Opinion|How the Supreme Court's Inaction Could Decide the Future of Abortion
How the Supreme Court's Inaction Could Decide the Future of Abortion
If the justices fail to intervene in our case, the future of Roe v. Wade will be in enormous jeopardy.
By Nancy Northup
Ms. Northup is the head of the Center for Reproductive Rights, which represents Louisiana abortion providers in June Medical Services v. Gee.
CreditCreditAndrew Harnik/Associated Press
Unless the Supreme Court takes action by Thursday, Louisiana may be down to one or two abortion-care doctors for nearly a million women of reproductive age across the state.
My organization, the Center for Reproductive Rights, has filed an emergency motion with the Supreme Court, asking it to put on hold a medically unnecessary law in Louisiana that requires doctors who perform abortions to have admitting privileges at a hospital no more than 30 miles away.
The law is identical to a Texas law that the Supreme Court struck down less than three years ago, ruling that it had no medical benefits and would harm women by reducing their access to abortion.
That could happen in Louisiana if the justices fail to block the state's unconstitutional law from going into effect on Thursday. If the court doesn't follow decades of its own precedents on the constitutional right to abortion, the procedure will be available only in theory for women in Louisiana.
All that's needed in the Louisiana case, June Medical Services v. Gee, is a straightforward application of the court's most recent abortion rights ruling, Whole Woman's Health v. Hellerstedt. That 2016 decision regarding the Texas admitting-privileges rule rebuked state lawmakers for the torrent of laws — more than 400 — that they have enacted since 2010 restricting abortion access based on spurious claims and fake science, and often imposing regulations that are impossible to comply with.
Lower courts in Mississippi and Oklahoma have heeded the Supreme Court's ruling in the Whole Woman's Health case, blocking admitting-privileges laws. (Tennessee and Alabama chose not to continue defending their own similar laws.)
But not Louisiana. The state has continued to defend its copycat admitting- privileges law despite its clear conflict with the Whole Woman's Health case, which my organization argued and won.
The Federal District Court that heard the Louisiana case struck down the law as a serious burden on women's access to abortion, finding that the state did not provide "evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment."
So it was astonishing that, in flagrant disregard for the Supreme Court's ruling, a panel of the Court of Appeals for the Fifth Circuit, in New Orleans, upheld the law in September. This month judges denied our request for a rehearing by the full court.
Now the Supreme Court justices must block the law while we ask the court to review our case. The Supreme Court is not a legislature. The justices vowed, as nominees, to follow precedent, not upend it because one justice has retired and another taken his or her place. Even the dissenters in Whole Woman's Health, who include Chief Justice John Roberts, are obliged now to follow and apply it.
It's also alarming that all that's required for Roe v. Wade to be eroded and Whole Woman's Health to be a dead letter is for the court to do nothing, creating an outcome that is unfaithful to existing law.
This is likely not the last time the Supreme Court will be in this position. Lower courts around the country will consider, in the coming months, perhaps a record number of unconstitutional abortion restrictions, and if other courts go rogue, as the Fifth Circuit did here, the Supreme Court must intervene to preserve the rule of law.
If the Supreme Court fails to do so in the Louisiana case, the consequences will be dire for women there. The state has just three clinics, down from 11 in 2000. If the law goes into effect, more will be forced to close because it's so difficult to secure admitting privileges. Close to 10,000 women seek abortions in Louisiana each year, and one or two doctors cannot care for all of them.
Women who still have access to abortion services would face delays, be forced to travel long distances and have to endure other obstacles that could harm their health. Undoubtedly, some women will seek out unlicensed or unsafe abortions, or be compelled to carry an unwanted pregnancy to term. The hardships will be greatest for women in poverty, who already face the greatest barriers to access.
So far this year, state legislators around the country have proposed more than 100 bills that would further restrict abortion. Anti-abortion politicians are hoping that the Supreme Court will stand by and let them legislate abortion out of reach — without the court ever having to reverse Roe v. Wade and related cases assuring access to abortion. That would be death to Roe by a thousand cuts.
The rule of law is on the line, and so is the ability of women in Louisiana and beyond to make their own health decisions and control their own fate.
This article has been updated to reflect news developments.
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A Woman's Rights
Nancy Northup is the president and chief executive of the Center for Reproductive Rights.
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