In March, the Supreme Court heard its first abortion rights case since Justice Anthony Kennedy—the court’s swing vote on abortion rights for decades—was replaced by Brett Kavanaugh: an anti-choice conservative and Federalist Society member.
And while many eyes were trained on Kavanaugh during oral arguments in June Medical Services v. Russo (previously Gee), it was Justice Samuel Alito whose questions showed a level of hostility that underscored his contempt for abortion rights, his disdain of abortion providers and—when it interferes with his anti-abortion ideology—the value of precedent itself.
Should Alito’s willingness to disregard precedent find a friend in Chief Justice John Roberts—who has replaced Justice Kennedy as the court’s swing vote—then the conservative rollback of abortion rights portends nationwide doom for the reproductive autonomy of pregnant people.
It’s odd that the Supreme Court decided to hear arguments in June Medical Services in the first place. Attorneys at the Center for Reproductive Rights, who represent the plaintiffs, found themselves before the court making the same arguments they made four years ago in Whole Woman’s Health v. Hellerstedt on behalf of providers in Texas.
At issue in June Medical Services is Louisiana’s Act 620, a law put in place in 2014 that requires abortion providers to maintain admitting privileges (an agreement that allows them to admit patients to a specific hospital) within 30 miles of the medical clinic where they perform abortions. It is identical to the Texas law that the Supreme Court struck down in Whole Woman’s Health.
A U.S. District Court temporarily blocked the law in 2014 and then again in 2016.
In April 2017, the District Court made its final ruling, finding that the law was unconstitutional and an undue burden on the constitutional right to an abortion in violation of the principles set forth by the Supreme Court in Planned Parenthood v. Casey and clarified in Whole Woman’s Health. The District Court further found that the undue burdens imposed by the law would fall most heavily on low-income women, who tend to be women of color.
But that didn’t matter to the conservative 5th U.S. Circuit Court of Appeals, which, in a stunning opinion, substituted its own fact-finding for the District Court’s—something an appellate court is not supposed to do—and ruled that Act 620 could take effect.
In the 5th Circuit’s judgment, there just wasn’t enough proof that clinics would close or that abortion rights would be unduly burdened under the law. This despite a six-day trial, mountains of evidence to the contrary—and the fact that two clinics had immediately closed when the law briefly went into effect.
So June Medical Services filed a petition with the Supreme Court, asking it to take the case and overrule the 5th Circuit.
This piece is excerpted from the Spring 2020 issue of Ms.
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Had the state of Louisiana simply opposed June Medical Services’ petition on the merits of Act 620, oral arguments in June Medical Services would have played out much like they did four years ago during oral arguments in Whole Woman’s Health. Attorneys for June Medical Services would have argued that the law does not advance patient health and safety but instead makes it more difficult for women to access abortion.
The consequences of the law would be far worse in Louisiana than in Texas, where a handful of the admitting-privileges requirement would leave Louisiana with one clinic and one provider—the only one in the state with admitting privileges.
Moreover, that provider testified that if he became the only provider in the state, he would discontinue his practice out of fear for his life and the lives of his family—ultimately leaving Louisiana without a single provider.
June Medical Services would have been a simple case. But the case is more than a reboot of Whole Woman’s Health: It is a stalking horse designed to take away the ability of abortion providers to challenge abortion restrictions based on the insidious claim that they do not have the best interests of their patients at heart.
Louisiana made this claim in an eleventh-hour cross-petition with the Supreme Court that asked the justices to decide whether June Medical Services had standing to sue in the first place.
The question of standing asks, generally, whether or not a party before the court has an injury that the court can remedy. If not, then the party doesn’t have standing, and if the party doesn’t have standing, then it doesn’t have a case. Usually, an individual must bring a legal claim on his or her own behalf.
But in some cases, an individual can bring a legal claim on behalf of a third party not before the court—as long as the person before the court has suffered an injury, has a close enough relationship to the third party whose rights they are trying to vindicate, or there’s a hindrance to the third party’s ability to file a lawsuit to protect their own interests.
That’s what we have here.
Abortion providers in Louisiana have suffered an injury: The law targets abortion providers with onerous requirements that other medical doctors in Louisiana don’t have to meet, and failure to adhere to these requirements subjects providers to civil and criminal sanctions, including loss of their medical license.
