Eviscerating Access to Abortion Care Under Roe v. Wade
By Maya Manian | March 3, 2020
The United States Supreme Court is poised to eviscerate access to abortion care. On March 4, 2020, the Supreme Court will hear oral arguments in June Medical Services v. Gee. In June Medical Services, the Fifth Circuit Court of Appeals upheld a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. Four years ago in Whole Women’s Health v. Hellerstedt, the Supreme Court struck down a Texas law with precisely the same requirement because the Court recognized that admitting privileges laws serve no health benefits yet impose substantial obstacles to accessing abortion care.
So what has changed?
Justice Kennedy, who provided the fifth vote to strike down the Texas admitting privileges requirement in Whole Woman’s Health, retired. And Justice Kavanaugh’s occupation of Justice Kennedy’s seat on the Supreme Court portends an onslaught of new restrictions on reproductive rights. While many will focus on whether the Court will now outright overturn Roe v. Wade, that focus is misplaced.
Although the constitutional right to abortion exists in theory (for the moment), for many marginalized pregnant people the right to access abortion care is hollow. In reality, abortion care is increasingly difficult to access. The crisis of a post-Roe world is already here for low-income people seeking abortion care, especially for people of color who disproportionately live in poverty.
The crisis of a post-Roe world is already here for low-income people seeking abortion care, especially for people of color who disproportionately live in poverty.
When the Supreme Court issues its decision in June Medical Services, we should place less emphasis on the mere survival of a hollowed-out Roe and more emphasis on who can actually access the full spectrum of reproductive health care in the United States today.
Access to Abortion Care: Theory vs. Reality
Over the last several decades, anti-abortion forces have chipped away at access to abortion care through a variety of measures, including laws imposing targeted regulation of abortion providers (“TRAP” laws) and through violence directed at providers and clinics. TRAP laws are often designed to shut down abortion clinics by imposing burdensome, medically unnecessary requirements solely upon abortion providers, such as onerous licensing standards for clinics and admitting privileges requirements for providers. Currently, six states have only one abortion provider left and low-income women cannot obtain health care coverage for abortion care in most of the country due to the Hyde Amendment. As advocates of reproductive justice have emphasized, Roe v. Wade exists in theory but not in reality for many poor and marginalized pregnant people.
Even if the Supreme Court does not overturn Roe, it could effectively gut abortion rights simply by upholding admitting privileges laws.
For example, even if the Supreme Court does not overturn Roe, it could effectively gut abortion rights simply by upholding admitting privileges laws. The trial court in the June Medical Services case found that enforcing an admitting privileges requirement would eviscerate access to abortion care in Louisiana. In particular, the court found that as a result of the admitting privileges law, there would be only one abortion provider left in Louisiana to serve approximately 10,000 patients per year—an impossible task that would lead to longer wait times, increased crowding and increased associated health risks, and ultimately to “approximately 70% of the women in Louisiana seeking an abortion [being] unable to get an abortion in Louisiana.”
While all pregnant people would face reduced access to abortion care in Louisiana, the court found that the heaviest burdens would fall disproportionately on poor women. Louisiana ranks as the third poorest state in the United States and people of color in Louisiana are disproportionately likely to be living in poverty.
Doctors, Patients, and the Courts
In addition to rehearing the same question on medically unnecessary admitting privileges requirements, the June Medical Services case will also potentially undermine the longstanding rule that doctors can assert the constitutional rights of their patients in court challenges to abortion restrictions—known as the third-party standing doctrine. Third-party standing applies in a wide variety of contexts—not just in abortion cases—and serves to vindicate constitutional rights in situations where individuals would face some hindrance to asserting their own rights.
If the Supreme Court reverses long standing precedent on doctors’ ability to sue on behalf of their patients seeking abortion care, it will become significantly more difficult to challenge new abortion restrictions that are sure to come down the pike from hostile state legislatures.
If the Supreme Court reverses long standing precedent on doctors’ ability to sue on behalf of their patients seeking abortion care, it will become significantly more difficult to challenge new abortion restrictions that are sure to come down the pike from hostile state legislatures. In a nutshell, the Supreme Court could deploy technical rules about third-party standing to decimate access to abortion care without ever having to overturn Roe.
Attacking Access to Contraception
To make matters potentially even worse in the realm of reproductive health care, the Supreme Court has also agreed to decide on a challenge to the Trump administration’s rule allowing employers to exclude contraceptives from health insurance plans on broad religious or “moral” grounds. In addition to attacking access to abortion care, the Trump administration is seeking to eviscerate the ACA’s requirement of equitable health insurance coverage for women that includes coverage of contraceptives.
Looking Beyond Roe
In sum, even if the Supreme Court does not overturn Roe this year, the Court could permit so many anti-abortion obstacles that only the wealthy will be able to readily access the full spectrum of reproductive health care—replicating conditions that existed prior to Roe. Poor and low-income women already struggle to access abortion care due to the Hyde Amendment and to restrictions on insurance coverage for abortion care under the Affordable Care Act (ACA).
Especially given that President Trump has significantly reshaped the federal courts in ways hostile to reproductive health care access, reproductive rights and justice advocates must turn their attention to the question of who has access to abortion care even if a sliver of Roe survives.
Reproductive rights and justice advocates must turn their attention to the question of who has access to abortion care even if a sliver of Roe survives.
State legislatures are a potential avenue for change, particularly if they broaden access to contraception under state law and to abortion care through telemedicine and expanded availability of medication abortion. More equitable access to health care might be achieved with legislation that protects access to the full spectrum of reproductive health care, including contraception and abortion care, especially for low-income and vulnerable populations.
Maya Manian, J.D., is a visiting professor at the Howard University School of Law and a Ph.D. candidate in medical sociology at the University of California, San Francisco.
Photo credit: iStock.com/dkfielding