The constitutional right to an abortion is most likely in its final days, though there is considerable uncertainty about whether the Supreme Court will explicitly overrule Roe v. Wade or simply hollow out the right until it becomes meaningless. June Medical Services v. Russo, a case that the Supreme Court will hear next Wednesday, could easily be the case that drains this right of its remaining force.
The right to an abortion’s fate was likely sealed in October of 2018, when Justice Brett Kavanaugh was confirmed to a seat on the Supreme Court. Kavanaugh’s predecessor, Justice Anthony Kennedy, spent many years maintaining an uneasy equilibrium between four justices who oppose the abortion right and four who’ve spent their time on the Court defending it. Though Kennedy typically voted to uphold abortion restrictions, he also recoiled at laws that cut so deeply into the abortion right as to render it meaningless.
But Kennedy is gone, and Kavanaugh is widely expected to join his four colleagues who reject the right to terminate a pregnancy. In his short time on the Supreme Court, Kavanaugh already tried to impose new procedural barriers on abortion plaintiffs that could have rendered the right virtually unenforceable.
The law at issue in June Medical will be familiar to anyone who has followed the last several years of abortion litigation. Indeed, it’s hard to escape a sense of déjà vu.
In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court struck down two provisions of a Texas law that sought to make it harder to obtain an abortion. One of those provisions required abortion providers to have admitting privileges at a nearby hospital.
June Medical, meanwhile, involves a Louisiana law that is virtually identical to the admitting privileges law struck down in Whole Woman’s Health. While the two laws are tough to distinguish, the Court is very different today than it was in 2016. Kennedy provided the key fifth vote to strike down the Texas law in Whole Woman’s Health. And Kennedy is no longer around to reaffirm that decision.
While it is overwhelmingly likely that five justices will vote to uphold Louisiana’s law, there is some uncertainty about how they will do so. It is possible that the Court will overrule Roe v. Wade outright. But it is at least as likely that the Court will leave Roe nominally in place while simultaneously watering down the abortion right to such a degree that it loses meaning in red states. The Court often prefers to create the impression that it will not allow the law to swing wildly according to the justices’ whims.
Broadly speaking, if the Supreme Court decides not to explicitly overrule Roe, there are two ways that June Medical could go down.
Banning abortion through sham health laws
Abortion-rights advocates often refer to laws like the one at issue in June Medical as targeted restrictions on abortion providers, or “TRAP” laws — laws that superficially appear to make abortions safer but whose real purpose is to make it much harder to operate an abortion clinic. On the surface, hospital admitting privileges seem to be a valuable credential that can be used to screen out doctors that — at least in the opinion of local hospitals — cannot be trusted to treat patients.
But the reality is that this credential is very difficult for many abortion providers to obtain. And requiring abortion doctors to obtain such a credential does little to make abortions safer.
One of the most sophisticated anti-abortion groups in the country is Americans United for Life (AUL), a group that writes “model” anti-abortion legislation that can be taken up by state lawmakers. In 2014, AUL took credit for 74 anti-abortion laws enacted by state legislatures in the proceeding four years.
Both the Texas admitting privileges law at issue in Whole Woman’s Health and the Louisiana law at the heart of June Medical closely resemble the “Abortion Providers’ Privileging Act,” model legislation drafted and promoted by AUL.
Significantly, AUL did not promote this model bill as an anti-abortion measure — or, at least, it did not do so in its public-facing advocacy. A 2012 document promoting the model legislation, for example, claimed that “abortion clinics across the nation have become the true ‘back-alleys’ of abortion mythology.” Legalizing abortion, it claimed, “has not eliminated substandard medical care, kept people without medical licenses from performing abortions, ensured competent post-abortion care, nor prevented women from dying from unsafe abortions.”
Thus, AUL claimed that admitting privileges are a useful credential that can be used to screen out incompetent abortion providers. “States laws mandating that abortion providers have hospital admitting privileges,” it claimed, “are critical to ensuring that women receive proper and competent abortion care.”
This messaging — that admitting privileges laws are intended to protect women’s health and not to shut down abortion clinics — formed the backbone of Texas’s defense of its admitting privileges law. And it also animates Louisiana’s arguments in June Medical. The Louisiana law, according to the state’s brief in June Medical, was enacted to promote “abortion safety by means of doctor credentialing.”
Yet the Supreme Court soundly rejected this justification for admitting privileges law in Whole Woman’s Health.
In Casey, the Supreme Court held 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.” Admitting privileges laws, the Court held in Whole Woman’s Health, are just such an unnecessary regulation.
As Justice Stephen Breyer explained in that case, abortions are a very safe medical procedure — “less than one-quarter of 1 percent” of first trimester abortions result in complications. Indeed, complications from abortions are so rare that abortion doctors often struggle to obtain admitting privileges for this very reason: Many hospitals only grant admitting privileges to physicians who admit a certain number of patients every year.
Admitting privileges laws, in other words, impose a significant burden on abortion clinics and on those clinics’ patients, while doing very little to make an already very safe medical procedure any safer. If the Louisiana law is allowed to take effect, it’s expected to close at least two of the three abortion clinics within that state. More broadly, according to the Guttmacher Institute, TRAP laws led to the closure of half the clinics in Arizona, Kentucky, Ohio, and Texas between 2011 and 2017.
The Supreme Court could potentially use June Medical to give a broad blessing to TRAP laws. And such a decision would not need to explicitly overrule Roe in order to drastically roll back or even eliminate the right to an abortion.
The Texas law at issue in Whole Woman’s Health, for example, did not simply require abortion providers to obtain admitting privileges at a local hospital. It also required most clinics to make expensive improvements to their facilities — some of which had nothing to do with the actual medical care provided by those facilities.