Providers and their patients have an obviously close relationship, and all want the same thing: for abortion care to be available absent regulations like admitting-privileges laws that deliver no tangible health benefit. The hindrance to pregnant people asserting their own rights is also obvious: While litigation takes years to be resolved, a pregnancy is finite.
Despite more than 40 years of Supreme Court precedent authorizing abortion providers to challenge abortion restrictions on their patients’ behalf, in fall 2019, Louisiana filed its cross-petition arguing for the first time that the providers in the lawsuit cannot challenge the law on behalf of their patients because they do not have standing.
It was an extraordinary request made even more unusual by the fact that for the five years Louisiana litigated this case, it conceded that June Medical Services had standing to sue.
But at the last minute, the state reversed course, insisting that the plaintiffs challenging Act 620 were doing so out of their own self-interest. The state argued that these providers cannot represent the best interests of their patients if they are challenging regulations that it says promote the health and safety of their patients.
During oral arguments, the state’s attorneys were supported in this assertion by the U.S. Justice Department. U.S. Deputy Solicitor General Jeffrey Wall explained the supposed conflict between doctors and patients this way: “One is the interest of for-profit providers and not being regulated in particular ways. The other is the interest of women in their own health and safety.”
“Would you agree with the general proposition that a party should not be able to sue ostensibly to protect the rights of other people, if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend?” Alito asked Julie Rikelman, the Center for Reproductive Rights attorney arguing on behalf of the plaintiffs.
Rikelman said no, and noted that the Supreme Court has frequently allowed third-party standing “in cases where the state argued that the third parties were protected by the law and in a sense protected from the plaintiffs.”
Justice Alito knows this. It is well-settled Supreme Court precedent.
“Really? That’s amazing,” he responded. “You think that if the plaintiff actually has interests that are directly contrary to … those individuals on whose behalf the plaintiff is claiming to sue, nevertheless that plaintiff has standing?” he asked, seemingly incredulous.
Rikelman said yes, and again Alito declared, “That’s amazing”—as if he’d never heard of such a thing.
In another effort to coax a concession that there might be a conflict of interest where there is none, Alito said to Rikelman, “I know you think that the admitting-privileges requirement serves no safety purposes, but suppose that the regulation that was being challenged was one that a lot of people might think really did serve a safety purpose.”
It’s not a matter of what she thinks, Rikelman responded, but of what the Supreme Court has already ruled: “There is not even a plausible conflict in this case because this court already held that admitting privileges serve no medical benefit.”
And that’s the constitutional rub: The Supreme Court already ruled that this particular law served no safety purpose in Texas.
In addition, the U.S. District Court found that it served no safety purpose in Louisiana. Women can still access care at a hospital even if their abortion provider does not have admitting privileges. There is no conflict between providers and patients: Providers in Louisiana are not trying to avoid compliance with safety regulations because the regulation at issue isn’t actually a safety regulation.
As Justice Sonia Sotomayor noted, a provider’s and a patient’s “interests are not misaligned. They want to achieve the same holding, that this law unduly burdens her right to abortion. … I don’t see a conflict with that.”
Louisiana lawmakers did not pass the law out of concern for patient safety. (As Justice Ruth Bader Ginsburg noted in her questioning of the state’s representative, “You don’t dispute that, among medical procedures, first-trimester abortion is among the safest—far safer than childbirth?”) At least one legislator admitted that they passed the law because they knew how effective it was in shuttering clinics, given hospitals’ refusal to grant admitting privileges.
Even though the providers in June Medical Services tried to get privileges at 15 hospitals over the course of a year and a half under the direct supervision of the District Court, they were unable to do so. Admitting privileges are hard to come by, because an admitting privilege is, in part, a financial agreement, not a measure of a provider’s competency.
Some hospitals refuse to grant privileges because abortion providers, due to the low rate of complications, cannot guarantee a minimum number of patient admissions. Complications are so rare that most providers never need to admit a patient into a hospital.
Other hospitals refuse to grant admitting privileges to abortion providers because they don’t want to be subjected to protests and threats from anti-abortion extremists. In Whole Woman’s Health, the Supreme Court cited an amicus brief filed by Planned Parenthood Federation of America which noted that certain clinics in Texas were forced to close as a result of local providers not being able to obtain admitting privileges because of “the hostility that abortion providers face.”
