How the Court Could Limit Abortion Rights Without Overturning Roe

The Atlantic wrote:

No matter which path the court takes, the destination will likely be the same—the end of access to safe, legal abortion for many women.

October 8, 2019

Assistant professor of law at the University of Michigan

How the Court Could Limit Abortion Rights Without Overturning Roe - The Reports Abortion-rights activists in front of the U.S. Supreme Court on May 21Andrew Caballero-Reynolds / AFP / Getty

Sometime in the next nine months, the Supreme Court is set to hear arguments in June Medical Services v. Gee, a major Louisiana case that could shape the future of legal abortion in America. The case does not technically threaten Roe v. Wade: Louisiana and its supporters have not asked the Court to formally overturn Roe (the decision establishing women’s constitutional right to terminate a pregnancy). Instead, they have provided the Court with several different avenues for limiting abortion rights—largely by overruling cases other than Roe or limiting them so they are practically meaningless.  

The Court seems interested in taking up Louisiana’s invitation, since the Court chose to grant the state’s petition to consider these additional arguments in its decision to hear the case. The briefing in the case provides a glimpse into how a ruling for Louisiana could allow states to end legal abortion without overruling Roe—and also allow the Court to test the waters on whether to ultimately overturn Roe.

June Medical involves a Louisiana law requiring abortion providers to obtain admitting privileges at hospitals within 30 miles of where the providers perform abortions that is identical to a Texas law the Court invalidated just three terms ago. In its brief, Louisiana first asks the Court to “narrow” and “limit” that recent decision, Whole Woman’s Health v. Hellerstedt. In that case, the Court held that lower courts must determine that an abortion restriction actually advances a valid purpose—protecting women’s health and safety—and not merely hypothesize that the law might serve such a purpose. And the Court additionally clarified that lower courts must weigh the benefits a law offers against its burdens, and that Texas was wrong to say that women were not burdened if they lived farther than 150 miles from an abortion provider—the distance to an abortion provider that the U.S. Court of Appeals for the Fifth Circuit held did not unduly burden women’s ability to obtain an abortion.

In June Medical Services, Louisiana is asking the Court to restrict both of these principles. It seeks a ruling that an abortion restriction is legitimate so long as a legislator might think that the restriction serves a valid purpose, rather than that the restriction actually serves a valid purpose. It also asks the Court to distinguish the Louisiana law from the Texas law on the ground that the Texas law closed more clinics and may have left a greater number of women greater distances from an abortion provider. If accepted, both of these arguments would leave Whole Woman’s Health technically intact, though states would nevertheless be able to enact restrictions that shut most if not all clinics in a given state. Doing so would also give the Court a chance to test the waters on whether there would be significant public backlash if the Court chooses to overrule an important decision on reproductive rights, which might influence the Court’s decision down the road on whether to overrule Roe itself.

Louisiana and its supporters have advanced several other arguments that likewise function as trial balloons on whether to overrule Roe. The state filed its own petition for certiorari in the case, which the Court granted along with the clinic’s petition. In the state’s petition, Louisiana asked the Court to overrule the doctrine that allows doctors and clinics to assert their patients’ constitutional rights. Generally, regulated parties (like the doctors in this case) can assert another person’s constitutional rights when the regulated party is the subject of a statutory penalty (as are the doctors who perform abortions without admitting privileges).

If the Court were to hold that abortion providers cannot challenge abortion restrictions, then finding plaintiffs to challenge abortion restrictions before the restrictions go into effect would become more challenging. That would also allow states to readily enforce laws that would close clinics, and those clinics might never reopen if a law is later invalidated. In this case, it would mean that Louisiana’s law (which reduces the number of doctors performing abortions in the state to one) would go into effect.

In an amicus brief, Senator Josh Hawley, who has criticized judicial nominees for not being anti-abortion enough, has asked the Court to overrule the decision holding that an abortion restriction is invalid if it burdens a large fraction of women who are affected by the restriction. Louisiana echoed this argument in its brief as well. Instead it would have courts determine whether an abortion restriction burdens all women in a state. Under this logic, if a law left one clinic or one provider in one major metropolitan area, then the law might be allowed to stand. Again, it is not difficult to see the implications of this change in the law—more clinics would close.

That the Court chose to grant the state’s cross petition, which asserted these arguments, rather than merely granting the clinic’s petition, is a sign that the Court is interested in considering ways to limit abortion access short of overturning Roe v. Wade. If the Court does so, Roe will remain the official interpretation of the law of the land, but it will be an interpretation with no real power, and the right it guarantees will be meaningless in practice. No matter which path the Court takes, overruling Roe or limiting it into oblivion, the destination will be the same—the end of access to safe, legal abortion for many women.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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Leah Litman is an assistant professor of law at the University of Michigan Law School. She is also one of the counsel for the Hernandez family.

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