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High Court Hears Its First Abortion Case with Trump Appointees

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High Court Hears Its First Abortion Case with Trump Appointees

The state of Louisiana, with nearly one million women of reproductive age, now has only three abortion clinics. A woman who chooses to have an abortion — as about a quarter of American women do — must make her way to one of those facilities, where she will be legally required to sit through counseling intended to discourage her from having the procedure as well as an ultrasound that must be shown and described in detail to her. She then must wait at least 24 hours before returning to the clinic for the procedure. If she is a Medicaid patient, her bill will likely be hundreds of dollars paid out of pocket.

As daunting as these hurdles are, the outcome of a soon-to-be-heard Supreme Court case out of Louisiana could erect even more, and not just for the women in that state. The right to have an abortion, which exists in name only in some areas of the country, could soon be even further whittled away — and the justices could do so without overturning Roe v. Wade. The case’s outcome could also upend how reproductive rights cases are litigated, making it harder to fight other anti-abortion laws in the future.

June Medical Services v. Russo, which will be heard at the Supreme Court on Wednesday, centers on a Louisiana law that’s expected to force the closing all but one of the state’s abortion clinics. The law requires that abortion providers jump through the medically unnecessary — and, for some, impossible — hoop of securing admitting privileges at a hospital near their clinic.

More than 450 similarly burdensome laws — known as TRAP, or targeted regulation of abortion providers — have passed in states nationwide over the past decade, closing scores of clinics in the name of protecting women’s safety. It’s a confounding rationale — people are generally made safer with more access to health care, not less. And abortion in particular is one of the safest medical procedures there is. Patients are more likely to land in the hospital after having their wisdom teeth removed than they are after an abortion, and they’re 14 times more likely to die during childbirth.

Concealing an anti-abortion agenda under the guise of efforts to protect women’s health has been an effective legal strategy, though some of those TRAP laws have been successfully challenged in court. Less than four years ago, the Supreme Court struck down a hospital admitting privileges law in Texas. In fact, the Louisiana and Texas laws are more or less identical. Louisiana lawmakers copied the Texas legislation after seeing how effective it was at closing clinics.

The 2016 Supreme Court decision in Whole Woman’s Health v. Hellerstedt didn’t undo all the damage that has been done to Roe v. Wade in recent years, but it reaffirmed that the right to abortion is meaningless without access. The court found that Texas’ law placed an undue burden on women trying to exercise a constitutional right — in other words, that it’s unreasonable to expect women to drive hundreds of miles to get a medical procedure.

What changed in so few years to make the Supreme Court want to relitigate its own recent precedent? One thing: the makeup of the court. Thanks to President Trump’s two additions to the bench, Brett Kavanaugh and Neil Gorsuch, a majority of justices are now presumed to be hostile to abortion rights.

Lawyers representing Louisiana argue that their law should be considered separately from Texas’ because the two states are fundamentally different. There they have a point — there are relevant differences between Texas and Louisiana. For instance, Louisiana has fewer abortion clinics per capita than its neighbor to the west and higher rates of women living in poverty. As a result, the law would have an even more severe impact in Louisiana than it did in Texas.

In fact, the law could prevent some 70 percent of women in Louisiana from being able to get an abortion in the state. A Federal District Court found as much in an exhaustive 2017 decision that permanently blocked the Louisiana law. That decision was then overturned in a remarkable move by the Fifth Circuit Court of Appeals, paving the way to this high court battle.

It’s too early to know how the Supreme Court will rule: Chief Justice John Roberts could join his more liberal colleagues and vote to summarily reverse the Fifth Circuit decision, effectively saying that the case never should have made it to the court. That would be a just outcome.

But the fact that the justices decided to hear the case at all suggests that their decision won’t be so definitive. Instead, the court could determine that the Louisiana law is different from the Texas law, effectively eliminating the concept of an “undue burden.” Among other results, this could open the door to conservatives arguing, successfully, that it’s constitutional for a state, or even a whole region of the country, to have zero abortion clinics.

ImageProtesters chanting on the steps of the Louisiana State Capitol in Baton Rouge after a Planned Parenthood sit-in last May.
Credit…Emily Kask for The New York Times

In such a scenario, there would be no splashy headlines declaring the end of Roe v. Wade because Roe would technically remain intact. This might sound like a minor concern given all that’s on the line, but it matters. There was a huge public outcry last year when Alabama, Georgia and several other states passed laws banning all or nearly all abortions. These bans were brazen, and their intention straightforward — and people understood them. Companies threatened to stop doing business in those states, and celebrities encouraged boycotts. There were T-shirts and social media campaigns. All of those bans have been blocked by the courts.

Lower-profile reproductive rights restrictions receive far less attention. For instance, last year the Trump administration took a sledgehammer to the nation’s family planning program, making it harder for poor women across the country to get birth control and cancer screenings. That was achieved through changing arcane federal regulations — not the sort of news that lights up social media feeds and makes people snap to attention.

Overturning Roe v. Wade, a step that the majority of Americans have long opposedwould be that sort of news. So stopping just short of destroying Roe has long been an unspoken tenet of the anti-abortion movement’s strategy. Better to quietly chip away at Roe, the thinking goes, than to rip it away at once.

The June Medical Services case offers that opportunity. But the case could do even more damage by undermining a legal concept known as third-party standing. Third-party standing is the reason pregnant women don’t have to personally file a lawsuit when their state passes an abortion law that tramples on their rights — an abortion clinic, which has more resources and is better prepared for a yearslong legal battle, can sue on its patients’ behalf. The Supreme Court has upheld the use of third-party standing in abortion cases for decades. This makes sense. After all, the fate of both patients and clinics are at stake in such cases.

The lawyers for Louisiana will argue before the court that the case’s plaintiff, a Shreveport abortion clinic represented by the Center for Reproductive Rights, does not have legal standing because abortion clinics do not have their patients’ best interests at heart. It’s an absurd argument, meant to paint abortion providers, falsely, as money-grubbing opportunists who endanger — rather than advance — women’s health.

If the justices were to agree with Louisiana’s claim, they could imperil the future of reproductive rights litigation. It’d be a sly way of rolling back women’s rights by limiting their access to the legal system. Combined with the proliferation of TRAP laws and other anti-abortion measures, millions more American women would be left with a constitutional right that they’re not able to exercise — which is to say, no real right at all.

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