SCOTUS Considers Louisiana Abortion Law
When Amy Irvin had an abortion in Ohio in 1992, the legal process and procedure was easy. Twenty years later in Louisiana, the story wasn’t so simple.
In Louisiana, Irvin was shocked by “intrusive and burdensome” requirements stipulated by the State of Louisiana, according to an amicus brief filed by Irvin and a group of women who have all had abortions in June Medical Services vs. Russo. The Supreme Court will begin hearing this critical case about a requirement of doctors admitting privileges at hospitals on March 4.
Before she could finally receive her second abortion, Irvin was forced to sit through two required meetings, endure a mandatory 24-hour waiting period, and experience a traumatic ultrasound that she still tries to forget. Even then, her clinic was so overcrowded she had to wait all day to be seen.
In Louisiana, Irvin’s story is not uncommon. Because of legal restrictions imposed at the state level, thousands of abortion-seekers throughout the country are subjected to similar regulations that reduce abortion access. Now, when the Supreme Court hears June Medical Services it has an opportunity to dramatically reduce the number of legal abortions offered in Louisiana and restructure the future of U.S. abortion law.
The History of June Medical Services
In 2014, the Louisiana legislature comfortably passed a bipartisan bill that required all doctors performing abortions to receive admitting privileges at hospitals within 30 miles of the clinic where the abortion was being performed. Admitting privileges grant doctors legal authority to enter a nearby hospital in the event of complications during an abortion. Now, the law will be heard before the Supreme Court on March 4. The Supreme Court overturned a similar Texas law in 2016.
The Court determined in Whole Woman’s Health v. Hellerstedt in 2016 that Texas could not impose a similar requirement of admitting privileges for doctors. Using the abortion law framework established in Casey v. Planned Parenthood in 1992, the Court ruled 5-3 that the Texas law would impose an “undue burden” on people seeking abortions in the state. Noting that some people would have to travel hundreds of miles to recieve an abortion, and that the number of clinics performing abortions decreased from 42 to 19 in the three years after Texas initially passed the law in 2013, the Court established a precedent on the question of admitting privileges.
While the Texas law moved through the court system, Louisiana passed a nearly identical law in 2014. The bill passed the Republican-dominated state legislature with large majorities in the Senate and the House, with support from many Democrats in the state legislature.
After its passage, the bill immediately faced lawsuits. The Center for Reproductive Rights, an organization that advocates for increased abortion access, filed a lawsuit in August 2014, two months after the law passed. Nine days later, a federal district court issued a temporary restraining order which delayed implementation of the law, before striking it down in 2017 in response to Whole Woman’s Health. A year later, the Fifth Circuit reversed the lower court’s decision, enabling the law’s enactment. The Center immediately asked the Supreme Court to delay implementation of the law, then filed for appeal, which the Court granted in October of 2019.
Disagreements on the Impact of the Law
With only three abortion clinics currently open in Louisiana—a state with approximately one million women of reproductive age—pro-choice advocates worry that the bill could force two clinics to close. Lourdes Rivera, Senior Vice President of U.S. Programs at the Center for Reproductive Rights, told The Politic that 10,000 women seek abortions in Louisiana every year, keeping each clinic quite busy every day. If two of the three close, a single clinic is unlikely to have the resources to perform at the same capacity.
On the other side of the issue, proponents of the Louisiana bill claim that it serves to protect the safety of those receiving abortions. In an interview with The Politic, Alexandra Seghers, Director of Education at Louisiana Right to Life, said that many abortion clinics in Louisiana have committed substantial health violations, making the law necessary.
“There’s so many different health violations that are happening…. We were hearing that in these facilities, [each patient] didn’t feel like they were being treated as a valued patient. They would go in, sometimes they would say they were being treated like a number, just as cattle. It was dark, people weren’t friendly, it was dirty,” Seghers said. “There were multiple things that made us question what was really going on.”
Carson Macik, President of Choose Life at Yale, made this point in an interview with The Politic, arguing that requiring admitting privileges would increase the safety of abortion procedures.
“This law in particular is aimed at protecting the health of the women seeking abortion, rather than increasing or decreasing the number,” he said, arguing that abortion providers should be “trustworthy doctors that know what they’re doing rather than a ‘backwater’ hospital.”
