Beyond June Medical and Roe v. Wade
Chancellor’s Professor at the University of California, Irvine
In 2019, the United States Supreme Court decided to take up June Medical Services v. Russo, a case that contested the Court’s 2016 ruling in Whole Woman’s Health. June Medical involved a Louisiana admitting privileges law virtually identical to the Texas law the Supreme Court struck down as unconstitutional only a few years prior. In many ways, the case represented a challenge to the Court’s authority and its commitment to the rule of law. It would be the last abortion case that Justice Ruth Bader Ginsburg would hear and cast a vote on before her death on September 18, 2020.
Preface: Remembrance of Justice Ruth Bader Ginsburg
This inquiry about abortion rights in the most recent Supreme Court term is all the more salient in the wake of Justice Ginsburg’s recent passing on September 18, 2020. An indefatigable legal champion of women’s equality, her jurisprudence will surely be the subject of sustained legal interpretation and analysis in the years to come. Of particular note, she powerfully articulated what the threat to reproductive independence means in the lives of women, especially vulnerable women, including limiting their full participation in society. She understood that by constraining women’s abilities to be full in their personhood, lawmakers chipped away at their humanity. Denying women control over their reproductive health—whether to maintain a pregnancy or terminate it—infringed not only on legal rights, but also on their human dignity.
Justice Ginsburg was also deeply aware of the violence situated alongside the call for reproductive autonomy and independence—both state and private violence. She recognized the violence and inhumanity in the state imposing conditions that constrain women’s reproductive health decisions. In Whole Woman’s Health, she wrote in concurrence, “[w]hen a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”[i] Meanwhile, she was mindful of the private threats that could be (and too frequently are) visited upon women by boyfriends, husbands, employers, and in the contexts of reproductive health, anti-abortion activists.
As I penned the closing chapters of Policing The Womb: Invisible Women and the Criminalization of Motherhood[ii] in 2019, the Supreme Court prepared for its next term—one that would include June Medical Services v. Russo.[iii] As the book came to its end, I grew exhausted by the many examples of both state and private violence inflicted on women over time: marital rape; permissive beatings; infringements on contraceptive access; provisions undermining the abortion right; and much more. These impediments to women’s full equality were reflected in legislation and court decisions. Sadly, women’s inequality has most often been secured and maintained with the force of law. Justice Ruth Bader Ginsburg knew this.
Justice Ginsburg took seriously the human dignity of women and girls, and her jurisprudence represented that. She understood the myriad ways in which state violence—physical, economic, and psychological—undercuts women’s potential and undermines their safety, liberty, equality, autonomy, and privacy. She believed that women’s reproductive liberty was central to their full personhood. And she valued the need for law in dismantling the vestiges of centuries of oppressive common law, legislation, and more that constrained the foundational aspirations of the Constitution in women’s lives. Justice Ruth Bader Ginsburg used the power within her reach to elevate women’s equality. An indefatigable warrior on behalf of all peoples, but fearlessly on the side of women, has passed.
This Essay addresses the recent United States Supreme Court 5‒4 decision in June Medical Services v. Russo. In this case, Louisiana’s Unsafe Abortions Protection Act required doctors who perform abortions to have admitting privileges at nearby hospitals. On their face, such laws appear to be content neutral and have as their goal furthering the safety of the procedure—and not eliminating the abortion right. However, the spate of such laws in the last decade raises quantitative and qualitative questions related to their scope, scale, the number of abortion clinics that have shuttered in their wake, the significant delays caused to patients who seek abortions, whether they serve the purpose of burdening abortion rights, and even whether such laws ultimately contribute to increases in unwanted childbirths and maternal mortality.
June Medical reflects the ongoing challenge to abortion rights generally, and specifically those that are masked by legislation that purports to protect pregnant women. Since 1992, states have enacted hundreds of laws that claim to reasonably relate to the protection of pregnant women, including mandatory ultrasounds, waiting periods, and compulsory counseling, as well as laws that relate to facilities and impose strict requirements and restrictions on doctors. Particularly worrisome are the mandated counseling requirements, which force doctors to provide misleading information to their pregnant patient, including disproved information that abortion causes mental illness, cancer, and infertility. Even while medical organizations refute such claims, the Supreme Court has not struck down a mandatory counseling law.
The stakes were high in June Medical and remain so, especially as the anti-abortion strategy has shifted to include intensifying regulations targeting abortion providers, including nurses, doctors, and clinics. In recent years, hundreds of targeted regulations of abortion providers (TRAP laws) and other provisions have been introduced and enacted by state legislatures, imposing numerous constraints on the providers rather than directly on the pregnant person. These laws impose conditions related to the facility (size, location, equipment), mandated board certifications, required transfer agreements with local hospitals, require that abortions be performed in hospitals, and more. As a tactical matter in the effort to eliminate abortion rights, this strategy avoids the claim that the abortion provision targets the pregnant person and undermines her abortion right. Thus, the strategy also avoids triggering the protections accorded in Roe v. Wade[iv] and Planned Parenthood v. Casey.[v] Finally, when such laws have been challenged by doctors, including in June Medical, opponents claim they lack standing.
This Essay proceeds in three parts. Part I addresses abortion rights, social norms, and the status of women. It begins by briefly making the argument that review of June Medical, and the Court’s legacy in addressing abortion rights, should first begin by centering the historical legislative and judicial treatment of women generally. In other words, a proper foreground to a discussion on abortion rights requires understanding law’s role in subordinating women and legitimizing violence against them. Part II turns to the anti-abortion playbook. It argues that one of the lessons learned from June Medical Services is the power of the anti-abortion playbook. The anti-abortion playbook’s key features includes drafting model laws for enactment in legislatures across the country. As in June Medical, this causes the repeat play of legislation already determined unconstitutional by the Supreme Court. Part III then briefly considers the future of abortion rights.
