In June, when the Supreme Court issues a decision in the Louisiana abortion case it heard this week, it is quite likely to be bad news for abortion rights in this country. June Medical Services, L.L.C., v. Russo involves a challenge to a Louisiana law that, by requiring all doctors who perform abortions to have admitting privileges at nearby hospitals, would drastically reduce the number of service providers in the state. If the issue sounds familiar, that’s because it is: in 2016, the Court considered—and overturned—a strikingly similar law, from Texas, concluding that it imposed an “undue burden” on women seeking abortions, without conferring a medical benefit. But that was a different Court: it had a swing justice, Anthony Kennedy, who sided with the liberal bloc in the Texas case, Whole Woman’s Health v. Hellerstedt. The ruling broke 5–3; Justice Scalia’s seat had not yet been filled, and Chief Justice Roberts voted with Justices Thomas and Alito to uphold the law. This time around, the stakes are higher and the politics more jagged: on Tuesday, Roberts issued an unusual statement accusing Senator Chuck Schumer of making “threatening statements” after Schumer, speaking before a pro-choice rally outside the Court, said that Justices Gorsuch and Kavanaugh had “released the whirlwind” and they “won’t know what hit you, if you go forward with these awful decisions.”
The best that abortion-rights proponents can hope for this time around is that Justice Roberts’s institutionalism will kick in. The Court is weighing a ruling by the Fifth Circuit Court of Appeals that upheld the Louisiana law and, in so doing, flouted the Supreme Court’s precedent in the Whole Woman’s Health case, which had been set less than three years before. Roberts doesn’t love rewarding that kind of norm-defying chutzpah—and that alone could incline him toward respecting stare decisis, and invalidating the Louisiana law.
The second-best case would be a narrow ruling upholding the law, but crafted to apply only to Louisiana. On Wednesday, during the oral arguments in June Medical Services, Justices Roberts and Kavanaugh both seemed to be trying that solution out, when they each asked the lawyer for the abortion clinic, Julie Rikelman, whether, in her view, admitting-privilege laws were always unconstitutional, or whether it made sense to “look at the facts,” in Kavanaugh’s words, “state by state.” (Rikelman pointed out that the facts in this particular case are rough on a woman seeking an abortion in Louisiana—if she lived in the Baton Rouge area, she’d have to go “three hundred and twenty miles back and forth” to New Orleans to see a physician who could help her, because of the state’s two-trip law. Moreover, Rikelman said, laws like these generally serve no valid state interest.)
The worst scenario would be if the Court simply threw out the “undue burden” standard that it established in Casey v. Planned Parenthood in 1992 and reinforced with Whole Woman’s Health, and which has provided a bulwark against the erosion of abortion rights. Such a ruling would have the bracing advantage of clarity—reproductive-rights proponents would know where they stood with the Court. But it would also mark the beginning of a new era, in which all the Court’s abortion jurisprudence, even Roe v. Wade, would be at risk.
In one important way, though, such a ruling would not be quite the unmitigated catastrophe for reproductive rights that it might have been even a year or two ago. After decades during which anti-choice groups concocted almost all the state laws governing abortion rights—coming up with ever more inventive ways to restrict them—the pro-choice side has been getting its own laws passed. In 2019, nine states enacted thirty-six measures to protect and expand access to abortion—more such legislation than had been enacted in the previous decade, according to an analysis by the Guttmacher Institute.
The new laws affirm a fundamental right to abortion, but also, and perhaps more important, help in practical ways to insure that it is made available. Illinois and New York passed sweeping Reproductive Health Acts that, among other provisions, require all public and private health-insurance plans to cover abortions, and to permit physicians’ assistants and advanced-practice nurses to perform the procedure. Maine also enacted a law allowing such health practitioners to provide abortions, a measure that, Governor Janet Mills said, when she signed the bill, would help guarantee that “Maine women, especially those in rural areas, are able to access critical reproductive-health-care services when and where they need them from qualified providers they know and trust.” California enacted a law that will require the state’s public-university system to offer medical abortion services on all its campuses starting in 2023. (A bill pending in Massachusetts would do the same thing for its state-university system.) Nevada’s legislature lifted a tendentious requirement that those seeking abortions be told about the “physical and emotional implications” of the procedure.
体育投注平台Carole Joffe, a sociologist at U.C. San Francisco who studies and advocates for reproductive rights, told me that she thinks all these laws are symbolically, as well as instrumentally, important. “The pro-choice movement has been on the defensive for so long, battered by restrictions,” Joffe said. “It would be easy to fall into despair, and it is a very serious situation. But the fact that the pro-choice side has finally gotten the message that you have to be practical, proactive, and get legislatures to do the right thing, is really significant, especially if that trend continues.”
One upshot of the trend is a particularly American jurisdictional weirdness, an extreme skew between states (mostly in the West and the Northeast) that are building up abortion rights, and states (mostly in the South and the Midwest) that are placing more and more limitations in them—in some states, outright bans on abortions after six weeks, or, in Alabama, in almost all cases. (These laws are being challenged in the courts.) We may be looking at a future in which increasing numbers of those seeking abortions in states with more draconian laws will have to travel to obtain them. Mary Ziegler, a law professor at Florida State University, whose book “Abortion and the Law in America: Roe v. Wade to the Present” is forthcoming, told me, “The most significant new state laws will not only have a major effect on those states but on regions of the country. Cross the Missouri river in St. Louis—and you’re in East St. Louis, in Illinois. A lot of women in Missouri will be going to Illinois.”
States that are less punitive than the states that they border—even red states, such as Florida, or Kansas, whose Supreme Court last year upheld the right to abortion under its state constitution—will likely play an increasingly important role in sustaining the freedom to choose. (The Kansas ruling’s language had a clarion ring: citing the state’s guarantee of inalienable rights to its citizens, the court asked, “Is this declaration of rights more than an idealized aspiration? And if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, “Yes.’ ”)
Yet many of those who must travel a long distance to reach what David Cohen, a law professor at Drexel University, described to me as “abortion-haven” states, will face insurmountable economic and logistical difficulties. He and Joffe point out in a new book, “,” that many are already unduly burdened when they try to get this particular medical procedure, not least because half of those seeking abortions live below the federal poverty line, and “a quarter of abortion patients have no health insurance at all.” Last year, two cities—New York and Austin—created funds to help those who cannot afford it pay for transportation, child-care costs, and a place to stay, if they travel to those cities to get an abortion.
Last year, more states tightened their abortion laws than liberalized them—seventeen, compared to nine. Still, those states that are shoring up abortion rights are effectively assuring one thing: if the Supreme Court does steadily chip away at reproductive rights—and even, perhaps, overturns Roe—there will still be places in this country to get a safe, legal abortion.