Article

Explainer: The Supreme Court refuses to protect women from the dangerous practices of the abortion industry

June 29, 2020

What just happened? 

In a 5-4 ruling, the Supreme Court failed to prioritize the health and safety of women over the profits of the abortion industry by striking down reasonable medical regulations for abortion clinics in Louisiana. 

Justice Breyer wrote the majority opinion joined by Justices Sotomayor, Ginsberg, and Kagan. Chief Justice Roberts wrote a concurring opinion, joining with the four more liberal justices in the Court’s ruling. Justices Thomas, Alito, Kavanaugh, and Gorsuch wrote dissenting opinions.

What is this case about? 

The case, June Medical Services LLC v. Russo, asked the justices to consider a Louisiana law designed to protect women. This law, Louisiana Act 620, passed through the Louisiana state legislature in 2014 with wide bipartisan support. The law required doctors performing abortions to have active admitting privileges at a hospital located no further than thirty miles from the location at which the abortion is performed or induced. This would ensure that women seeking an abortion could be quickly transferred in the event of any medical complications. Every other outpatient medical provider is required to have hospital admitting privileges—this policy holds abortion clinics to the same standards of medical care that every other medical provider in Louisiana is required to abide by.

This case reveals the simple truth that abortion is not healthcare. If abortion was healthcare then the clinics involved should be held by law to proper medical standards to protect their patients. The abortion lobby cannot claim to be on the side of their patient’s health while opposing healthcare industry regulations.

How did the Court rule in this case?

The court applied and upheld the prior precedents in Planned Parenthood v. Casey, which established the “undue burden” precedent, and Whole Woman’s Health v. Hellerstedt, which struck down a Texas law on medical standards similar to Louisiana’s under consideration today. Taken together, these cases hold that a state cannot even enact reasonable public health regulations on the abortion industry if a court finds that those regulations place an “undue burden” on the ability of women to obtain abortions.

Unfortunately, the Court upheld the 5-3 decision in Hellerstedt and refused to acknowledge the responsibility of states to ensure that women are protected if they experience complications related to an abortion. Further, by granting abortion doctors “third-party standing,” the Court ensured that more lawsuits would be brought by doctors, “on behalf of patients,” opposing common sense health and safety standards.

What is the “undue burden” precedent?

The undue burden precedent comes from a 1992 Supreme Court case called Casey v. Planned Parenthood in which the Court, led by Justice Sandra Day O’Connor, reworked Roe v. Wade instead of overturning it. Roe allowed states to regulate abortions after the baby had reached the point of viability. The Court saw this as an unworkable standard because the point of viability is constantly changing due to medical advances.

Instead of overturning Roe, the Court devised a new legal test to determine when and how a state could regulate the practice of abortion. This new test allowed a state to place any regulation on abortion as long as the regulation did not place a substantial obstacle on a woman’s so-called constitutional right to have the abortion. Chief Justice Roberts, quoting Casey, explained in his concurring opinion in June Medical, “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” He goes on to write, “Laws that do not pose a substantial obstacle to abortion access are permissible, so long as they are ‘reasonably related’ to a legitimate state interest.”

The undue burden test has proved an equally problematic framework because the test is subjective. Courts have not clearly defined what does and does not meet a substantial obstacle. It is up to the Court in future cases to more clearly articulate the parameters of the test. 

What was the ERLC’s amicus curiae brief about?

The ERLC filed an amicus curiae brief (a friend-of-the-court brief) in this case arguing that the undue burden standard was not the correct test for this case. Because Louisiana Act 620 sought to bring abortion clinics—which are surgical clinics—under the same medical standards as all other surgical clinics, we argued that the legal test used for all other surgical clinics should apply. That legal test is called the rational basis test, whereby the Court asks if the state had a rational basis—a very low standard to meet—for passing the statute or regulation in question. In other words, we argued that Louisiana needed only to have a legitimate government interest for passing its admitting privileges statute. 

In this case, Louisiana clearly has a legitimate interest in protecting women. There are a number of documented cases in Louisiana where women suffered adverse health consequences because their abortion providers were unqualified to provide a continuity of care as they were transferred to a hospital after suffering complications from their abortions. Louisiana’s law was aimed at protecting women who suffered from such complications—a commonsense, legitimate government interest.

How did the Court reach this decision? 

The Court primarily relied on the ruling in Whole Woman’s Health v. Hellerstedt, which ruled 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 and are therefore constitutionally invalid.” The Louisiana law closely mirrored the Texas law at issue in Hellerstedt. In that case, the Court held that the Texas law had the effect of limiting access to abortion in Texas and created what the Court called a “substantial obstacle.” Here, the majority similarly concluded that because the Louisiana law would restrict access to abortions, it created a substantial obstacle on women seeking abortions. 

Chief Justice Roberts wrote a separate opinion where he concurred in judgement but not in the reasoning offered by the Court. Chief Justice Roberts relied heavily on the doctrine of stare decisis, or respecting the prior precedent of the Court in reaching his decision. Although Chief Justice Roberts dissented in Hellerstedt, he nevertheless argued that Hellerstedt should be respected as a past precedent issued by the Court.

What is the significance of this case? 

Unfortunately, the Court’s opinion in June Medical Services v. Russo means that states still face significant limitations on regulating the abortion industry. Their lobby now has one more court decision to reinforce the argument that because new regulations may reduce the availability of abortion clinics it therefore imposes an undue burden on the so-called right to the procedure.

This case will affect the pro-life movement’s state legislative and litigation strategy as well. However, as Russell Moore reminds us, “We will continue to seek an America where vulnerable persons, including unborn children and their mothers, are seen as precious, not disposable.” Patients ought to be protected before profits, and we will continue to work toward that goal.

ERLC interns Julia Stamper, Sloan Collier, and Seth Billingsley contributed to this article.