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Context and Background – Access to abortion leading up to June Medical

Access to safe, legal abortion has been under attack across the country for decades as states continue to erode the promise of Roe v. Wade with medically unnecessary restrictions. Since 2011 alone, anti-abortion politicians across America have pushed through nearly 450 restrictive state laws to severely reduce access to care. Worse yet, after the Trump Administration succeeded in appointing two vehemently anti-choice justices to the Supreme Court of the United States, shifting the balance of the court, many states have and continue to pass trigger laws to prepare to effectively ban abortion.

Trigger laws are designed to take effect should Roe be overturned and ban abortion in those states outright.  Other states have pre-Roe bans still on the books and/or unconstitutional restrictions on abortion that have been blocked by the courts that would come back into effect should Roe be overturned. And in the world of COVID 19, anti abortion politicians in many states have decided to exploit the pandemic by using it as an excuse to take anti-abortion measures that restrict access to safe, legal abortion care. This shows that anti-abortion politicians will stop at nothing to shut down access to essential reproductive healthcare, including abortion care, and even go as far as target providers and patients’ ability to get time-sensitive healthcare during a pandemic.

We know, however, that even if Roe isn’t outright overturned, decisions that further erode it’s protections will inevitably lead to a greater inability for people across the country to access access abortion in states with governments hostile to reproductive rights. in addition of the trigger laws mentioned above that would outright ban abortion, other states have unconstitutional restrictions that would limit care or laws that would create the maximum restrictions possible under future Supreme Court rulings. We also know that even without changing the status quoaccess to care is not equitable; income, race, zip code, gender, immigrant and insurance status and other socio-economic factors have a huge impact on whether a patient is able to access timely necessary reproductive healthcare including abortion care. Restrictions on abortion like medically unnecessary waiting periods, forced ultrasound requirements and restrictions on insurance coverage of abortion care only exacerbate these disparities.

There and back again – Whole Woman’s Health and June Medical.

Four years ago, the U.S. Supreme Court took an affirming step in support of access to safe, legal abortion care in Whole Woman’s Health v. Hellerstedt. In that case, the Court ruled that two provisions in a Texas law place a constitutionally impermissible obstacle in the path of patients seeking an abortion. They include requiring physicians who perform abortions care to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center. The Court ruled that these provision place a substantial obstacle in the path of women seeking an abortion and constitute an undue burden on abortion access, and therefore violate the Constitution.

The state of Louisiana defied the Courts order in enacting and enforcing Act 620, a law that would prevent doctors from providing abortion services without obtaining admitting privileges at a hospital within 30 miles of where they provide care. If it sounds familiar, that is exactly the same kind of provision ruled unconstitutional in Whole Woman’s Health in 2016.

June Medical Services LLC v. Russo

Louisiana is a state with already restricted abortion access. The state of 4.6 million people has just three abortion clinics—down from seven in 2011, and a plethora of abortion restrictions like the 24 hour waiting period and forced ultrasound requirements which push abortion access out of reach of many. Louisiana is also one of the states where abortion would face an outright ban should the Supreme Court rule that abortion is not a constitutionally protected right or severely gut its status as a right. The admitting privileges law would force the closure of two more clinics, leaving only one abortion provider in a state with approximately one million women of reproductive age.

Act 620 has nothing to do with patient safety or public health, it is yet another effort by the anti-abortion movement to close down clinics and eradicate abortion care.

June Medical Services Case Timeline

  • In 2014, the Center for Reproductive Rights filed a lawsuit to challenge Act 620 on behalf of June Medical arguing that the law was unconstitutional.
  • The U.S. District Court in Louisiana granted a request to temporarily block the law from being enforced and following the decision in Whole Woman’s Health declared the law unconstitutional in April 2017.
  •  Louisiana appealed the decision to the Fifth Circuit, which reversed the District Court decision on September 26, 2018 on a 3 judge panel decision, denying the request to have the case heard by the full appeals court.
  • The Center requested an emergency stay from the Supreme Court as it filed a writ of certiorari to hear to case. The Supreme Court granted the stay in february 2019 and granted certiorari on October 4, 2019.
  • The Court heard oral arguments on March 4, 2020 and the decision is expected before the end of the Court”s 2020 June term. To hear the March 4 argument click here.

Questions under consideration in June Medical

  • Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s admitting privileges law conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.
  • Whether abortion providers can have third party standing to sue the challenge abortion restrictions on behalf of their patients.

Potential consequences of June Medical SCOTUS Ruling:

  • If the Court finds that Louisiana’s laws are constitutional, that will embolden other states to pass additional restrictions and will hinder the ability of patients to challenge restrictions in the lower courts. The federal bench has already been packed with anti-abortion judges by the Trump administration with the consent of the Senator Majority Leader McConnell – controlled Senate, so any erosion or perceived erosion of protection will lead to many decisions in the federal District and Appellate courts upholding restrictions and eroding access.
  • If the U.S. Court finds that abortion providers cannot sue on behalf of their patients, it will become extremely difficult to challenge restrictions in court because many patients are not able or willing to be part of a federal lawsuit that might drag on for years. Patients want timely compassionate medical care, not to be embroiled in a multi-year federal lawsuit. For more on the third party standing question, read here.

This is the first major abortion case to hit the Supreme Court after its composition was changed by the Trump Administration. The addition of Trump’s appointees to the Supreme Court, Justices Kavanaugh and Justice Gorsuch,  make it unlikely that the anti-abortion conservative majority (with Justices Roberts, Alito and Thomas) will deliver a clear win for abortion rights. Return to this page for an explanation of the decision when it is published by the Court.

For more in-depth information about June Medical Services LLC v. Russo, see the page from the Center for Reproductive Rights, the attorneys in this case, and SCOTUSblog pages here and here.

Decision Announced June 29, 2020

HUGE WIN for Abortion Rights

In a 5 to 4 decision, the Supreme Court reversed the 5th Circuit decision on Act 620 and ruled that the Act is unconstitutional:

The plurality’s opinion written by JUSTICE BREYER, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR,
and JUSTICE KAGAN holds:

1. The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of
the plaintiffs’ undue-burden claims and a long line of well-established
precedents foreclose its belated challenge to the plaintiffs’ standing in
this Court. Pp. 11–16.
2. Given the District Court’s factual findings and precedents, particularly Whole Woman’s Health, Act 620 violates the Constitution.

Justice ROBERTS joined in the decision. BREYER, J., announced the judgment of the Court and delivered an
opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment. THOMAS, J., filed
a dissenting opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined, in which THOMAS, J., joined except as to Parts III–C and
IV–F, and in which KAVANAUGH, J., joined as to Parts I, II, and III. GORSUCH, J., and KAVANAUGH, J., filed dissenting opinions.

 

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