I. Abortion, Social Norms, and the Status of Women
The battle over reproductive rights, women’s autonomy, and reproductive healthcare and decision-making has always been about much more than simply women’s health and safety. Instead, historically, male authority, power, and dominion over women’s reproduction historically served political purposes that framed women’s capacities and the span of their rights almost exclusively as service to men: as a good wife to a husband;[vi] as mother and caregiver to a man’s children;[vii] as a conduit to male reproduction;[viii] as a whipping post;[ix] and as sexual chattel.[x]
For example, tort law carved out specific remedies for husbands who suffered the loss of their wives’ servitude and sex under the loss of consortium cause of action. The law derives from the legal premise that the husband is the master of the wife. Thus, when wives suffered a physical injury, husbands could file suit against third parties for the “loss” of their wives’ servitude, companionship, and sex. Courts permitted marital rape under spousal immunity doctrine and upheld state legislation barring criminal punishment for marital rape. American courts interpreted domestic violence under the notion of “gentle restraint,” thereby permitting men to exercise aggression on their wives, including beatings with whips and other materials so long as they were generally not wider than his thumb. Ergo the rule of thumb.
Notably, even after constitutional evaluation of American personhood through ratification of the Thirteenth and Fourteenth Amendments, legislatures insisted that many women were unfit for full social inclusion. Legislatures denied women suffrage based on the fiction that women lacked the complexity of mind, reason, and judgment to cast a vote.[xi] Legislatures debated whether a woman’s vote would essentially impute to her husband.[xii] The Supreme Court deferred to state legislatures on this sophistry and solidified women’s political subordination by ruling in Minor v. Happersett that although the Constitution granted women citizenship, it did not confer upon them a right to vote.[xiii]
Finally, while the fraught path to securing abortion rights is addressed by prior works,[xiv] it bears briefly acknowledging the pre-Roe landscape. In her landmark work, When Abortion Was a Crime, author Leslie J. Reagan copiously details the deaths and infections that overwhelmed hospitals in New York and Chicago in the years prior to Roe. Reagan writes that by the “early 1960s, [illegal] abortion-related deaths accounted for nearly half, or 42.1 percent, of the total maternal mortality in New York City.”[xv] She explains that in Chicago, “[p]hysicians and nurses at Cook County Hospital,” one of the busiest hospitals in the nation, “saw nearly one hundred women come in every week for emergency treatment following their abortions.”[xvi] Sadly, “[s]ome barely survived the bleeding, injuries, and burns; others did not.”[xvii]
In the years before Roe, hospital emergency wards in major cities across the nation were so completely overwhelmed by girls and women who sought care for “abortion related complications” that they created special secret wards in which to treat them for the burns, infections, uterine tears, poisonings, and the myriad near-death conditions resulting from trying to end a pregnancy. These back-alley abortion complications, including deaths, were not isolated. Rather, they affected “[t]ens of thousands of women every year.”[xviii] Deaths were particularly acute among women of color. Sadly, nearly all the deaths, infections, and complications were preventable, because legal abortions are far safer than even childbirth. The World Health Organization (WHO) compares the safety of legal abortions to penicillin shots.[xix] The reproductive health conditions for women who sought abortions dramatically improved after the Supreme Court’s 7‒2 decision in Roe v. Wade.
A. Whole Woman’s Health
This aforementioned legacy calls to mind the importance of historiography in review and evaluation of the Supreme Court’s decision-making in contemporary abortion cases, including Whole Woman’s Health v. Hellerstedt and June Medical v. Russo. As Julie A. Matthei’s important work, An Economic History of Women in America, underscores, “the key to understanding woman’s present and future position . . . lies in history.”[xx] This Essay takes that call to history seriously, including in the immediate past, foregrounding the Court’s decisions in its most recent abortion cases.
In 2013, after heated debate and an ambitious but unsuccessful filibuster, the Texas Legislature enacted House Bill 2 (H.B. 2). The law contained two provisions at issue in the 2016 U.S. Supreme Court case, Whole Woman’s Health v. Hellerstedt:[xxi] mandating doctors who perform abortions to obtain hospital admitting privileges and requiring abortion clinics to meet Ambulatory Surgical Center (ASC) Standards. The legislation represented another tool in the anti-abortion arsenal built and primarily cultivated by male lawmakers. Ironically, Texas lawmakers claimed H.B. 2 and similar laws protected women, preserved their health, and enhanced patient safety. Governor Rick Perry signed the legislation, heralding it as part of the “culture of Texas,” that would make abortion “a thing of the past,” revealing that the true nature of the Texas law was to end abortion access in that state.[xxii]
In 2016, in a 5‒3 decision, the Supreme Court struck down both provisions under review in Whole Woman’s Health: the hospital admitting privileges provision as well as the ASC mandate. In striking down the laws, the Court held that neither law conferred medical benefits that would justify the harms imposed on pregnant women seeking to exercise a constitutional right to terminate a pregnancy. The Court found that the Texas provisions imposed unconstitutional, undue burdens not sufficiently related to the justifications put forth by the state. Further, the Court took special note that the evidence presented before the district court revealed admitting privileges did not advance the state’s interest in protecting women’s health but did place a substantial burden in the path of a woman seeking an abortion by forcing about half of the state’s abortion clinics to close. This additional layer of regulation provided no further protections than those already in place.
For example, the Court found “there was no significant health-related problem that the [admitting privileges] law helped to cure.” In fact, when asked at oral argument “whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment,” Texas admitted there was not one case. This finding mirrored that evidenced in other states.
Writing for the Court, Justice Stephen Breyer took specific note of a particular doctor’s experience. Dr. Sherwood Lynn practiced at the McAllen clinic in Texas. He delivered 15,000 babies during thirty-eight years in practice and “was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic.” Justice Breyer observed that these denials of admitting privileges were “not based on clinical competence considerations.” Rather, hospitals typically allow admitting privileges only if the doctors will generate a sustained clientele to the hospital. Given that abortions are as safe as penicillin shots, on average less than one percent of doctors’ patients would be admitted to the hospitals.
