Roe v. Wade and June Medical Services v. Russo

By Christy Zheng

On the sidewalk in front of the Supreme Court Building, pro-life and pro-choice demonstrators gathered on their respective halves as the justices inside heard oral arguments for June Medical Services v. Russo, the first major abortion case during Trump’s presidency. The case has the potential to strengthen abortion rights, or substantially reduce them. Almost 50 years after the Supreme Court delivered its verdict for landmark case Roe v. Wade (1973), June Medical Services v. Russo reflects simmering tensions that remain on the issue as both sides face their next major battle.

June Medical Services v. Russo is really two cases consolidated into one. The first concern is whether it is unconstitutional to require physicians who perform abortions to have admitting privileges at a hospital. With admitting privileges, physicians who performed abortions would be able to treat their patients at a hospital, should complications arise. Prosecutors are challenging a 2014 Louisiana law that had the stipulation, which lawmakers claimed was a necessary safety precaution.

Pro-choice advocates call it a blatant attempt to restrict abortion rights. It is very difficult for physicians performing abortions to obtain admitting privileges, which critics say usually come from a business relationship between the physician and the hospital. As a result, the vast majority of abortion providers in Louisiana do not have admitting privileges. Hope Medical Group for Women, an abortion clinic in Shreveport, Louisiana and a plaintiff in the case, only one physician on its staff has admitting privileges, because he works for the hospital as well. The requirement would force at least two of Louisiana’s three abortion clinics to close. Critics also point out that abortions are a relatively safe medical procedure. Only 0.05% of outpatient abortions create major complications when performed in the first trimester. Should complications arise, the patient can be admitted to any hospital, regardless of admitting privileges.

Four years ago, the Supreme Court sided with the abortion clinics. If the facts of June Medical v. Russo sound familiar, it’s likely because the case strongly resembles Whole Women’s Health v. Hellerstedt (2016), which concerned a Texas law that required abortion performing physicians to have admitting privileges. The Texas law also required abortion clinics to meet the same standards as ambulatory surgical centers. The justices looked to two landmark abortion cases for precedent: Roe v. Wade and Planned Parenthood v. Casey (1992). The former, Roe v. Wade, prohibits states from banning abortion in the first trimester and only permits restrictions in the second trimester if the mother’s health is in danger. Planned Parenthood v. Casey held that restrictions on abortion that caused “undue burden” were unconstitutional.

In a 5-3 decision, the Supreme Court struck down the law, ruling it unconstitutional because it “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” When abortion clinics challenged the Louisiana law, the 5th Circuit Court went against the precedent and upheld the law. The Center for Reproductive Rights appealed and the Supreme Court accepted the case.

It’s not just the Louisiana law that is at stake, however. The justices will also determine whether abortion clinics are allowed to sue on behalf of their patients— in legal terms, whether they have third-party standing. This is the other key component of the case. Generally, plaintiffs must bring their own cases to court and cannot go through a third party. However, the Supreme Court has allowed exceptions, which are called third-party standing. In these cases, “the party asserting the right has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” (Warth v. Seldin, 1975).

In previous abortions cases, the Supreme Court has granted third-party standing to abortion providers. “The constitutionally protected abortion decision is one in which the physician is intimately involved,” wrote Justice Harry Blackmun (Singleton v. Wulff, 1976). The Trump administration and Louisiana have both asked the Supreme Court to deny abortion providers third-party standing in the case. Pro-life advocates believe that abortion providers, especially ones the charge money for abortions, should not be allowed to go to court on behalf of their patients, claiming that, as businesses, abortion providers do not have their patients’ best interest at heart. “This is like a fox guarding the hen-house situation,” says Mallory Quigley, vice president of communications at Susan B. Anthony List, an anti-abortion organization.

If the Supreme Court agrees, all future cases regarding restrictions on abortion will be affected. The plaintiffs would have to be pregnant women seeking abortions, because their constitutional right to an abortion is being limited by the restrictions, not their doctor’s or clinic’s. They would then be subjected to questioning, testaments, and other arduous tasks, repeatedly, at a vulnerable and emotional time. If the case made it to the Supreme Court, the entire process would almost certainly take so long that the women will have given birth by the time a verdict is reached. Pro-choice advocates argue that if clinics could no longer argue on behalf of their patients, it would be much more difficult to bring cases to court because of the strenuous demand placed on the plaintiff.

Since Whole Woman’s Health v. Hellerstedt, the composition of the Supreme Court has changed significantly. Justice Anthony Kennedy, long considered a swing vote, had sided with the four liberal justices in Whole Woman’s Health v. Hellerstedt. He has since retired and was replaced by Justice Brett Kavanaugh, who was appointed by President Trump. Justice Neil Gorsuch, another Trump appointee, replaced late Justice Antonin Scalia. The other three conservative justices, Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas all voted to uphold the Texas law in Whole Woman’s Health v. Hellerstedt. This makes a 5-4 conservative majority. The four liberal justices all voted against the Texas law in 2016.

Ideologies have also shifted in the last few years, with more Americans considering themselves “pro-life” than “pro-choice”, 49% and 46% respectively, in a 2019 Gallup poll. The same poll found that 21% of Americans believed that abortion should be illegal under all circumstances, and 53% believed it should be legal only under certain circumstances. The shift is especially prominent in Louisiana and neighboring states like Alabama, where over half of the population believes that abortion should be illegal in all or most cases. 57% of adults in Louisiana believe abortion should be illegal in all or most cases, significantly higher than the national average, according to data by the Pew Research Center.

These changes worry Pro-choice advocates, who fear overturning Roe v. Wade altogether, in the worst case scenario. Even if Roe v. Wade stands, however, the Louisiana law could still severely restrict abortion by limiting the number of available abortion providers." If the Supreme Court doesn't step up and rule in our favor, they will have found a way to successfully erode Roe v. Wade so much so that it doesn't matter anymore," Kathleen Pittman, administrator of Hope Medical Group for women, one of the the abortion providers in Louisiana. "Because when it comes to abortion, if you can't get to where you need to be, then it might as well be illegal."

Pro-life advocates are hoping the case will the chance to restrict abortions that they were waiting for, as well as an opportunity to share their side. “But when you humanize it, when you see that abortion is not good for women, it becomes so much more significant to understand the stories and to understand the plight of women in unplanned pregnancies and the lack of support that they’re getting,” said Angie Thomas, associate director of Louisiana Right to Life.

If the Louisiana law is upheld, it may lead to similar laws in other states. In 2013, Wisconsin had an abortion law requiring admitting privileges to hospitals within 30 miles of the clinic for abortion providers, before it was struck down in the 7th Circuit Court of Appeals. Judge Richard Posner, sharply rebuked the law, writing in the opinion statement: “they may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.”

Thus far, the Supreme Court has blocked enforcement of the law temporarily in a 5-4 decision, with Chief Justice Roberts voting with the liberals. But this is just the beginning. The Supreme Court will likely rule on the case in late June. Until then, advocates from both sides are waiting with bated breath.