If the Louisiana law is upheld, states could potentially require abortion doctors to obtain more and more difficult-to-obtain credentials, while simultaneously requiring the clinics themselves to pay for millions of dollars in unnecessary equipment. Eventually, these burdens would become so great that no abortion clinic could afford to operate, and the right to an abortion would cease to exist in states led by anti-abortion lawmakers.
Banning abortion by preventing anyone from suing to enforce their rights
Alternatively, the Supreme Court could drastically limit abortion rights by making it much harder for anyone to bring a lawsuit challenging an anti-abortion law and by providing only very narrow relief to plaintiffs who do prevail in an abortion case.
June Medical is technically two consolidated cases, June Medical Services v. Russo and Russo v. June Medical Services. The first case concerns the constitutionality of Louisiana’s admitting privileges law. The second concerns a threshold question — whether the right party brought this lawsuit in the first place.
The plaintiffs in these cases are an abortion clinic and two physicians who wish to provide abortion care in Louisiana. The Supreme Court established more than four decades ago that abortion providers may sue to challenge a state law restricting abortion, but both Louisiana and the Trump administration now ask the Supreme Court to overrule this long-standing rule.
The general rule is that a plaintiff in federal court “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Thus, because the right to an abortion belongs to the person seeking an abortion, the ordinary rule would require that person to be the plaintiff in any lawsuit challenging an abortion restriction.
But the Supreme Court allows third parties to bring a lawsuit when “the party asserting the right has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” This doctrine is known as “third-party standing.”
Under this third-party standing doctrine, the Court allowed abortion providers to challenge laws restricting abortion. As Justice Harry Blackmun explained in Singleton v. Wulff (1976), “the constitutionally protected abortion decision is one in which the physician is intimately involved.” And abortion patients may be hindered in their ability to assert their rights, in no small part because someone seeking an abortion is likely to give birth before their rights are fully litigated.
Now, however, Louisiana wants to eliminate this rule allowing abortion providers to sue on behalf of their patients. Abortion providers interests, it claims, “potentially conflict with” the interests of their patients when a state enacts health regulations. If, in fact, the admitting privileges law is a credentialing requirement enacted in good faith to protect patients from incompetent doctors, then the doctor’s interest diverges from that of the patient. The doctor wants to be free from a burdensome regulation, but the patient wants to be sure that they will receive competent care.
It’s a clever argument, but it’s hard to square with Whole Woman’s Health, which already determined that admitting privileges laws do little to protect patient health.
The argument also assumes its own conclusion. After all, the core constitutional question in June Medical is whether Louisiana’s law is a legitimate health regulation or a sham law enacted to shut down abortion clinics. But the state effectively asks the justices to assume one answer to this question and then use that assumption to lock abortion providers out of court.
If the Supreme Court buys this argument, that would force abortion-rights lawyers to find an actual pregnant person who wants to get an abortion but is prevented from doing so by a state abortion restriction, every time it wanted to bring a lawsuit challenging such a restriction. That inconvenience wouldn’t be enough to shut down abortion litigation entirely — Roe v. Wade was brought by an individual woman seeking an abortion — but it would make it significantly harder to find plaintiffs.
One recent study, for example, found that 60 percent of individuals who stated publicly that they had an abortion “reported experiencing harassment and other negative incidents after sharing their story.” A potential plaintiff in an abortion case may not want to risk such a consequence.
A decision preventing doctors and clinics from bringing abortion lawsuits would be devastating to the abortion right, moreover, if it were combined with another procedural change favored by many conservative judges.
In a recent dissenting opinion seeking to restrict abortion rights, Justice Kavanaugh drew a distinction between “facial” challenges to an unconstitutional law and “as applied” challenges. When the Court declares a law to be invalid on its face, the law ceases to operate altogether. Whole Woman’s Health, for example, held that Texas’s admitting privileges law was facially invalid.
When a court strikes down a law as applied to a particular plaintiff, by contrast, that means the law cannot be applied in the specific circumstances that arose in that case. But the state may still be able to enforce the law against other parties who are not before the court.
Kavanaugh suggested that a facial challenge to Louisiana’s TRAP law is not appropriate, and he’s hardly the first member of the Supreme Court to make such a suggestion. Four dissenters drew a similar distinction between facial and as-applied challenges in Casey.
If Kavanaugh gets his way, that would mean that an individual patient challenging an abortion restriction would only be able to secure a court order allowing them and them alone to obtain an abortion. Imagine, moreover, that Kavanaugh’s rule were also layered on top of a decision holding that providers may no longer challenge anti-abortion laws.
The result would be a world where the only way to overcome an unconstitutional abortion restriction would be to find a lawyer, file a lawsuit, obtain a court order, receive the abortion, and do all of this before the pregnancy became so advanced that it was no longer legal to terminate it. And that’s assuming that abortion clinics would continue to operate in a state where the only way for anyone to obtain an abortion is to first obtain a court order.
As a practical matter, this world looks virtually identical to one where Roe was explicitly overruled. Wealthy individuals would still be able to fly to another state — or, if necessary, to another country — to obtain an abortion. But patients who lack the means or the job flexibility to travel to a distant clinic would be trapped.
The Supreme Court’s opinion in June Medical will most likely be handed down in late June. When that decision does come down, there’s no guarantee that it will overrule Roe. The decision could rest on complicated procedural grounds, and it may not immediately be clear what the decision means for people seeking an abortion.
But the decision could very well be a disaster for abortion rights even if the Court claims that it is leaving Roe in place. There are many ways to eliminate the constitutional right to an abortion without explicitly overruling Roe.