Based on the above evidence, complemented by a robust empirical record, the Court concluded that the two Texas abortion provisions conferred no medical benefits sufficient to justify the burdens imposed on women in Texas. The Court found that the admitting-privileges requirement led to the closures of “half of Texas’ [abortion] clinics . . . .” In other words, protecting women’s health was a duplicitous proxy or pretext for denying women the constitutional right to terminate a pregnancy. The same was true in the case of virtually identical legislation enacted recently in Louisiana at issue in June Medical.
The Court’s Whole Woman’s Health decision was notable for its serious turn to the empirical record. As such, the Court held that judicial review of such statutes need not be wholly deferential to the legislative fact-finding, particularly when the factual record before the district court contradicted it. Relevantly, it was the factual record amassed by the district court on which the majority Supreme Court relied. Indeed, based on the empirical record evaluated at the district court level, the Court concluded the laws were so tangential in relation to pregnant patients’ health and safety as to be “nearly arbitrary.”
Finally, in her concurrence, Justice Ginsburg agreed that “inevitably” if permitted to stand, laws such as the Texas abortion provisions “will reduce the number of clinics and doctors allowed to provide abortion services” even though “many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to the ambulatory-surgical-center or hospital admitting-privileges requirement.”[xxiii] The justice wrote, “[w]hen a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”[xxiv] According to Justice Ginsburg, abortion provisions, such as those at issue in Whole Woman’s Health “that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”[xxv]
B. June Medical Services v. Russo
In what could be interpreted as defiance of the Court and indifference to Whole Woman’s Health, Louisiana’s legislature did not repeal the “Unsafe Abortion Protection Act” or Act 620—its version of the Texas law, which requires “a physician performing or inducing an abortion” to “[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” To place in context the Louisiana legislature’s bold and unusual disregard of stare decisis, imagine that state enacted a separate but equal public school segregation law based on race, in the wake of Brown v. Board of Education’s holding striking down such legislation—based on the dubious notion that the Court’s decision only reached Kansas and not Louisiana.
In June Medical, not surprisingly, both doctors and clinics challenged Louisiana’s abortion provision, securing a permanent injunction at the district court level, which the U.S. Court of Appeals for the Fifth Circuit vacated in June Medical Services v. Gee.[xxvi] Unconvinced that the facts undergirding Whole Woman’s Health applied in Louisiana, the Fifth Circuit lifted the injunction. In doing so, the court brushed aside that more than half the clinics in Texas closed due to the Texas admitting privileges law going into effect, precisely because doctors could not obtain such privileges. The closure of clinics meant that in some cases women traveled hundreds of miles in order to terminate a pregnancy or simply lost access altogether. As the Supreme Court made clear, the Texas admitting privileges bore no relation to physician competency or protecting women’s health, because abortions are safe procedures that nearly never require any form of hospitalization. Given this, what then, was the purpose of the Louisiana law?
In June Medical, the Fifth Circuit engaged in a heightened level of casuistry. The court conjectured that if the Louisiana law went into effect, unlike in Texas, it would not result in the closure of abortion clinics, that driving distances to reach clinics would not increase, and “the cessation of one doctor’s practice will affect, at most only 30% of women, and even then not substantially.” By analogy, imagine a federal court of appeals claiming that a school segregation law affecting only thirty percent of Black students did not contravene Brown nor interfere with the constitutional rights of the students involved. Placing the ruling in the context of race exposes the glaring sophistry in the Fifth Circuit’s analysis, which is not explained by Supreme Court precedent, the factual record, or regard for the health and safety of the women in Louisiana.
However, one need not study either the lengthy taxonomy of separate-but-equal laws creating and enforcing race-based second class citizenship or my hypothetical (comparing Louisiana’s post Whole Woman’s Health procedural posture to rejecting Brown) nor relitigate the shameful horrors of Jim Crow in Louisiana and throughout the American South to recognize the harms it would inflict on Black students in Louisiana if the state were to have challenged school segregation. The vestiges and badges of slavery would be apparent. Indeed, any claims by Louisiana that its version of separate but equal was so factually different such that Brown has no application or relevance would be farcical. The distinctions are irrelevant when the very principle violates the Constitution. Brown did not apply only in Topeka, Kansas.
Thus, Louisiana’s abortion provision and its assertion that the Court’s findings and ruling in Whole Woman’s Health did not apply to its state must be understood not only within its legal contexts (as a rejection of constitutional law and stare decisis), but also for its cruel and unusual application. As empirical research shows, a woman is fourteen times more likely to die in childbirth than by having an abortion.[xxvii] Sadly, given that “women in Louisiana die more often from pregnancy than in other states,”[xxviii] such cruel laws can amount to a death sentence, especially for the women most affected, who happen, in Louisiana, to be poor women, especially women of color. Most notably, the maternal mortality rate in Louisiana is twice the national average.[xxix]
Importantly then, during the summer of 2020, the Supreme Court, in a 5‒4 decision, voted to overturn the Fifth Circuit’s decision with Chief Justice Roberts casting the key vote in a concurrence with the Court’s four liberal justices. At first glance, June Medical appears to be a victory for abortion rights advocates. After all, the case reaffirmed Whole Woman’s Health. Furthermore, the case also extended the precedential value in what remains of Roe v. Wade’s holding as well as the jurisprudence of Planned Parenthood v. Casey. June Medical preserves the constitutional right to terminate a pregnancy. The Court’s ruling effectively struck down all admitting privileges laws, very likely for good or so long as the Court’s current composition holds.
