The Supreme Court today released an opinion in June Medical Services v. Russo, striking down a Louisiana law that might have gutted abortion access in 15 states.
The Louisiana law at issue requires doctors who provide abortions to have admitting privileges at nearby hospitals. Most doctors, including those providing similar procedures, do not have these privileges. Research shows that these privileges are often politicized, and do not improve patient safety. Whether or not her doctor has admitting privileges, a woman requiring hospital care following an abortion would go to the nearest emergency room. Her treatment would be the same.
The Court struck down similar admitting privilege legislation from Texas just 4 years ago in Whole Woman’s Health v. Hellerstedt. Because of the complex politics of hospital privileges, most medical providers lack them and many abortion doctors are unable to get them, regardless of their skill, reputation, or training.
Whole Woman’s Health v. Hellerstedt established that such laws constitute an undue burden on a woman’s Constitutional right to abortion. Yet several states continued attempting to enact such laws, including Louisiana. The law would close all but one of the state’s abortion clinics.
Justice Roberts joined the majority, asserting that Whole Woman’s Health was wrongly decided, but that stare decisis—legal precedent—compelled him to follow the holding in that case. The rest of the judges voted on ideological lines.
Striking down this law affirms that the Court will still follow its own precedent, prohibiting certain targeted restrictions of abortion providers. Affirming Louisiana’s law would have blocked abortion access for millions of women.
June Medical Services v. Russo: History of an Abortion Restriction
Writing for the majority, Justice Breyer said, “Louisiana’s Act 620 imposes a burden on access to abortion just as severe as that imposed by the nearly identical Texas law invalidated four years ago in Whole Woman’s Health v. Hellerstedt.”
Justices Ginsburg, Sotomayor, and Kagan joined the opinion. Justice Roberts agreed with the judgment. Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented.
The state of Louisiana also challenged the right of abortion clinics to file lawsuits on behalf of potential patients. The court rejected this argument. “We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations,” the opinion stated. The opinion does not protect an absolute right for clinics to challenge restrictive abortion bans, but it does not eliminate that right by accepting the state of Louisiana’s argument.
The case began with a 2014 Louisiana law requiring all abortion doctors to have hospital privileges within 30 miles of the abortion clinic where they provide services.
Citing the Court’s earlier ruling in Whole Woman’s Health, the Center for Reproductive Rights challenged the law on behalf of Hope Medical Clinic. A district judge in Louisiana initially blocked the law. When the state appealed to the 5th Circuit Court of Appeals, the three-judge panel ruled that Louisiana’s law was substantially different from the Texas law at issue in Whole Woman’s Health. The judges held that the law differed substantially from the Texas law struck down in 2016 by the Supreme Court, and ignored the lower court’s findings of fact. On this basis, it reversed the ruling of the lower court, allowing the ban to remain in place. The 5th Circuit is the same federal court that ruled in favor of Texas in Whole Woman’s Health.
For decades, state legislatures have enacted rules that directly target abortion providers, forcing them to comply with more restrictive regulations than doctors who provide services that present similar risks. These rules are called targeted regulation of abortion providers (TRAP), and are a way of gutting abortion access without outright banning the practice.
Proponents of requirements that abortion providers have admitting privileges argue that these privileges make patients safer. The overwhelming evidence shows otherwise. Most doctors do not have admitting privileges at local hospitals. If a patient at an abortion clinic needs emergency care, she goes in an ambulance to a hospital—whether or not her doctor has privileges at that hospital.
Hospital privileges are not solely based on medical skill or reputation. The process is often politicized, and hospitals can deny privileges for any reason, or for no reason at all. Some hospitals do not want to be associated with abortion providers, and reflexively deny all such providers admitting privileges. This politicized, unnecessary process is known to close clinics and limit abortion access.
How TRAP Laws Harm Women
TRAP laws harm, and may even kill, women by denying them abortion access. They also create the illusion that abortion is a dangerous procedure. Research consistently shows that abortion is roughly as safe as minor dental procedures. Maternal mortality in the United States is skyrocketing, with lawmakers doing nothing to slow the epidemic. Abortion is 14 to 111 times safer than giving birth, depending on the stat where a woman gives birth.
Controlling women is deadly. When El Salvador criminalized abortion, suicide became a leading cause of maternal mortality. There’s little evidence that banning abortion makes it go away—only that it sends it underground. Indeed, in much of Latin America, where abortion is illegal, the abortion rate is higher than that of the United States. Every year, tens of thousands of women worldwide die of unsafe abortion. That’s exactly what will happen in the United States if abortion becomes more inaccessible. We’ve already seen evidence of this in Texas, where restrictive abortion laws have caused 8 percent of women to induce their own abortions.
Even when women find ways around TRAP laws, such as traveling to another state, the effects can be catastrophic. At least two studies have shown that strict abortion regulations cause women to seek later abortions, driving up both the costs and risks of the procedure.
The Future of Abortion in the United States
This ruling is outstanding news for all women and the people who care about them because it means the Court will follow its own precedent in at least some abortion cases. That doesn’t mean abortion access is safe. SCOTUS could still reverse its precedent in Roe v. Wade. It could also erode choice in other ways, by upholding other TRAP laws or placing further restrictions on abortion for minors, immigrants, or incarcerated people.
Abortion rights—indeed all rights—are in imminent danger if Donald Trump wins re-election and gets to appoint more Supreme Court justices. The enraged dissent of Thomas makes clear what the Court might say about these cases in the future:
“Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.”
As with all Supreme Court decisions, the opinion is always more complicated than a few quotes might indicate, and the win is not decisive. There is no reason to believe that this opinion will stop further TRAP laws. Indeed, the Court noted that the language Louisiana used in its law was virtually identical to that used by Texas. Read the full opinion here.