcome, end of story.
So why the déjà vu with abortion? Could it have anything to do with the Supreme Court’s new-ish lineup? When Whole Woman’s Health was decided in 2016, Justice Scalia had passed and not yet been replaced, and Justice Kennedy was still on the bench. The decision was 5-3. Neil Gorsuch now occupies Scalia’s seat, and Kennedy’s retirement brought us Brett Kavanaugh.
Will the Supreme Court audaciously reverse itself so soon and hand abortion opponents a victory simply because there is now a conservative majority? Surely Chief Justice John “Balls and Strikes” Roberts would reject the notion that the Court is so lacking in integrity. So why did the Court take this case?
We can only speculate on the answer to that question. Louisiana offered up some unconvincing reasons why its law is not in fact a carbon copy of the one in Texas, and further upped the ante by lodging an argument that abortion providers – the ones targeted by its law – don’t even have legal standing to challenge it. If they get the Court to rule in their favor on the standing argument, it would be devastating to future efforts to challenge unconstitutional abortion restrictions.
Abortion providers – already some of the bravest individuals I know owing to their willingness to tolerate harassment and death threats to provide abortion care – have been the ones with the fortitude to challenge abortion restrictions on behalf of their patients. For what woman, especially in the age of toxic social media and virulent and violent anti-abortion protests, would want to lend her name to a court case to protect abortion rights? It is the clinics and doctors who perform abortions who do this for their patients, who bring these challenges in court. It has become, unfortunately, a part of their jobs.
In the Whole Woman’s Health case the National Center for Lesbian Rights, joined by a host of other LGBTQ organizations, filed a brief with the Supreme Court to remind it that states have often used bogus “health and safety” rationales to trample on the rights of unpopular minorities and other powerless groups, just as Texas was trying to do with its admitting privileges law.
The LGBTQ community has come forth again in June Medical to reiterate that essential point, plus two more. We explained to the Court that in recent years abortion providers have become important sources of health care to LGBTQ people, so if states are allowed to run these clinics out of business for specious reasons, our community will lose access to culturally competent health care services. We also lifted up the parallel between the constitutionally protected rights to reproductive autonomy and marriage equality, urging the Court to honor its own precedent on access to abortion care as it has done on access to marriage.
We sincerely hope that the Supreme Court does the right thing in June Medical. But we shouldn’t even be here. It is time that state legislators cease their unrelenting attacks on the dignity and autonomy of women and LGBTQ people. The unending stream of legislative proposals introduced by conservative lawmakers – from abortion restrictions to barring transgender youth from receiving essential health care – distort science and coopt medicine in pursuit of an ideological agenda that denies to individuals the ability to live as their true selves and make their own decisions regarding childbearing and family formation. As they have done in the past, these policymakers wrap themselves in the language of pseudoscience to disguise animus as concern for health and safety. And yet again, we must look to the judiciary to pull back the curtain, see these harmful policies for what they really are, and strike them down as the Constitution requires.
Julie Gonen is the Policy Director for the National Center for Lesbian Rights (NCLR). She has an extensive background in federal policy and advocacy for non-profits, specifically on issues related to reproductive rights. She is the author of “Litigation as Lobbying: Reproductive Hazards and Interest Aggregation,” published by The Ohio State University Press; the book is a case study of United Auto Workers v. Johnson Controls, a 1991 Supreme Court case in which corporate “fetal protection” policies were found to be unlawful sex discrimination. Julie also serves on the Board of Directors of the Abortion Care Network.