C. Chief Justice Roberts and the Swing Vote
In June Medical, for the first time since joining the Supreme Court, Chief Justice John Roberts voted to uphold an abortion law. He previously cast a dissenting vote in Whole Woman’s Health. He aligned with the majority in NIFLA v. Bacerra,[xxx] a case striking down a California notification law, requiring among other measures that crisis pregnancy centers (CPC) post information related to state-provided healthcare, including contraception, abortion, and sexually transmitted infection (STI) screenings for poor Californians. He sided with the majority in Burwell v. Hobby Lobby,[xxxi] a case that allowed companies to deny their employees health-care coverage of contraception based on religious objections of the owners.
However, Chief Justice Roberts took a decidedly different turn in June Medical, joining with the Court’s four liberal justices, striking down the Louisiana admitting privileges requirement. In addition to his concurrence in June Medical, during the 2019 Term Chief Justice Roberts cast decisive votes in Bostock v. Clayton County,[xxxii] expanding employment protections for LGBT employees; Calvary Chapel Dayton Valley v. Steve Sisolak Governor of Nevada,[xxxiii] denying an application for injunctive relief to a Nevada church seeking to hold worship services of more than fifty people during the pandemic; and Department of Homeland Security v. Regents of the University of California, overturning the Trump administration’s rescission of deferred action for childhood arrivals (DACA).[xxxiv]
In the face of these decisions, Chief Justice Roberts drew the ire of conservatives, including Vice President Michael Pence, who claimed that Chief Justice Roberts is “a disappointment to conservatives.”[xxxv] Specifically singling out the ruling in June Medical, Vice President Pence stated the Chief Justice’s vote should be understood as a “wake-up call for pro-life voters around the country who understand, in a very real sense, the destiny of the Supreme Court is on the ballot in 2020.”[xxxvi] Senator Ted Cruz accused the Chief Justice of abandoning his “oath.”[xxxvii] Former Arkansas Governor Michael Huckabee wrote on Twitter, “[t]oo bad Chief In-Justice John Roberts is so swamp-infected that he protects casinos & punishes places of worship.”[xxxviii] He urged the Chief Justice to “repent.”[xxxix] Charlie Kirk, founder of Turning Point USA, claimed the Chief Justice forgot his conservative values and has become a “national disgrace.”[xl] Other attacks included calls for retirement and impeachment.[xli]
For all of the vitriol and finger wagging, in the wake of June Medical, asserting that Chief Justice Roberts has abandoned his conservative leanings and assertions by liberals that he is the new swing vote on the Court, such speculations on both sides should be tempered given both his judicial record and analysis in the case.
Let me explain: In clarifying his vote, Chief Justice Roberts wrote, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided.”[xlii] For him, the question before the Court was “not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”[xliii] Through this lens, Chief Justice Roberts reasoned that a commitment to precedent or “stare decisis [requires the Court], absent special circumstances, to treat like cases alike.”[xliv]
Because the “Louisiana law impose[d] a burden on access to abortion just as severe as that imposed by the Texas law [and] for the same reasons . . . the Louisiana’s law cannot stand” under the Court’s precedents. Chief Justice Roberts was speaking to a fidelity to precedent. Stated differently, the Chief Justice also wrote, “[u]nder those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.”[xlv] Even more troubling for abortion advocates is this latter point made by the Chief Justice. Given that the Court has never explicitly identified what constitutes a substantial obstacle, it is quite possible that existing or future TRAP laws not yet vetted by the Court, but that are as burdensome or more so than those struck down, could be permissible under Chief Justice Roberts’s approach. In future cases, what district courts, based on a factual record, and what Justices Breyer, Kagan, and Sotomayor find substantially burdensome to the abortion right, may not be to Chief Justice Roberts.
Thus, to frame June Medical and Chief Justice Roberts’s concurrence as advancing the preservation of abortion rights would be a mistake. For example, Chief Justice Roberts dismisses Whole Woman’s Health’s balancing rule. Writing for the majority in Whole Woman’s Health, Justice Breyer asserted, “[t]he rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[xlvi] In announcing this rule, the Court recognized a key strategy associated with many existing TRAP Laws: They claim to help pregnant women even while their intention is to undermine abortion access. In other words, states might enact laws with the intention of burdening the abortion right but claim that the legislation intends to help women. By engaging the balancing test articulated in Whole Woman’s Health, a court would be better informed.
However, citing Justice Antonin Scalia, Chief Justice Roberts stated “[u]nder such tests, ‘equality of treatment is . . . impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.’”[xlvii] Simply put, according to Chief Justice Roberts, “nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”[xlviii] Troublingly, citing Gonzales v. Carhart, Chief Justice Roberts intimated abortion being bound with “medical uncertainty” and as such “state and federal legislatures [have] wide discretion to pass legislation” in such areas.[xlix]
Moreover, even while Chief Justice Roberts’s concurrence clearly articulates the value of precedent, it also discounts or dismisses the value of facts and robust scientific and social-scientific inquiry in balancing future cases. The Chief Justice concluded:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.[l]
Finally, four justices issued dissents in June Medical: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Each justice articulated grounds to reject the Court’s holding and uphold the Louisiana law that substantially impedes abortion rights. Justice Thomas argued that the doctors who brought the suit on behalf of their patients were not injured parties and thus lacked standing and that the Court lacked the authority to strike down “duly enacted law.”[li] To this latter point, Justice Thomas’s dissent stands in stark contrast with his opinion in NIFLA v. Becerra, striking down a “duly enacted” California law that required crisis pregnancy centers to identify their medical licensure status and post information that the state underwrites reproductive health care for poor persons.
Justice Alito also filed a dissenting opinion, in which all dissenters joined in part, claiming that his fellow justices in the majority misused the “doctrine of stare decisis, invoking inapplicable standards of appellate review.” Justice Alito claimed that the majority “distorts the record” and abandoned the rule established in Planned Parenthood v. Casey. Similarly, Justice Gorsuch argued that the Court exceeded its authority, and Justice Kavanaugh, in his dissent, argued that the Court’s review was premature. Accordingly, he would have remanded the case for additional fact-finding.
