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Last week, the Supreme Court handed down its decision in June Medical Services v. Russo, a highly anticipated case that tested the constitutional protection of abortion rights. The outcome, striking down Louisiana’s Unsafe Abortion Protection Act, surprised those on both sides of the abortion divide. Claiming to protect patients’ health and safety, the law mandated that physicians who perform abortions must have admitting privileges at a hospital within thirty miles of their office—a requirement often difficult for abortion providers to meet through no fault of their own. If the statute had taken effect, only one physician would have been able to practice, leaving 70 percent of Louisiana women without accessible abortion services.
Though Roberts’s concurring opinion yields an immediate sigh of relief, it should nonetheless worry pro-choice advocates.
Five members of the Court—including Chief Justice John Roberts—held that the statute was unconstitutional. Rather than deferring to the state’s purported intent of protecting pregnant patients’ safety, these five justices considered the obstacles to abortion created by the law and the health consequences of curtailed access that follow. The Court’s four most conservative members—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—dissented.
Justice Stephen Breyer wrote the main opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Reiterating the factual findings of the District Court’s six-day trial on the law’s constitutionality, Breyer held that the Louisiana statute imposed an “undue burden,” a standard established by the 1992 ruling in Planned Parenthood v. Casey.
Breyer’s opinion concluded that the law jeopardized women’s health by limiting access to safe abortion. Patients located in the northern part of Louisiana would have to travel over 300 miles to reach the state’s sole provider. Because the state requires an ultrasound and a counseling session 24 hours before an abortion, many patients would either have to make two trips or find (and fund) overnight accommodation. Limiting the availability of services and increasing the distance between providers means not only “longer wait times for appointments [and] increased crowding,” but also difficulties with “affording or arranging for transportation and childcare.” In Breyer’s opinion, these cumulative costs and resultant health risks would “fall disproportionately on poor women, who are least able to absorb them.” Indeed, most people who seek abortion in Louisiana are poor; as the third poorest state in the country, one in five Louisiana residents live in poverty. Many have no health insurance or rely on Medicaid, which does not cover most abortions.
Despite previously dissenting in Whole Women’s Health v. Hellerstedt—a 2016 ruling that struck down an almost identical law in Texas—Chief Justice Roberts concurred in the judgment. He emphasized that respect for precedent and stare decisis required invalidating the Louisiana law, but wrote separately to disagree with Breyer’s application of the undue burden test.
Though Roberts’s concurring opinion yields an immediate sigh of relief, it should nonetheless worry pro-choice advocates. Roberts, who now seemingly wields the swing vote on abortion, argued that the Court need only consider precedent and burden, not impacts on health. According to Roberts’s concurrence, a state can pass an abortion restriction without considering how it might affect women's health, so long as it does not establish a “substantial obstacle” to services. Courts need not balance benefits against burdens under Roberts’s interpretation of the Casey test. Rather, his opinion shifts consideration away from whether the law in any way accomplishes the state’s purpose of protecting health, toward the law’s effects as established at trial.
Still, there may be an underappreciated promise in Roberts’s concurrence. Like Breyer, Roberts referred to a body of evidence that demonstrates how substantial obstacles to abortion care hurt people’s health.
Roberts’s opinion neither shields constitutional abortions rights from future attacks, nor signals his willingness to strike down other abortion restrictions under different facts. Still, there may be an underappreciated promise in Roberts’s concurrence. Like Breyer, Roberts referred to a body of evidence that demonstrates how substantial obstacles to abortion care hurt people’s health. In Whole Woman’s Health, the Court described the “common sense” of supply and demand for abortion services. In June Medical Services, the link between clinic access and health outcomes drew on more than just common sense; the Court relied on evidence that highlighted the financial, social, and practical burdens of delayed or denied abortion care.
