October 19, 2020

Abortion Access for Low-Income People is at Stake in the Amy Coney Barrett Nomination

Joel Dodge Director of Public Interest Professional Development at Columbia Law School
Claire Shennan Program Associate for Judicial Strategy at the Center for Reproductive Rights

The nomination of Judge Amy Coney Barrett threatens to radicalize the Supreme Court. Barrett’s record demonstrates that she is fundamentally hostile to reproductive rights, and within her judicial philosophy, she discounts the consequences and burdens of the judiciary’s decision-making in people’s lives.

However, her approach is in conflict with current Supreme Court precedent, which has considered exactly these kinds of real-world burdens with respect to laws impinging upon reproductive rights. While low-income Americans often struggle to access reproductive health care, the Court in last term’s June Medical Services v. Russo (2020) reaffirmed earlier holdings in Planned Parenthood v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016) that constitutional review of state abortion restrictions must take into account the burdens they impose on the least advantaged.

In Casey, the Supreme Court held that a state unlawfully impedes upon the constitutional right to access abortion if it creates an “undue burden” on the right. The Court factored in real-world circumstances facing people seeking abortion when it invalidated Pennsylvania’s requirement that a woman notify her spouse of her intention to have an abortion, recognizing that compliance would be especially burdensome for those in abusive relationships. The Court wrote that “we 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.”

The Supreme Court’s decision in Whole Woman’s Health reaffirmed the importance of considering real-world circumstances when applying the undue burden standard. In assessing the burdens imposed by two Texas TRAP (“targeted regulation of abortion providers”) laws, the Court credited the district court’s finding that each requirement created “a particularly high barrier for poor, rural, or disadvantaged women,” highlighting increased travel as just one example.

Following these Supreme Court decisions, lower courts evaluating the constitutionality of abortion restrictions have consistently factored in burdens attendant to economic hardship. These included the socioeconomic makeup of patients seeking abortions, travel time to clinics, transportation costs, hotel costs, lost wages from time off from work, childcare costs, and time and resources spent borrowing or raising the necessary funds for all of the above.

One of these cases, known as June Medical Services v. Gee (later June Medical Services v. Russo), involved a challenge to a Louisiana TRAP law identical to one of the Texas requirements invalidated in Whole Woman’s Health. While blocking the Louisiana law, the district court made extensive findings that the resulting clinic closures would disproportionately burden low-income people. For instance, the court found that those seeking abortion are disproportionately poor: 42% of women having abortions nationally live at or below the poverty line, and “another 27% ha[ve] incomes at or below 200% of the poverty line.” The court also found that the burdens of the law – from longer wait times to delays in care – “would have the effect [of] increasing health risks among the State’s poorer women.”

After the Fifth Circuit reversed the district court’s decision, the Supreme Court agreed to hear the case. In its decision last term in June Medical Services, the Court invalidated the law as an undue burden on the right to abortion. Five Justices – a plurality of Justices Breyer, Ginsburg, Sotomayor, and Kagan, plus Chief Justice Roberts in concurrence – reaffirmed the holdings from Casey and Whole Woman’s Health that real-world circumstances, including harms amplified by poverty, are relevant under the undue burden standard.

The plurality closely evaluated the real-world impacts of Act 620. It explained that “the reduction in abortion providers caused by Act 620 would inevitably mean ‘longer waiting times and increased crowding’” and that “even if they obtain an appointment at a clinic, women who might previously have gone to a clinic in Baton Rouge or Shreveport would face increased driving distances.” Moreover, the plurality explained that “the impact of these increases would be magnified by Louisiana’s requirement that every woman undergo an ultrasound and receive mandatory counseling at least twenty-four hours before an abortion,” and that this impact would be even greater under the admitting privileges law, as “a Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly twenty hours driving back and forth to Doe 5’s clinic twice, or else find overnight lodging in New Orleans.” The plurality recognized that “the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”

Chief Justice Roberts, providing the fifth vote to strike down the law, also acknowledged the significance of these real-world impacts. He credited the district court’s finding that the law “would result in longer wait times for appointments, increased crowding, and increased associated health risk.” And he recognized that people in Louisiana seeking abortion already “have difficulty affording or arranging for transportation and childcare on the days of their clinic visits,” and that the “increased travel distance” due to clinics closures would only serve to “exacerbate this difficulty.” He also observed that “the law would be particularly burdensome for women living in northern Louisiana…who once could access a clinic in their own area and will now have to travel approximately 320 miles to New Orleans.”

In the wake of June Medical Services, there is now broad, reaffirmed precedent from the Supreme Court that the burdens falling most heavily on low-income people seeking abortion matter under the Constitution. The Court’s membership is now undergoing a transformation. If confirmed to the Supreme Court, Judge Barrett must set aside her own unforgiving judicial philosophy and pay the respect of stare decisis to precedent giving constitutional meaning to the lived experiences of marginalized people seeking to exercise their fundamental rights.

2020 Supreme Court Vacancy, Equality and Liberty, Reproductive Rights