II. The Anti-Abortion Playbook: Weaponizing Planned Parenthood v. Casey
That states have enacted hundreds of anti-abortion laws even in the last two years is not by accident, but rather strategic organizing and lobbying by anti-abortion advocates. Their efforts include drafting model legislation to ban abortion or abortion-related procedures. The recent spate of so-called “heartbeat” legislation is an example.[lii] In 2019, an investigative report revealed that fetal heartbeat legislation “was the outcome of nearly 10 years of calculated effort, starting with a sample bill written in Ohio that was then copied over and over . . . and proposed 26 times before it finally gained traction.”[liii]
Reporters found that “more than 400 abortion-related bills that were introduced in forty-one states were substantially copied from model bills written by special-interest groups.”[liv] Included among this spate of legislation were bills requiring “women to receive ultrasounds before an abortion procedure, impos[ing] stricter licensing requirements on abortion clinics, and establish[ing] a waiting period before abortions can be performed.”[lv]
Thus, one important lesson from June Medical is the powerful and strategic deployment of the anti-abortion playbook. This playbook provides a blueprint for legislatures across the country to enact laws that chip away at the abortion right. This results in the repeat play of legislation, creating uniformity among certain states. Legislatures engage the playbook even with legislation already determined unconstitutional by the Supreme Court. (Minnesota legislators proposed an ambulatory-surgical-standards law, which I testified against—also after Whole Woman’s Health.) Even while the Court struck down both the Texas and Louisiana laws, placing these laws in social and legal contexts is both necessary and important. A brief discussion related to how these laws emerged (given that Roe v. Wade did not impose such conditions and provisions) follows.
The goal of the anti-abortion playbook is to hobble abortion access. One powerful means of doing so is to surreptitiously drive doctors out of their practices, thereby forcing clinics to close, leaving women with virtually no options for safe termination of unintended or unsafe pregnancies. What is clear in June Medical, as with the other anti-abortion measures making their way through the courts, is that these TRAP laws have nothing to do with protecting women or their health. Instead they seek preserve the old Jane Crow way of being, which denies women equal opportunity, citizenship, and independence.
The anti-abortion playbook is not that far different than the segregationist playbook. During Jim Crow, sympathetic white business owners were threatened with physical and financial violence for providing Black residents competitive contracts[lvi] and wages or renting them housing.[lvii] This was a powerful disincentive for the rare, white business owners interested in contracting with Blacks. In Louisiana, the legislature went so far as to threaten the closures of “racially mixed schools” four years after Brown, ultimately to keep Blacks in their place: disenfranchised and second-class citizens.[lviii]
A. Weaponizing Planned Parenthood v. Casey
Both Whole Woman’s Health and June v. Russo represent a vibrant anti-abortion strategy in the United States that weaponizes the Court’s holding in Planned Parenthood v. Casey[lix] against pregnant women. In Planned Parenthood v. Casey, the Court considered whether a state can require women who want an abortion to obtain informed consent; wait twenty-four hours; if married, notify their husbands; and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade.
In a 5‒4 decision, the Court in Planned Parenthood v. Casey reaffirmed Roe v. Wade. However, the Court also upheld most of the Pennsylvania provisions. For example, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard queries whether the state’s abortion regulation serves the purpose or has the effect of imposing an “undue burden” on a pregnant woman. The Court loosely defined undue burden as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
The sole provision to fail the Planned Parenthood v. Casey undue-burden test was the spousal notification requirement.[lx] With regard to this abortion provision, Justice Sandra Day O’Connor specifically noted domestic violence and marital rape as material matters that could impede a woman’s access to abortion if she were required to notify her husband as a condition of terminating her pregnancy. In consideration of these realistic hindrances on abortion rights, the Court stated, “The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.”[lxi] The Court cautioned, “[w]e must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”[lxii]
Three decades later, the abortion provisions at issue in Whole Woman’s Health and June Medical reflect the corrosive application of the Court’s plurality decision in Planned Parenthood v. Casey, which permitted states to enact laws to regulate abortion to protect women’s health, so long as those laws did not impose an undue burden to the right to terminate a pregnancy. As a result, states have expanded the provisions permitted by the Court in 1992 such that in some states waiting periods are now seventy-two hours rather than twenty-four. Doctors in some states must present patently false information to patients prior to performing an abortion procedure, including stating that abortions may cause cancer, infertility, or damage mental health. Some states require that women receive an invasive, medically unnecessary vaginal ultrasound, facilitated by a large wand shaped instrument inserted through the vagina into the uterus prior to an abortion procedure. Some states ban telemedicine to fulfill the counseling or prescribing of medication abortions.
