It’s Happening: A Case That Could Seriously Undermine Roe v. Wade Is Before SCOTUS

UPDATE, October 4, 2019: The Supreme Court announced this morning that it will take up the first abortion case since conservative Justice Brett Kavanaugh was confirmed to the court. How they rule will have major implications for the future of Roe v. Wade.

The case of June Medical Services v. Gee concerns a Louisiana law—currently blocked from going into effect during the legal battle—that would require physicians performing abortions to have admitting privileges at a nearby hospital. There is no medical justification for this requirement. The law is what's known as a TRAP law, which targets doctors who provide abortion care and imposes regulations designed to make abortions incredibly difficult to get, regardless of whether those regulations make any medical sense. "TRAP laws are coercive barriers that prioritize extreme ideology over the health, rights, and personal autonomy of people in the United States," Megan Donovan, a senior policy manager at the Guttmacher Institute, said in a statement.

Abortions are already incredibly difficult to access in Louisiana (there are only three clinics currently in operation). If this law goes into effect, it would mean most women in Louisiana would have to travel over 150 miles to get an abortion—a particular blow for women without the resources to take time off work or to travel a long distance.

What makes this case so significant is that the Court heard a nearly identical Texas case back in 2016—and deemed the law unconstitutional.

“Louisiana is openly defying the Supreme Court’s decision from just three years ago, in which they found an identical Texas law unconstitutional,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “We are counting on the Court to follow its precedent, otherwise, clinics will needlessly close and there will be just one doctor left in the entire state to provide abortion care.”

How the Court rules in this case will either solidify the constitutional right to access abortion in the United States or undermine Supreme Court precedent, making the rights guaranteed by Roe v. Wade vulnerable.


UPDATE, February 8, 2019: The Supreme Court has officially blocked a restrictive Louisiana abortion law—at least for now.

Justice Brett Kavanaugh’s confirmation, which officially cemented a conservative majority on the Supreme Court, sparked a lot of questions. Namely: What will happen to abortion rights? With a new case heading to the Supreme Court, the answer is already unfolding.

Last month lawyers brought a case before SCOTUS that could have major consequences for the future of Roe v. Wade. Here's the rundown: The Center for Reproductive Rights filed an emergency motion asking the Supreme Court to block legislation that would make getting an abortion in the state of Louisiana more difficult. The law requires doctors performing abortions to have admitting privileges at a nearby hospital. If it's allowed to go into effect, fewer clinics in Louisiana will be able to provide abortions. (As it stands, Louisiana has only three abortion clinics in the entire state.)

It would be a major threat to women in Louisiana seeking abortion care, because most women would have to travel over 150 miles to get an abortion. Translation: “The right to accessing legal abortion could be virtually extinct [in Louisiana],” says TJ Tu, a lawyer with the Center for Reproductive Rights who is working on the case.

This week, in a 5-4 decision, SCOTUS stepped in to temporarily block the law until they can hear an official appeal later this year. Justice Brett Kavanaugh wrote the dissent.

But the case isn't over—how the Justices handle this Louisiana law will send a powerful message to state lawmakers about whether or not SCOTUS will defend Roe v. Wade.

What This Means for Roe v. Wade Right Now

Since Kavanaugh’s confirmation, there’s been a lot of talk over whether the Supreme Court will overturn Roe v. Wade. But that’s not the most serious threat to a woman’s right to choose, according to legal experts. States are passing legislation that openly defies the landmark ruling, banking on the hope that a conservative Supreme Court will endorse those policies—either by declining to hear appeals on lower-court case rulings, or backing those that do make it to the court. From Alabama to Ohio, laws effectively stripping women of the right to safe, legal abortion are racking up. “Antichoice legislators have effectively declared open season on women’s constitutional right to an abortion,” Tu says.

That’s why the Louisiana law (and whether it’s ultimately struck down by SCOTUS in an appeal) is so important. "It shows courts can effectively gut the right to abortion without overturning Roe,” Tu says. “This has been the fear of advocates for years—that concern is becoming a reality.”

What Happens Next

This isn’t the first time an abortion-related case has been brought to the Supreme Court since Kavanaugh was confirmed. In December, SCOTUS declined to rule on two cases involving Planned Parenthood. “They may have decided this is not the year to stick their necks out following [the controversy over] Kavanaugh,” says Carol Sanger, a professor at Columbia Law School and author of About Abortion: Terminating Pregnancy in Twenty-First-Century America.

The Court will likely hear an challenge to the law (where lawyers will present their case based on merits) this fall, reports the New York Times. It raises serious questions, Tu says, about whether standing precedents on abortion matter to the judges. (In 2016, SCOTUS struck down a nearly identical law in Texas after determining it was unconstitutional.) “Even justices that have disagreed with some recent abortion cases have said it’s important that precedents are followed and that lower courts do what the Supreme Court has ruled,” he says. In other words, the pending case gets right to the heart of the legal fight over Roe: Should previous rulings like Roe v. Wade be respected and upheld? “This case puts that question directly to the justices,” Tu says.

The Court's decision to temporarily block the law signals that they will respect precedent, at least for the time being. Chief Justice John Roberts joined the liberal Justices on the Court to form the majority—an eyebrow-raising departure from his usual stance on abortion. (Roberts dissented the ruling on the Texas law in 2016.)

So what does this all mean for the future of abortion rights? Tu says the Louisiana case is the canary in the coal mine. “It’s the product of a decades-long effort by antichoice legislators in that state to effectively kill the right to abortion without overturning Roe,” he says. “And if they can do it Louisiana, they can do it anywhere.”

Macaela MacKenzie is the senior health editor at Glamour. Follow her on Twitter @MacaelaMack.

Originally Appeared on Glamour