On Monday, about 200 organizations and 700 individuals filed 27 legal briefs in a critical case for abortion rights that is now before the Supreme Court.
The Court will hear oral arguments on March 4 in the suit—which its first major abortion case since Trump appointed two new anti-abortion justices, Neil Gorsuch and Brett Kavanaugh, to the nation’s highest bench. June Medical Services v. Gee centers on a Louisiana law requiring physicians who perform abortions to have admitting privileges at nearby hospitals. The federal trial court struck down the Louisiana law, but the Fifth Circuit Court of Appeals reversed the trial court and upheld the law—despite the 2016 Supreme Court decision of Whole Women’s Health v. Hellerstedt, which struck down an identical Texas law as an unconstitutional burden on women seeking abortion health care.
In a 5-3 decision, a majority of the justices at the time held that courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer” and that courts retain “an independent constitutional duty to review factual findings where constitutional rights are at stake.” The Court held that courts must consider the real world setting in which abortion restrictions function and consider the actual impact of an anti-abortion law when evaluating the burden imposed by the law.
Justice Kennedy sided with the majority in that case. Roberts, Thomas and Alito dissented. Now, with Kennedy retired and Brett Kavanaugh in his seat, and Neil Gorsuch sitting in the seat stolen from Merrick Garland, abortion rights advocates fear that a new conservative majority will overturn the Whole Women’s Health decision.
In an age when state lawmakers are passing anti-abortion laws in record numbers based on false claims about “protecting women’s health,” the decision in that case—which ruled that courts must review factual findings for accuracy—is a critical legal standard that might be lost in the process. That’s why feminists are fighting back.
The 27 briefs filed on December 2 make a wide range of urgent points about what’s at stake in June. Medical groups argued that requiring physicians to have admitting privileges at a local hospital is not medically necessary. Others argued that the Louisiana law could effectively eliminate legal abortion health care providers in the state. And one brief—filed by the Feminist Majority Foundation (publisher of Ms.), NOW, the Southern Poverty Law Center and the Women’s Law Project—connects the dots between the climate of violence and fear in Louisiana and the difficulty hiring and retaining physicians with admitting privileges clinics would face within it. Louisiana hospitals, it declares, are unlikely to grant these privileges to abortion providers—for fear that the hospital itself will become the target of threats and violence if they do.
The violence, threats, harassment and intimidation abortion providers face across the nation, and in Louisiana in particular, has been well-documented. “Between 1977 and 2018,” the authors lay out, citing data from FMF’s 2018 National Clinic Violence Survey and the National Abortion Federation’s 2018 Violence and Disruption Statistics, “there were 11 murders, 26 attempted murders, 42 bombings, 188 arsons, 100 attempted bombings or arsons and 4 acts of kidnapping… There were also 663 anthrax or bioterrorism attacks, 654 bomb threats, 664 death threats or threats of harm and 618 acts of stalking.” In Louisiana, it notes, “abortion providers have recently reported being targeted at private offices, hospitals and disturbingly, their children’s daycare centers.”
The brief makes clear that real world impact of the Louisiana law: reducing the number of providers, as the law will do, intensifies extremists’ focus on the small number of remaining providers, making it likely they will stop providing abortion care. “If the admitting privileges law is upheld, women in Louisiana could be left without a single abortion provider,” explained Katherine Spillar, executive director of FMF and executive editor of Ms. “Due to the fear of anti-abortion violence and harassment, hospitals can and do deny hospital admitting privileges to abortion providers. Nearly 1 in 4 abortion providers experienced severe violence and threats of violence in 2018, and 52 percent experienced targeted intimidation and threats against doctors and staff.”
For 32 years, Spillar has overseen FMF’s work to counter anti-abortion extremist violence, and to keep clinics open and safe.
“This is not an abstract concept,” she declared. “I have seen firsthand how anti-abortion extremists isolate and stalk doctors and clinic staff, plaster their faces, names and home addresses on WANTED posters, publish ‘justifiable homicide’ lists—all with the goal of creating a climate of terror. These same extremists have targeted hospitals, with the result being the denial or revocation of admitting privileges for abortion providers.”