Thus, on the one hand, the Louisiana and Texas laws could be counted among the hundreds of anti-abortion laws proposed and enacted since 2010 when the Tea Party, an ultra-conservative wing of the Republican Party with strong evangelical membership, swept into office. The Tea Party campaigned on a platform that perceived the Republican Party as too moderate on reproductive rights, immigration, and voting. The Tea Party[lxiii] coalesced in direct rejection of Obama administration policies, including the Patient Protection and Affordable Care Act (ACA or Obamacare), and its reproductive healthcare mandates.[lxiv]
For example, during debate on the ACA, one of the rising stars in the Tea Party movement, former Minnesota Congresswoman and presidential candidate, Michelle Bachmann, questioned whether provisions making reproductive healthcare more affordable under the law would “mean that someone’s 13-year-old daughter could walk into a sex clinic, have a pregnancy test done, be taken away to the local Planned Parenthood abortion clinic, have their abortion, be back and go home on the school bus?”[lxv] Even though Representative Bachmann’s inflammatory claims that with the ACA, “parents will never know what kind of counsel and treatment that their children are receiving,” were clearly erroneous, they resonated with religious fundamentalists and evangelicals who play an increasing, visible role in state and federal politics within the Republican Party.[lxvi]
Anti-abortion laws are not about protecting the health or safety of women and girls or people who can become pregnant. Safety serves as an expedient, duplicitous proxy in these instances. For the most part, male legislators—who dominate the seats in U.S. legislatures—control women’s reproductive healthcare access. In the context of abortion, some cling to their power over women’s bodies with an ironclad grip. Overwhelmingly, these policymakers have no history of providing medical care and no experience in the sciences. State Senator Clyde Chambliss, one of the leaders behind Alabama’s abortion ban informed colleagues, “I’m not trained medically so I don’t know the proper medical terminology and timelines.”[lxvii] Senator Chambliss’s admitted lack of medical knowledge did not stop him from lobbying for his legislation based on the belief that women have the ability to end their pregnancies on their own, before they are aware of pregnancy.[lxviii]
In recent years, conservative male policymakers have legislated against reproductive health with an outsized authority relative to their knowledge and in ways that are both condescending to women and dangerous. As Missouri enacted a spate of “extreme abortion restrictions” in 2019, including an abortion law that made no exceptions for rape or incest, Republican State Representative Barry Hovis informed lawmakers that most rapes are “he-said-she-said” that are mostly “consensual.”[lxix] Some in this cohort champion legislation that denies abortion even in cases of rape and incest.[lxx] An Oklahoma lawmaker “defends pregnancy from rape and incest as ‘beauty from ashes.’”[lxxi] Even saving or preserving the life of the pregnant woman does not matter. A representative from Ohio, John Becker, introduced legislation that provided for the reimplantation of an embryo or fetus after ectopic pregnancy even though such a procedure does not exist.[lxxii] Women’s health and safety are only incidental to what really matters: preserving power.
Brie Shea spells out how their power was strategically executed in 2019 to hollow out abortion rights.[lxxiii] Nearly four hundred anti-abortion laws were proposed in the first half of 2019, and more than a dozen states debated legislation that would confer constitutional rights to fetuses.[lxxiv] Those same laws would prioritize the “rights” of fetuses over pregnant women. State legislatures introduced a spree of laws criminalizing abortion during the first and second trimesters, claiming to protect fetuses after a heartbeat is detected, notwithstanding the fact that those early pulsations they legislate about have nothing to do with a developed, beating heart.
Nevertheless, sixteen states introduced legislation seeking to ban abortion after the so-called detection of a fetal “heartbeat.” Mississippi’s governor signed a law banning abortion after six weeks.[lxxv] The Arkansas legislature enacted the “Cherish Act,” which makes it a felony to perform an abortion after eighteen weeks of fetal gestation,[lxxvi] violation of which could result in six years imprisonment.[lxxvii] Lawmakers in Utah enacted a similar law.[lxxviii] Ohio’s governor signed anti-abortion legislation that provides no exception for rape or incest.[lxxix] Beyond a doubt, the ability to terminate a pregnancy is under serious threat, and the future of abortion rights secured under Roe, Planned Parenthood v. Casey, and Whole Woman’s Health rests with a deeply divided, partisan, and politicized Supreme Court.
B. Brief Consideration of the Future of Abortion Rights
Roe’s legacy remains uncertain. Sadly, the fragility of reproductive health rights is tied to the composition of the U.S. Supreme Court. And the Court’s current composition of 5 conservative, anti-abortion justices—all of whom are men—exposes the vulnerability of abortion rights specifically and reproductive healthcare generally. In short, serious challenges remain ahead.
However, the vulnerability of reproductive rights is not solely defined by abortion. Sex education is under attack. Affordable contraceptive access is out of reach for millions of Americans. Maternal mortality rates in the U.S. exceed that of dozens of nations, contributing to the high risks of death associated with pregnancy. States have turned to policing women’s pregnancies and criminalizing a range of conduct. Given these fraught conditions, any considerations related to the future of abortion rights should take into account the larger political and social landscape.
In 2018, the Trump administration announced that it would enact new rules barring U.S. medical providers that receive Title X funding from counselling their patients on abortion or making referrals for the medical treatment. Following through on his policy, the new rule now impacts 1.6 million poor women who receive reproductive health services under the Title X program. In essence, the administration has imposed a gag rule on American doctors, much like that imposed on foreign providers.[lxxx] With this action, “the Trump administration’s domestic ‘gag rule’ has slashed the Title X national family planning network’s patient capacity in half.”[lxxxi] Nearly one thousand clinics providing reproductive health care services such as breast and cervical care screenings, STI testing, and contraception delivery, “approximately one-quarter of all sites that received Title X funding as of June 2019—likely left the Title X network because of the gag rule.”[lxxxii]
Campaigns to undo the hard-fought rights gained by women to govern their bodies and reproductive health now result in the closing of clinics that perform not only abortion but also a plethora of women’s reproductive-health services. Millions of poor women are trapped, living in states where only one abortion clinic remains—such as Missouri, Mississippi, North Dakota, South Dakota, and Wyoming—forced to drive hours, even in the case of life-threatening pregnancies, to arrive at the nearest clinic. Despite the promise of Whole Woman’s Health v. Hellerstedt, states continue to erect serious barriers to women’s reproductive autonomy by enacting TRAP laws and other provisions that purport to protect and promote women’s health. Empirically, however, such laws do not promote women’s health. In the United States, even while abortion is safer than pregnancy—a person is fourteen times more likely to die in pregnancy or childbirth than during an abortion—these facts are obscured by anti-abortion legislation.[lxxxiii]
For example, in 2017, only months after the Supreme Court struck down ambulatory surgical center requirements as a condition for a clinic’s licensure to provide abortions, Minnesota state legislators sponsored an almost identical bill before that state’s legislature.[lxxxiv] However, in Minnesota, according to data from the Minnesota Department of Health, complications associated with an abortion are less than 0.01%.[lxxxv] In my written and public testimony before the Minnesota State Legislature Committee on Judiciary and Public Safety Finance and Policy, I emphasized this. A woman in Minnesota is more likely to die from gun death, domestic violence, drug poisoning, homicide, and childbirth than from an abortion. Predictable deaths in Minnesota will not be from an abortion, but rather domestic violence and traumatic injuries from firearms. Firearms are the second leading cause of brain injury deaths in Minnesota.[lxxxvi] A woman is more likely to die from a urinary tract infection during pregnancy than an abortion.[lxxxvii]
Not surprisingly, the rhetoric used to justify the enactment of far-reaching anti-abortion (and increasingly anti-contraception) laws domestically and abroad ignores science, history, sociology, and women’s lived lives. When and if the Supreme Court undertakes its next abortion provision challenge, if precedent is not at issue, will they have a vote from Chief Justice Roberts? Will the Chief Justice’s vote matter if another conservative justice joins the Court?
