Her Body, Their Choice

By: Annabelle Abel

Abortion Rights in the Age of Kavanaugh, Gorsuch, and June Medical Services, LLC v. Gee

On October 4, 2019, the Supreme Court granted certiorari to hear June Medical Services, L.L.C. v. Gee, a Louisiana case asking the court to decide the legitimacy and legality of state mandated burdens on the professionals and clinics that provide abortions. [1] The true significance of this case comes not in the issues posed, but in the makeup of the court in the current Trump Administration era.[2] With the appointments of Neil Gorsuch and Bret Kavanaugh by President Trump in 2017 and 2018, the Court will have the opportunity to debate abortion rights for the first time.[3]

 

A Numbers Game

In a 2016 Texas case, Whole Woman’s Health v. Hellerstedt, the Supreme Court found two state mandated abortion restrictions unconstitutional because the restrictions would do little to protect women, and instead, make abortions significantly more difficult for Texas women to access.[4] Of the eight sitting justices, five justices (Justice Kennedy, Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan) joined in the majority while three justices (Chief Justice Roberts, Justice Thomas, and Justice Alito) dissented.[5]

Substantively, both Whole Woman’s Health v. Hellerstedt and June Medical Services v. Gee are similar. Thus, in the weeks following the grant of certiorari, the social preoccupation of those following the case is less how it will be decided, but rather, who will decide it and in what majority makeup.[6] Assuming the still sitting justices approach this case identically to Hellerstedt, four justices will find an undue burden on women seeking legal abortion, and three justices will not.[7] However, Justice Kavanaugh and Justice Gorsuch radically shake up this calculation. Further, considering their conservative backgrounds and appointing president, it seems increasingly likely that June Medical Services v. Gee will come out opposite to its predecessor of only three years because, after all, the Supreme Court is the only judicial entity that can overrule Supreme Court precedent.[8]

 

The Realistic Impact

The historic 1973 case of Roe v. Wade held that a state may not regulate a woman’s abortion decision in the first trimester.[9] While this landmark decision made it difficult for states to outlaw abortion completely, it incentivized conservative states to find loopholes by placing limits and restrictions on abortion rights, which in turn made access to abortion increasingly difficult without formally outlawing abortion.[10] The regulations at the center of Hellerstedt aimed to require any Texas physician performing an abortion to have admitting privileges at nearby hospitals while also requiring abortion clinics to house surgical suites and operating rooms.[11] Facially, these laws aimed to protect women, while in actuality, the laws made abortions nearly impossible to provide due to the unnecessary costs and credentials required of providers.[12] Further, the regulations, if upheld by the Supreme Court, would have caused some women to drive upwards of 300 miles to obtain a safe, legal abortion in the state of Texas.[13]

Today, the Supreme Court is grappling with much of the same dilemma but, from a very different partisan perspective. In the present case at issue, the constitutionality of a Louisiana law requires abortion providers to obtain admitting privileges at hospitals within a thirty-mile radius to their abortion facilities is up for debate.[14] As is the common theme of most post-Roe cases, June Medical Services v. Gee does not aim to overturn Roe, but rather aims to limit it drastically.[15]

 

What will the Court do?

 While the Court could follow the holding in Hellerstedt, this seems unlikely considering the new makeup of the court.[16] More realistically, the Court will provide a majority opinion that sides with state abortion legislation without completely outlawing abortion.[17] While this likely solution does not do away with the legality of abortion, critics fear that by allowing states to limit abortion through legislative initiatives, access to abortions will be so negatively impacted that Roe v. Wade will become virtually powerless.[18]

Religion and politics aside, abortion is a crucial component to women’s access to reproductive healthcare and autonomy as a woman’s ability to choose heavily impacts her career, finances, and overall timeline. While a formal opinion to June Medical Services v. Gee will likely not be announced until next summer, the months to come leave room for advocates to educate, donate, and vote.

 

[1] Linda Greenhouse, A Supreme Court Abortion Case That Tests the Court Itself, The New York Times (Oct. 10, 2019), https://www.nytimes.com/2019/10/10/opinion/supreme-court-abortion.html.

[2] Ian Millhiser, The Fight to End Roe v. Wade Enters its Endgame Next Week, Vox (Sept. 27, 2019), https://www.vox.com/2019/9/26/20873873/supreme-court-gut-roe-v-wade-next-week-abortion.

[3] Id.

[4] Whole Woman’s Health v. Hellerstedt, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/whole-womans-health-v-hellerstedt.

[5] Whole Woman’s Health v. Hellerstedt, Oyez (Jun. 27, 2019), https://www.oyez.org/cases/2015/15-274.

[6] Leah Litman, How the Court Courld Limit Abortion Rights Without Overturning, The Atlantic (Oct. 8, 2019) https://www.theatlantic.com/ideas/archive/2019/10/how-june-medical-services-v-gee-could-restrict-legal-abortion/599560/.

[7] Id.

[8] Id.

[9] Roe v. Wade, Oyez (Jan. 22, 1973), https://www.oyez.org/cases/1971/70-18.

[10] Roe v. Wade: The Constitutional Right to Access Safe, Legal Abortion, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade

[11] Id.

[12] Litman, supra note 6.

[13] Id.

[14] Greenhouse, supra note 1.

[15] Litman, supra note 6.

[16] Millhiser, supra note 2.

[17]  Id.

[18] Litman, supra note 6.