One-sixth of all pregnancy-related deaths were the result of illegal abortions in 1965. Doctors think that the actual figure was likely much higher than that when taking into consideration unofficial statistics. In 1973, Roe v. Wade ruled that legal abortion should be a constitutional right, saving the lives of thousands of women.
On March 11th of this year, the United States Supreme Court heard arguments in the case of June Medical Services v. Russo. The case has reached the highest court in the United States after being approved in a Louisiana appeals court in 2018. Some see the case as part of the continuing efforts of anti-abortion conservatives, recently even more empowered by President Trump’s election and administration, to overturn Roe v. Wade and roll back abortion rights.
What is Act 620?
The case in question challenges a 2014 Louisiana state law, Act 620, that requires abortion providers to have admitting privileges to hospitals nearby the clinic where they provide abortions. Admitting privilege is the right of a doctor to admit patients to a hospital or medical care facility.
It is imperative to note that a virtually identical Texas law, Texas House Bill 2 (H.B. 2), was deemed unconstitutional by the Supreme Court in 2016. In the Texas case, the Supreme Court ruled that the law created an “undue burden” on abortion access.
In April 2017, a Louisiana district court referred to the Supreme Court opinion in the 2016 Texas case in order to strike down the act. The state of Louisiana, known as “Ground Zero” of the pro-life movement against abortion, appealed the district court’s decision and, in September 2018, Lousiana’s Act 620 was approved by the Fifth Circuit Court of Appeals.
It is very rare for appeal courts to disregard Supreme Court precedent in this manner. Just a month after the Fifth Circuit refused to rehear the case in January 2019, the Supreme Court stepped in. The Supreme Court agreed to hear the case in question in October 2019.
What’s at Stake?
At first glance, Act 620 appears to be in the interests of women’s health in the case of emergency. After all, why would one argue that doctors shouldn’t be required to ensure their patients’ safety to the best of their abilities? Those who oppose the law, including the four liberal Supreme Court justices, argue, however, that the law’s conditions would effectively eliminate abortion throughout the state of Lousiana.
Evidence cited in the 2016 Texas case demonstrated that the safe, non-surgical nature of the majority of abortions renders the procedure very reliable, almost never requiring hospital treatment. Thus, hospital admitting privileges have been shown to have little impact on the health outcomes of those receiving abortions. Obtaining admitting privileges can be extremely challenging for abortion providers as a result of stigma and strong religious belief surrounding the procedure. As a result, the abortion clinics that employ doctors who could not obtain privileges would be forced to close.
In 2016, Justice Ruth Bader Ginsburg led the opposition to H.B. 2, emphasizing the low-risk nature of abortion procedures and the great obstacles that Texas women would have to overcome in order to access abortion should the law pass. In 2020, similar arguments against the Act 620 are resurfacing.
It is certain that the state of Louisiana is no stranger to abortion restrictions. Since 1973, when the Supreme Court established a constitutional right to abortion in Roe v. Wade, the state has managed to enact the most abortion restrictions out of any state in the country. Currently, there are only three abortion clinics in the state of Louisiana. Depending on the outcome of the case in question, there may be just one left standing.
Why Now?
When the Texas case was struck down in 2016, three conservative judges were clear in their intentions to support the law. Had Justice Anthony Kennedy sided with conservatives on the bench, a 4-4 split would have upheld a lower court decision in favour of the law.
Since 2016, two justices have been appointed to the Supreme Court by President Trump. Trump’s two appointees, Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, have secured a conservative five-member majority and provide a very visible example of the Trump’s administration’s deep impact on the American judicial system.
Since Trump’s inauguration, over 150 federal judicial nominees have been confirmed. Trump’s choice of judges has been overwhelmingly white, male and, perhaps most importantly, young. On average, the circuit court judges that President Barack Obama appointed are ten years older than Trump’s appointees. Consequently, Trump’s impact on the judicial system, including the Supreme Court, will be felt for decades to come.
As a result of Trump’s appointments, the Supreme Court no longer has an abortion swing vote. However, Chief Justice John Roberts may take on this role. In February 2019, he joined the court’s four liberals in a 5-to-4 vote when the Supreme Court temporarily blocked Act 620.
During recent proceedings, Justice Roberts, although conservative and typically opposed to abortion rights, asked questions geared at determining how bound the Court should be by the 2016 Texas decision. These questions may imply that a vote against the law from Roberts would likely be on the basis of upholding the integrity and power of Court precedent regarding similar language in Texas H.B. 2.
If the court’s conservative contingency succeeds in passing this law, Trump will likely use the outcome as a symbol of his promise to evangelical and religious right-wing voters to oppose abortion and uphold conservative values in the judicial system. Daniella Vinsion, a political science professor at Furman University, explained: “It’s the one thing that unquestionably all conservatives look at the courts and say, ‘Yup, that’s an accomplishment.’”
As the first major abortion case since Trump’s nominees joined the court, the outcome of the case will demonstrate the direct influence of the Court’s newfound conservative bend. Kathleen Pittman, the director of Hope Medical Group for Women, one of the three abortion clinics in Louisiana, synthesized the stakes of the case simply: “Roe means nothing if you can’t access abortion.”
Edited by Sophia Rafuse.
The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Studies or the Political Science Students’ Association.
Image via Wikimedia Commons.