That said, there are signs for hope. Members of Congress, in the House of Representatives and Senate have introduced the Women’s Health Protection Act. The law was first introduced in 2013 by Representative Judy Chu and Senator Richard Blumenthal. In each subsequent year since the bill was introduced, the legislation has gain support among representatives and senators. The legislation seeks to invalidate TRAP laws and other anti-abortion provisions that do not protect a pregnant person’s health. It would ban restrictions on the right to receive abortion services and to deliver abortion services. The legislation would ban laws that force health providers to offer medically inaccurate information; prohibit states from banning abortion prior to viability; repeal laws that require healthcare providers to perform medically unnecessary tests or procedures as part of abortion services; and reject laws that require patients to make medically unnecessary in-person visits in association with abortion.[lxxxviii]
The Women’s Health Protection Act is promising in that it would restore abortion rights to much of the Roe framework. However, critics suggest that the legislation does not go far enough, in that it does not address Hyde Amendment related harms.
Also promising is legislation to repeal the Helms Amendment, introduced by Representative Jan Schakowsky shortly after the Supreme Court announced its opinion in June Medical. The Helms Amendment, named for its author the late Senator Jesse Helms, restricts family planning services internationally. Enacted the same year as Roe, the Amendment “prohibits the use of U.S. foreign assistance funds to pay for ‘abortion as a method of family planning.’”[lxxxix] Repeal of the Helms Amendment would help millions of girls and women around the world hurt by the legislation that bears the name of a self-proclaimed bigot.[xc]
Reproductive health advocates suggest that “[a]lthough Helms should allow for the provision of abortion counselling and referrals, post-abortion care and abortion in cases of rape, incest, and if a woman’s life is in danger, the lack of clarity surrounding the restrictions has led to overinterpretation of the policy as a total ban on abortion-related services and information.”[xci] With repeal of the Helms Amendment, advocates hope that the twenty-five million women and girls who have unsafe, illegal abortions each year might be able to receive safe, accessible, reproductive health services.
June Medical v. Russo is an important legal decision in that it reaffirmed Whole Woman’s Health and Planned Parenthood v. Casey. The case did not expand abortion rights, such as to bring the procedure into greater reach for poor women. However, the case did not further chip away at abortion rights. And for this, many advocates interpret it as a mild victory.
[ii] Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood (2020).
[vi] See, e.g., Hyde v. Scyssor, 79 Eng. Rep. 462 (1619); Ohio & Miss. Ry. v. Cosby, 107 Ind. 32, 34–35 (1886); Birmingham S. Ry. Co. v. Lintner, 141 Ala. 420, 427–28 (1904). Historically, loss of consortium litigation provided economic remedies only for husbands. See generally Jo-Anne M. Baio, Loss of Consortium: A Derivative Injury Giving Rise to a Separate Cause of Action, 50 Fordham L. Rev. 1344 (1982).
[vii] See, e.g., Bradwell v. State, 83 U.S. 130, 141 (1872) (affirming an Illinois statute that denied female law graduates admission to the bar because “civil law, as well as nature herself, has always recognized a wide difference in the respective spheres of destinies of man and woman. . . . The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life”).
[viii] See Dorothy Roberts, Killing The Black Body 29–31 (1997).
[x] See, e.g., Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000); Michele Goodwin, Marital Rape: The Long Arch of Sexual Violence Against Women and Girls, 109 Am. J. Int’l L. 326, 328 (2016). Moreover, states typically vindicated the legitimacy of marital rape, and courts followed suit. See, e.g., State v. Paolella, 554 A.2d 702 (Conn. 1989) (finding that Conn. Gen. Stat. § 53a-70(a) and 53a-70a(a) exonerates married men from the crime of rape if the victim is his wife); see also Michael G. Walsh, Criminal Responsibility of Husband for Rape, or Assault to Commit Rape, on Wife, 24 A.L.R. 4th 105 (1983).
[xi] Minor v. Happersett, 53 Mo. 58, 64–65 (1873); Eleanor Barkhorn, Vote No on Women’s Suffrage: Bizarre Reasons For Not Letting Women Vote, Atlantic (Nov. 6, 2012) (“The stated reasons to ‘vote no’ include, because 80% of the women eligible to vote are married and can only double or annul their husband’s votes.”).
[xii] Barkhorn, supra note 11.
[xiii] Happersett, 53 Mo. at 64–65.
[xiv] Goodwin, supra note 2; Michele Goodwin, Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, 102 Cal. L. Rev. 781 (2014).
[xv] Leslie Reagan, When Abortion Was a Crime 214 (1996).
[xvi] Id. at 210.
[xviii] Id. at 210‒11.
[xix] World Health Org., Safe Abortion: Technical and Policy Guidance for Health Systems 49 (2d ed. 2012).
