Hijacking Women’s Health.

On February 7, 2019, in June Medical Services v. Gee, the US Supreme Court temporarily prevented enforcement of a Louisiana law requiring physicians who perform abortions to obtain admitting privileges at a hospital within 30 miles of their practice. (Physicians already have arrangements with doctors who have such privileges in the rare case of an emergency.) Like other states with Targeted Regulation of Abortion Providers (TRAP) laws, Louisiana argued that the law was enacted to protect women’s health.

In 2016, however, the Supreme Court struck down a nearly identical Texas law in Whole Woman’s Health v. Hellerstedt, because it violated a woman’s right to decide to terminate a pregnancy. While states have a legitimate interest in ensuring the safety of medical procedures, the court found that the privileges requirement offered no medical benefit. Rather, it left thousands of women with no realistic access to abortion services. Quoting its 1992 decision in Planned Parenthood v. Casey, the court said 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.”

If, as expected, Gee returns to the Supreme Court, the question will be whether there will be at least five justices who will still demand that states restricting abortion access prove that a law actually makes medical care safer—that its medical benefits outweigh the burdens on women. In Hellerstedt, the court tacitly acknowledged that women’s health was a pretext used to force the closure of facilities providing abortion. The same is true in Louisiana.

Hospital admitting privileges are unnecessary and rarely available to abortions providers. Not only is abortion controversial, but few hospitals want to monitor outpatient physicians who don’t admit anyone to the hospital (because abortions are safe outpatient procedures). Moreover, if a patient needs hospitalization after an abortion procedure, she is likely to be far from her abortion provider.

In Gee, the federal district court also concluded that the Louisiana law “does little or nothing for women’s health” and would “cripple women’s ability to have an abortion.” One of the only four physicians who perform abortions in Louisiana had obtained privileges; the others were unlikely to do so. Therefore, the district court barred enforcement of the law pending a future decision on the merits of the constitutional question. The Fifth Circuit Court of Appeals reversed and let the law take effect.

Chief Justice Roberts, who dissented in Hellerstedt, surprised many by joining the 5 to 4 majority reversing the Fifth Circuit’s decision and halting enforcement of Louisiana’s law while the case moves through the lower courts. Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to deny the stay. Kavanaugh argued that law could take effect without causing harm, since physicians would have a 45-day transition period to try to get admitting privileges. He dismissed the district court’s conclusion that the physicians were not likely to get privileges as merely a “prediction.” But his opinion was also a prediction—one belied by experience.

TRAP laws are designed to reduce or eliminate abortions. As long as women have a constitutional right to decide to terminate a pregnancy, abortion opponents seek to make abortion as difficult to access as possible. They cloak their goal with the pretext of protecting women’s health.

The Hellerstedt court took women’s health seriously. Will today’s court stick to that precedent?  Justice Kennedy was in the 5–3 majority in Hellerstedt. Justice Gorsuch then joined the court, and Kavanaugh replaced Kennedy. Justices Thomas and Alito dissented in Hellerstedt, suggesting that a law need not actually protect women’s health as long as it claims to do so. They prefer not to look behind the curtain for the legislators’ real goals. Their approach avoids confronting a law’s real-world consequences, especially for low-income and vulnerable populations.

Chief Justice Roberts joined Alito’s dissent in Hellerstedt. So, why would he stop Louisiana’s law, even temporarily? The Chief Justice must worry that an abrupt reversal of precedent could damage the court’s credibility as an independent institution of principled justice. If a change in personnel can dramatically change constitutional law, then the court will be seen to be as political as Congress and the executive branch. (Many people already think that.) In that case, why have the court at all?

The challenge the Louisiana law presents goes well beyond abortion. It challenges how constitutional rights are defined and protected, and which institutions should make those decisions. As the likely deciding vote in contentious cases, Roberts can answer those questions. If he hopes to salvage the court’s integrity, he should continue to recognize that constitutional rights cannot be trampled on the pretext of protecting women’s health.

SPH will host its annual Cathy Shine Lecture on March 5. Lynn M. Paltrow, founder and executive director of the National Advocates for Pregnant Women, will speak on “The ‘Other’ Problem in the Quest for Pregnant Women’s Personhood.” The event is cohosted with the School of Law.

Wendy Mariner is the Edward R. Utley Professor of Health Law.