The Supreme Court will hear oral arguments this spring in June Medical Services v. Gee, a case that could well be the vehicle the Court’s conservatives use to gut the right to an abortion.
At the heart of the case is a 2014 Louisiana law requiring abortion providers to have admitting privileges at a local hospital. Abortion rights advocates say such laws serve no medical purpose and are merely an effort to shut down clinics — and in the landmark 2016 case Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a similar law in Texas.
But the Supreme Court today is different from what it was in 2016. Gee is the first abortion-related case the Supreme Court will hear on the merits since Justice Brett Kavanaugh replaced the more moderate conservative Justice Anthony Kennedy. For many years, Kennedy was the Court’s “swing” vote on abortion — typically voting to uphold abortion restrictions but also recoiling at laws that cut so deep into the right to an abortion that they virtually nullified it. Kavanaugh, by contrast, is overwhelmingly likely to vote with his conservative colleagues to uphold the abortion restriction at issue in Gee.
The case could be chance for the Court to revisit Roe v. Wade, the landmark 1973 decision that established Americans’ right to an abortion. That decision is popular, with more than 70 percent of Americans — and a majority of Republicans — saying they want it to stay in place. But anti-abortion groups and many Republicans in Congress support overturning the decision. Indeed, in January, more than 200 Republican lawmakers signed an amicus brief asking the Court to uphold the Louisiana law — and consider getting rid of Roe.
The Gee decision may not be the final straw for Roe v. Wade. It is fairly likely that the Court will prefer to dismantle the right to an abortion in incremental steps. But it is likely to, at the very least, be the beginning of the end.
June Medical Services v. Gee is about restrictions on Louisiana abortion clinics. The nationwide implications are huge.
The mere fact that Gee is before the Supreme Court is a sign of just how precariously Roe dangles over an abyss. In Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a law that is virtually identical to the one at issue in Gee. Both the Texas law in Whole Woman’s Health and the Louisiana law in Gee require abortion doctors to obtain admitting privileges at a nearby hospital if they wish to perform abortions in the state.
Abortion opponents say admitting privileges laws are needed to make it easier for abortion providers to admit their patients into a hospital if complications arise. However, an abortion provider doesn’t have to have admitting privileges at a hospital in order for that provider’s patients to be treated there. As Judge Richard Posner of the Seventh Circuit Court of Appeals wrote in an opinion striking down a similar law in Wisconsin, “A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges.”
Not to mention, abortion complications are extraordinarily rare. As Justice Stephen Breyer explained for the Court in Whole Woman’s Health, studies indicate that “less than one-quarter of 1 percent” of first trimester abortions result in complications.
Then there is the fact that admitting privileges can be very difficult for abortion providers to get. Hospitals often only grant admitting privileges to physicians who admit a certain number of patients every year — meaning that many abortion providers will be unable to obtain these privileges precisely because the rate of complications for abortion is so low.
That’s why abortion-rights advocates often describe admitting-privileges laws as “targeted restrictions on abortion providers,” or “TRAP” laws — laws that superficially appear designed to make abortion safer but whose real purpose is to make it harder for abortion clinics to operate.
In Louisiana, for example, the law at issue in Gee would close at least two of the three remaining abortion clinics in the state. TRAP laws in general have proliferated in the South and Midwest since Republicans took control of many state legislatures in 2010, leading to a wave of clinic closures in those regions. According to the Guttmacher Institute, TRAP laws were responsible for the closure of half the clinics in Arizona, Kentucky, Ohio, and Texas between 2011 and 2017.
But in Whole Woman’s Health, the Supreme Court put a stop — or at least a significant slowdown — to the march of new TRAP laws. Admitting privileges laws violate a rule — first announced in Planned Parenthood v. Casey in 1992 — that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” (With Kennedy, who co-authored Casey, no longer on the Court, it’s now a safe bet that there are no longer five justices who object to such “unnecessary health regulations.”)
Gee now gives the Court an opportunity to rewrite recent history, potentially replacing Whole Woman’s Health with a decision more congenial to the post-Kennedy Court’s more conservative majority — one that would allow states to resume enacting TRAP laws with little fear of a federal court challenge.
The conservative United States Court of Appeals for the Fifth Circuit, for what it’s worth, claimed that factual differences between Gee and Whole Woman’s Health justified upholding the Louisiana law even after the Supreme Court struck down the nearly identical Texas law at issue in Whole Women’s Health. Judge Jerry Smith’s opinion for the Fifth Circuit suggests that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.
But the most relevant distinction between the two cases has nothing to do with hospital policies. The most important distinction is that Whole Woman’s Health was heard by Justice Kennedy. And Gee will be heard by Justice Kavanaugh.
That one lone change, more than anything else, is likely to make all the difference.
The Court could open the door for states to essentially eliminate abortion access — without banning the procedure outright
If the Court decides in Gee to uphold the Louisiana admitting privileges law, it will probably accelerate the passage of TRAP laws around the country. Republican-controlled state legislatures will essentially have the green light to pass increasingly stringent restrictions on clinic operations, without fear of a court challenge.
That could widen a divide that already exists in America, between states and regions where abortion is accessible and those where it’s essentially out of reach.
If the Supreme Court uses Gee to give a pass to TRAP laws, those numbers could go up. The most affected by this change would be low-income Americans who may not be able to afford travel to a faraway clinic or take the time off work needed to go there. Patients already sometimes forgo rent or food in order to pay for an abortion, and longer travel times will mean a greater financial burden.
Some people will likely be unable to obtain an abortion because of cost — lack of Medicaid coverage for the procedure already blocks a significant percentage of abortion-seekers from getting it, according to a recent study. People who want an abortion but can’t get one face risks to their health, financial security, and ability to bond with their children, researchers say. They may also be more likely to stay with violent partners.
Overall, those most affected by any proliferation of TRAP laws will likely be people of color, who make up the majority of people who get abortions, as Renee Bracey Sherman noted at Vox earlier this year.
Significantly, all these changes could happen without the Supreme Court explicitly overturning Roe v. Wade. Reversing that decision is unpopular with the American people — in a 2018 poll, 71 percent of voters, and 52 percent of Republicans, said they opposed getting rid of the landmark abortion decision. And some legal experts believe that even with the addition of Kavanaugh, the Court may not want to overrule it entirely.
But it doesn’t have to. Roe blocks states from banning abortion, but the Court could leave that rule in place while allowing states to pass increasingly strict clinic regulations that combine to effectively end abortion access without ever banning the procedure outright. A lot of abortion opponents believe this strategy is actually the one most likely to accomplish an end to abortion in America, which is why they often pursued incremental legislation in the years before Kavanaugh joined the Court — and why some are returning to that strategy again after recent near-total abortion bans faced legal challenges.
When the Supreme Court hands down a decision in Gee, in other words, it’s unlikely to be framed as a repeal of Roe. But for many people across America, it could have the same effect.
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