[xx] Julie A. Matthaei, An Economic History of Women in America 3 (1982).
[xxi] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
[xxii] See e.g., Manny Fernandez, Abortion Restrictions Become Law in Texas, But Opponents Will Press Fight, N.Y. Times (July 18, 2013).
[xxiii] Whole Woman’s Health, 136 S. Ct. at 2321‒21.
[xxvii] See, e.g., Elizabeth G. Raymond et. al., The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215 (2012).
[xxviii] See e.g., Della Hasselle, Tulane Researcher to Study Why Women in Louisiana Die More Often From Pregnancy Than In Other States, NOLA.com (Nov. 6, 2018).
[xxix] Betsy Shepherd, Homicide is the Leading Cause of Pregnancy Deaths in Louisiana, WWNO (Feb. 4, 2020).
[xxx] Nat’l Inst. of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).
[xxxiv] Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020).
[xxxv] Tucker Higgins, Pence Says Supreme Court Chief Justice Roberts Has Been ‘A Disappointment to Conservatives,” CNBC (Aug. 6, 2020).
[xxxvii] Daniel Politi, Conservatives Slam “Swamp-Infected” John Roberts After Nevada Church Ruling: “National Disgrace,” Slate (July 25, 2020).
[xl] Politi, supra note 37.
[xlii] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (Roberts, C.J., concurring).
[xlvi] Id. (citing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016)).
[li] Id. (Thomas, J., dissenting)
[lii] Anne Ryman & Matt Wynn, For Anti-Abortion Activists, Success of ‘Heartbeat’ Bills Was 10 Years in the Making, AZCentral (Dec. 2, 2019).
[lvi] Jennifer Roback, Southern Labor Law in the Jim Crow Era: Exploitative or Competitive, 51 U. Chi. L. Rev. 1161 (1984).
[lviii] See K. McKenzie, The Desegregation of New Orleans Public and Roman Catholic Schools in New Orleans, 1950‒1962 266 (May 2009) (Master’s Thesis, La. State Univ.).
[lix] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
[lx] Id. at 894‒95.
[lxii] Id. at 894.
[lxiii] Clarence E. Walker, “We’re Losing Our Country”: Barack Obama, Race & the Tea Party, 140 Daedalus 125 (2011) (“[T]he Tea Party, then, is an extreme right-wing or conservative outgrowth of the Republican Party. Not all conservatives are Tea Partiers, but Tea Partiers are radical conservatives.”).
[lxiv] See e.g., Jeremy W. Peters, The Tea Party Didn’t Get What It Wanted, But It Did Unleash the Politics of Anger, N.Y. Times (Aug. 30, 2019); see also, Angie Maxwell, How Southern Racism Found A Home in the Tea Party, Vox (July 7, 2016).
[lxv] Cynthia Dizikes, Bachmann Warns of ‘Sex Clinics’ and Abortions in Schools, MinnPost (Oct. 1, 2009), (“[I]n a speech on the House floor yesterday, Rep. Michele Bachmann, R-Minn., claimed that that health-care reform bills would establish school “sex clinics,” which would exclude parents from their children’s health decisions, including abortion.”).
[lxvi] See e.g. Walker, supra note 63.
[lxvii] Arwa Mahdawi, ‘Consensual Rape’ and ‘Re-implanation’: The Times Lawmakers ‘Misspoke’ on Abortion, Guardian (May 18, 2019).
[lxviii] Lisa Ryan, These Statements from Alabama’s Abortion Voice Are Infuriating, Cut (May 15, 2019).
[lxix] Mahdawi, supra note 67.
[lxx] Emily Wax-Thibodeaux, In Alabama-Where Lawmakers Banned Abortion for Rape Victims-Rapists’ Parental Rights Are Protected, Wash. Post (June 9, 2019).
[lxxi] Kristine Phillips, Oklahoma Lawmaker Defends Pregnancy from Rape and Incest as “Beauty from Ashes,” Wash. Post (Mar. 25, 2017).
[lxxii] Kayla Epstein, A Sponsor of An Ohio Abortion Bill Thinks You Can Reimplant Ectopic Pregnancies. You Can’t, Wash. Post (May 10, 2019).
[lxxiii] Brie Shea, Legislative Low-Lights: Abortion Restrictions Sweep Through GOP-Held Legislatures, Nation of Change (Feb. 27, 2019).
[lxxiv] Ryman, supra note 52.
[lxxv] Elizabeth Nash, A Surge in Bans on Abortion as Early as Six Weeks, Before Most People Know They Are Pregnant, Guttmacher Inst. (Mar. 22, 2019).
[lxxviii] Associated Press, Utah Passes New Abortion Rules, Could Mean Felony Charges for Doctors and Women, NBC News (Mar. 13, 2020).
[lxxix] Ohio Governor Signs Ban on Abortion After 1st Heartbeat, AP News (Apr. 11, 2019).
[lxxx] Ruth Dawson, Trump Administration’s Domestic Gag Rule Has Slashed the Title X Network’s Capacity by Half, Guttmacher Inst. (Feb. 5, 2020).
[lxxxiv] S.F. 704, 90th Sess. (Minn. 2017).
[lxxxv] Minn. Dep’t of Health, Induced Abortions in Minnesota January - December 2019: Report to the Legislature (2020).
[lxxxvi] Jeff Hargarten, Tallying Gun Deaths: One Minnesotan Killed Every Day by Firearms, MinnPost (Jan. 8, 2013).
[lxxxvii] Pittman, supra note 83.
[lxxxviii] Women’s Health Protection Act of 2019, S. 1645, 116th Cong. (2019).
[lxxxix] Press Release, Ipas, Repeal the Helms Amendment. It Will Save Women’s Lives (Dec. 17, 2019).
[xci] Repeal the Helms Amendment, supra note 89.