Seghers cited a number of health violations at abortion clinics in Louisiana, including June Medical Services, such as neglecting physical exams, lacking proper equipment and failing to follow mandatory reporting laws. She argued that abortion providers aren’t held to the same standard as other medical practitioners, and called it “crazy” that pro-choice advocates don’t see this bill as a way to improve women’s safety.
“It’s common sense that women’s health and safety shouldn’t be at risk,” Seghers said.
Yet, when Irvin received an abortion in Louisiana, she was impressed by the commitment of the doctors she worked with. She could tell they were dedicated to the well-being of their patients, and noticed that many of them continued working after they reached retirement age because they believed in the work they were doing. In her experience, it was not the doctors but “unnecessary regulations that restrict abortion access” that made her second abortion experience so troubling.
Laying out the legal argument against the Louisiana law, Rivera said that it is exactly the same as the Texas law that the Supreme Court reversed in 2016.
“This is an exact copy-cat law that Louisiana picked up from Texas, they saw how well it worked to shut down clinics,” Rivera said. “This should be a very clear straight up legal issue. We expect the court to uphold precedent.”
Despite its similarity with the Texas law, some pro-choice opponents of the Louisiana law are worried that the Supreme Court could reverse its precedent simply because of the Court’s changed makeup. Since 2016, Donald Trump has successfully nominated Neil Gorsuch and Brett Kavanaugh to the Supreme Court, both of whom are broadly considered to be conservative and pro-life.
The state of Louisiana, on the other hand, believes its law is substantially different from the one in Texas. In an email to The Politic, the office of Republican Attorney General Jeff Landry firmly argued this point.
“Louisiana is not Texas, and our case is distinguishable from Hellerstedt; our facts, our evidence, and our generally applicable medical standards are all different,” Landry’s office wrote. “This bi-partisan legislation is necessary because Louisiana abortion providers have a long documented history of medical malpractice, disciplinary actions, and violations of health and safety standards.”
In court, the Louisiana attorney general’s office argued that the law would not create drastic financial and travel burdens on people seeking abortions like the Texas law did. In overturning the stay on the law issued by the federal district court, the Fifth Circuit argued that few women would be forced to travel further in Louisiana, despite the fact that Rivera believes the bill would shut down two of the three clinics in the state. The Fifth Circuit argument specifically referenced Texas, claiming that the state’s number of women forced to travel over 150 miles would have increased by 350%, while arguing that driving distances will not increase in Louisiana.
When Irvin recieved her second abortion, she was dismayed by the number of women who had traveled long distances to access the clinic and weren’t sure how they were going to afford to get home after waiting all day to be seen. Some were low income and needed to get home to pick up their kids from public school or daycare.
That same day a local abortion clinic in Baton Rouge temporarily stopped seeing patients after one of its providers died. As a result, many Baton Rouge patients traveled to New Orleans, which increased travel distances and costs for many of the women.
If two of the three Louisiana abortion clinics close, situations like Irvin’s could be exacerbated with an impact more likely to be felt in poor and rural areas of the South.
Pro-life advocates for the Louisiana bill believe that it will improve the safety of abortions for women in Louisiana. Rather than viewing it as the first step towards overturning Roe v. Wade, they see this bill as a stand-alone mechanism to regulate the procedure’s safety. Additionally, they argue that while a side effect of the bill may be that the number of performed abortions decreases in Louisiana, this effect is not its purpose.
Contrarily, in addition to arguing that the law would severely restrict abortion access for many women in Louisiana, pro-choice advocates such as the Center for Reproductive Rights believe that the additional scrutiny of doctors is superfluous. Abortion is a very safe procedure, Rivera argued, compared to many other operations that are similarly intrusive and do not require admitting privileges for doctors. Since less than one percent of abortion procedures have serious complications, pro-choice opponents of the Louisiana law do not believe that a requirement of admitting privileges is likely to increase the safety of the procedure.
Rivera raised further issue with the concept of admitting privileges as an indicator of a doctor’s medical qualifications. She told The Politic that admitting privileges are primarily a business transaction and can be denied for any reason. Admitting privileges do allow doctors to enter hospitals with their patients and use hospital resources to complete a procedure. Yet, Rivera does not see this requirement as one that significantly increases the likelihood that a doctor is able to safely perform the operation. This stance is echoed by the American College of Obstetricians and Gynecologists, which filed a brief for June Medical Services along with 13 other medical organizations, arguing that the law does not meet the standards of evidence to be supported by a medical organization.