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Health research over the last two decades has detailed the ramifications of closing abortion clinic doors. But for this research to make a difference, the Court must treat it as more credible than views on abortion which are merely doctrinaire. Had the Court, for example, deferred in June Medical Services v. Russo to the dubious justifications offered by lawyers representing Louisiana and conservative amicus briefs, the decision would have invited lower courts to accept states’ anti-abortion policies as plausible health protections without considering the realities of the law’s application. The decision in June Medical Services v. Russo suggests that at least four members of the Court, perhaps accompanied by Roberts, will prioritize public health evidence over the ideology of state legislators. In the midst of the COVID-19 pandemic, fact-based assessment of law’s lived effects has never been more critical, as courts are called upon to assess the reasonableness of states’ health measures and elucidate which are intended solely to undermine constitutional rights.
However, it would be a mistake to trust that all judges will scrutinize relevant health data. One need only look to a case handed down earlier this week, Little Sisters of the Poor v. Pennsylvania, wherein the Court permitted employers to opt out of covering contraception costs under the Affordable Care Act if they had moral, or religious, objections. The Court ignored a body of evidence that directly associates long-term health with the ability to afford contraceptives.
The decision in June Medical Services v. Russo suggests that at least four members of the Court, perhaps accompanied by Roberts, will prioritize public health evidence over the ideology of state legislators.
It is no secret that judges are as prone to ideology as legislators. Conservative judges are rarely unfaithful to states’ attempts to restrict abortion access. In April and May, five federal appellate courts reviewed state actions that rendered abortion a nonessential medical service and suspended abortion care. The decisions were mixed. Two courts deferred to the states and three courts struck down the suspensions. The Court of Appeals for the Fifth Circuit upheld the Texas executive order barring all abortion, including medication abortion. Citing a Supreme Court case decided in 1905, the Fifth Circuit held that a court may not “second guess” state regulations passed in response to a public health emergency. The Eighth Circuit, repeating the Fifth Circuit’s reasoning, upheld Arkansas’s abortion suspension and rejected evidence that the order did nothing to conserve scarce health resources or impede the circulation of COVID-19. Both courts dismissed the consequences of inaccessible abortion—travel burdens, self-managed abortion, and carrying an unwanted pregnancy to term—as “policy” considerations inconsequential to the legality of the orders. Given the rampant spread of the virus in states like Texas, one could imagine a new executive order that might come before the Supreme Court in the months ahead.
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Looking beyond the pandemic, lower courts, such as the district court in June Medical Services v. Russo, need to better articulate the burdens imposed by abortion restrictions. One hope is that June Medical Services v. Russo will encourage open-minded judges, the numbers of which have dwindled given recent appointments to the bench, to consider how abortion restrictions exacerbate existing health disparities—how legislation creates and then embeds inequality. To be sure, health outcomes align almost perfectly with income: those making the least money have the worst health results, and those making the most have the best. The Supreme Court, though, has typically steered clear of acknowledging how law entrenches poverty. One need only read the Court’s decisions to uphold bans on state and federal abortion funding to see that resistance.
By acknowledging that abortion restrictions affect broader health outcomes, the Court might encourage striking down laws that not only close clinic doors, but attack those that are already overburdened.
The June Medical Services v. Russo decision at least considered the disproportionate harm the Louisiana statute exacted on poor women. Yet, in spite of the fact that people of color comprise two thirds of abortion patients in Louisiana, the decision made no mention of race. That rural women face particular logistical problems was also ignored, even as the Court noted general obstacles associated with travel. And, somehow, the pervasiveness of gender inequality earned no mention. This is not because these issues were absent from the record before the Court. The evidence was all there.
A Court opinion that highlights how profound inequalities—from race to gender—intensify the burden of abortion restrictions could vitalize the undue burden test. The health disparities that abortion restrictions exacerbate are the root of longstanding systemic inequalities in the allocation of health resources. These inequalities touch every part of a person’s life. Constitutional standards that recognize this reality might make it difficult for states to claim to protect health while, in reality, undermining it. Perhaps more importantly, by acknowledging that abortion restrictions affect broader health outcomes, the Court might encourage striking down laws that not only close clinic doors, but attack those that are already overburdened. Here, health research can illuminate the deep inequalities that demand rectification.
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