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I Argued the Last Abortion Case Before the Supreme Court. The One Before the Justices This Week Is Identical

6 minute read
Stephanie Toti is Senior Counsel & Project Director at the Lawyering Project, a legal advocacy organization that blends traditional impact litigation with movement lawyering to promote reproductive health, rights, and justice throughout the United States. She successfully argued Whole Woman’s Health v. Hellerstedt to the Supreme Court in 2016.

Four years ago, I stood before the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt, arguing against a pair of Texas laws that would have shuttered abortion clinics across the state. The Supreme Court’s decision in that case was a powerful reaffirmation of the right to abortion, holding that states may not impose unjustified burdens on people seeking abortion care. Despite that precedent, in 2018, a federal appeals court upheld a Louisiana law that mirrors one of the Texas laws struck down in Whole Woman’s Health, requiring abortion providers to maintain admitting privileges at a local hospital. The Supreme Court agreed to review the case, called June Medical Services, LLC v. Russo. It will hear oral argument on March 4 and issue a decision before the end of its term in June. Although the composition of the Supreme Court has changed since 2016, the reasons for striking down an admitting-privileges requirement have not.

For nearly 50 years, the Supreme Court has recognized abortion as a fundamental constitutional right—and for good reason. This right enables all of us to make decisions about intensely personal matters like pregnancy and family based on our own beliefs and values. It enables those of us with the capacity to become pregnant to maintain control over what happens to our bodies and to participate fully and equally in society. Under existing precedent, states may regulate abortion to the same extent as other medical care, but they may not single out abortion for “[u]nnecessary health regulations.” This ensures that states hostile to abortion rights cannot chip away at them under the guise of health care regulation.

The admitting-privileges requirement struck down in Whole Woman’s Health was the epitome of an unnecessary health regulation. Although Texas insisted that the law would protect patient health, the evidence showed that it provided no benefits to abortion patients and that doctors providing riskier procedures—such as colonoscopy—in outpatient settings were not required to have admitting privileges. Abortion patients almost never require hospitalization, and in the rare instances when they do, hospitalists—doctors who specialize in treating patients in the hospital—can and do provide them with the necessary care. Indeed, the Supreme Court noted that, “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case,” and this was “consistent with the findings of the other Federal District Courts that have construed the health benefits of other states’ similar admitting-privileges laws.” In short, the health rationale asserted by Texas and other states was merely a pretext for enacting a requirement that would decrease the availability of abortion care.

Doctors may be denied admitting privileges for a host of reasons unrelated to the quality of care they provide. According to the Society of Hospital Medicine, hospitals often condition admitting privileges on a doctor’s ability to admit a certain number of patients each year. Doctors specializing in abortion care cannot meet such admission targets because abortion patients rarely require hospitalization. Hospitals may also deny admitting privileges for business reasons, excluding physicians who work in places that the hospital views as competitors, or whose medical practices are unlikely to bring financial benefit to the hospital. Some hospitals are simply unwilling to have an abortion provider on staff. A hospital in Texas’ Rio Grande Valley sent one of my clients in the Whole Woman’s Health case a letter stating that its decision to deny his application for admitting privileges was “not based on clinical competence considerations” without further elaboration. Because of the difficulty that abortion providers have obtaining admitting privileges, Texas’ admitting-privileges requirement caused nearly half of the abortion clinics in the state to close during the brief time that it was in effect.

In upholding Louisiana’s admitting-privileges requirement, the U.S. Court of Appeals for the Fifth Circuit surmised that the law would reduce abortion access to a lesser extent than its Texas counterpart. That supposition is belied by the evidentiary record, which shows that the law would force most Louisiana abortion clinics to close, leaving just one abortion provider in the entire state. But in any event, the fact remains that the requirement is an unnecessary regulation that provides no medical benefits. It is an arbitrary exercise of state power that serves no purpose other than to restrict the pool of doctors who are lawfully able to provide abortion care in Louisiana.

Limiting the number of abortion providers can have devastating impacts on people seeking abortion care. Fewer providers means longer waits for an appointment at an abortion clinic. Every day that a person is delayed from having an abortion, that person must deal with the physical symptoms of pregnancy. The health risks associated with pregnancy and abortion also increase as pregnancy progresses, and the cost of an abortion rises significantly after the first trimester. Delay makes it harder to conceal a pregnancy, threatening a person’s privacy and putting those with abusive partners or family members at risk. A person delayed past 10 weeks of pregnancy is no longer eligible for a medication abortion, and a person delayed past 20 weeks is prohibited from obtaining an abortion in Louisiana at all. Fewer abortion providers also means that patients must travel longer distances to access care, which adds to the expense and logistical challenges of obtaining an abortion. These burdens are felt most acutely by those with the fewest resources and least control over their living situations and conditions of employment.

Since Louisiana’s admitting-privileges requirement is an unnecessary health regulation, respect for precedent requires that it be struck down. Although many commentators are skeptical that the Supreme Court will abide by precedent in matters concerning abortion, I still have faith in the rule of law and hope that a majority of Justices continue to recognize the critical importance that the right to abortion has in so many people’s lives.

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