“The admitting privileges requirement at issue in Whole Woman’s Health posed an unconstitutional and undue burden on abortion access,” the brief states. “Laws regulating abortion should be evidence-based and supported by a valid medical justification. Because laws requiring clinicians who provide abortions to have local admitting privileges are neither, this Court should not allow them to stand, regardless of the state from which they originate.”
Responding to the criticism that the law could shut down abortion clinics and leave people at risk of being unable to receive an abortion, Seghers claimed that doctors can easily apply for admitting privileges. Rather than allow people to receive abortions in unsanitary conditions, Seghers argued, clinics should be forced to improve the conditions of their clinic, which she believes is likely to happen through the admitting privileges requirement.
“Nothing in [the Louisiana abortion law] it is about closing abortion facilities because… if physicians get admitting privileges, those abortion clinics won’t be closed,” she said.
Yet, according to Rivera, requiring admitting privileges is simply one of many mechanisms pro-life lawmakers have learned to hide behind in order to limit abortion access. Rather than aiming to overturn Roe, which Rivera believes would be difficult, she sees laws like these as indirect ways of regulating abortions to the point where they rarely occur, if at all.
“This is part of a concerted campaign to limit abortion access,” she said. “It targets abortion clinics with unnecessary regulations. There is nothing about admitting privileges that protects health.”
When The Politic asked Attorney General Landry’s office if the state of Louisiana is concerned that the bill could have severe detrimental effects for abortion-seekers, the office said no, declining to explain why.
The Finances of Abortions
Irvin struggled to pay for her first abortion in Ohio, but after a successful professional career, the cost of her second abortion was no longer an obstacle. Yet for many others in the waiting room that day, money was an issue.
While Irvin waited for her abortion in New Orleans, she saw the desperation of many women trying to figure out how to get back to Baton Rouge to pick up their children from school and pay for gas along the way. Additionally, they all had to deal with a 24-hour mandatory waiting time that required them to go back to Baton Rouge and drive the 80 miles to New Orleans again the next day.
Tommy Schacht ‘21, a member of Choose Life at Yale, told The Politic that this case comes down to weighing the potential public health benefits of requiring admitting privileges against the potential loss in coverage that may result from two clinics shutting down. He proposed a solution to these travel restrictions: instead of simply repealing the admitting privileges requirement, Schacht believes the best solution might be subsidizing travel expenses for low-income women who are forced to travel further to recieve abortions.
“If you’re not pro-life, it seems like the kind of public health response would be subsidizing travel for women rather than keeping [the clinics without admitting privileges] open,” he said, arguing that a system should be established to ensure women’s safety in the event of complications, and that clinics should make “the necessary renovations to meet the existing state law.”
This is exactly what Irvin began to work toward in 2012, shortly after her second abortion. Dismayed by the reality she saw at the New Orleans abortion clinic but inspired by the tenacity of the women around her, Irvin decided to do something to help them. Now, she is the Executive Director of the New Orleans Abortion Fund, an organization that raises money to support women, especially low-income women, who need abortions. Since its incorporation, Irvin’s group helped to fund over 1,500 abortions, with average gifts of $346 allocated to each person who needed financial assistance.
The Future of Abortion Law
Since its landmark rulings on Roe and Casey, the Supreme Court has made relatively few significant decisions about abortion law. And despite the addition of Kavanaugh and Gorsuch to the Supreme Court, it is unlikely that the court’s decision for June Medical Services will directly overturn Roe.
Yet, the decision may mark the beginning of a slow unraveling process that could result in the decimation, even without the legal elimination, of abortion protection laws in the United States. With Mitch McConnell at the helm of the Senate, 187 judges have been sent to the federal bench since 2017, and one-fourth of district court judges are Trump appointees.
Even as Irvin continues to raise thousands of dollars for low-income abortion seekers in Louisiana, their travel costs may dramatically shoot up if two clinics close. And as more and more abortion restrictions are written into law in conservative states, access will be restricted for many. Amy Irvin successfully received an abortion twice and has helped to fund over a thousand since, but not all abortion-seekers may end up as fortunate.