A 2018 survey of abortion providers released by the Feminist Majority Foundation (publisher of Ms.) indicates startling levels of clinic violence and harassment. According to the survey, almost a quarter of clinics across the country have experienced the most severe threats of violence, including death threats, stalking and clinic access blockage. Almost half of U.S. clinics reported having experienced at least one incident of severe harassment, such as a break-in, robbery or vandalism. And 88 percent of clinics report- ed being subjected to disruptive protests and demonstrations that in some places are occurring daily or weekly.
Providers face that same kind of hostility in Louisiana. In an amicus brief filed with the court, the Feminist Majority Foundation—together with the National Organization for Women, Southern Poverty Law Center and the Women’s Law Project—argued that violence and threats of violence against abortion providers make it virtually impossible for providers to obtain admitting privileges:
“The uncontradicted evidence established that the fear of violence deters hospitals from granting admitting privileges to abortion providers and that reducing the number of providers (as Act 620 will do) intensifies extremists’ focus on the small number of remaining providers, making it likely they will stop providing abortion care.”
Given the danger that abortion providers face, advocates hoped that during oral arguments the Supreme Court justices would not say anything that would further demonize providers.
But Alito seemed uninterested in recognizing that a climate of fear surrounds abortion care in Louisiana and drawing the fairly obvious conclusion that this climate of fear negatively affects a provider’s ability to obtain admitting privileges. Instead, he questioned the safety of abortion—along with the integrity of abortion providers.
During oral arguments, he questioned the motives of specific doctors who had tried to get admitting privileges but were unable to do so. In regard to one doctor who the lower court found made a “good faith effort” to obtain privileges only to be denied for reasons unrelated to his competency and qualifications, Alito remarked that “it would be counter to his own interests for him to make a super effort to get admitting privileges, wouldn’t it, because he’d be defeating his own claim”—as if the provider would rather be the center of a national abortion rights case than caring for patients.
Alito pointed out that another doctor hadn’t even tried to get privileges at one hospital, noting that the doctor had testified that he did not apply there “because it’s a Catholic hospital”—as if the doctor held some prejudice rather than an awareness of the religious directives under which Catholic hospitals operate, which prohibit abortion care.
Louisiana has the highest maternal mortality rate in the country, with black women making up 72 percent of pregnancy-related deaths. In the District Court case, one clinic director testified that between 70 and 90 percent of women who receive abortions at her clinic are poor or low-income. Moreover, as the District Court pointed out in its ruling striking down the law, 75 percent of women seeking abortions in Louisiana are already mothers.
It is unclear whether there are five votes to ignore more than 40 years of precedent in favor of a ruling that abortion providers no longer have standing to bring claims on their patients’ behalf. If there are, that decision will reverberate nationwide.
A decision in Louisiana’s favor would gut Whole Woman’s Health’s ruling that admitting-privileges laws are an undue burden—because, as the court said in 2016, they have no health or safety benefit. It would reduce the earlier decision to a state-by-state inquiry into the benefits and burdens of individual admitting-privileges laws. And it would give anti-abortion lawmakers across the country the green light to resurrect admitting-privileges laws that were either struck down by lower courts or abandoned in the wake of the Supreme Court’s 2016 decision.
Attorneys for Alabama and Tennessee were in the middle of defending their states’ respective admitting-privileges laws when they decided to stop since the laws were so similar to Texas’.
In 2016, the Oklahoma Supreme Court struck down Oklahoma’s admitting-privileges law citing Whole Woman’s Health. And attorneys for Mississippi stopped defending that state’s law in 2017 because they couldn’t find any meaningful distinction between Mississippi’s law and Texas’.
Should the court side with Louisiana, anti-abortion lawmakers in each of these states could get another bite at the apple. They would have an opportunity to make the case that in their state, an admitting-privileges law provides medical benefits that outweigh the burdens on women seeking abortions.
And with the federal courts increasingly stacked with Trump-appointed judges, these laws may be upheld. How states will make that case is unclear: It is hard to imagine what medical benefit could exist in Tennessee that doesn’t exist in Texas. If admitting-privileges laws provide no benefit, then no state has a valid interest in passing them because any burden is an undue burden.
But a ruling that permits states to try to make that case is simply another way of severely restricting abortion access without yet overruling Roe v. Wade.