320 Miles: Will the Conservative Court Take Abortion Restrictions Too Far?

The crowd outside the US Supreme Court on March 4, 2020 (photo by Rachel Deitch)

The push to protect reproductive rights has never been stronger, necessitated by the growing wave of conservative-leaning judges and religious conservatives trying to control what women do with their bodies. Yet, as anyone who walked past the Supreme Court during arguments in June Medical Services LLC v. Russo last week could see, conservatives are outnumbered on the issue. At stake in this particular case, according to SCOTUS blog, is

[w]hether the US Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

In other words, the court already decided that such a requirement places an undue burden on women seeking abortions, but that was in 2016 and the makeup of the court has changed.

Sam Gerard, communications associate with the American Humanist Association (AHA), was at the March 4 rally and noted how “refreshing [it was] to see the broad support for reproductive health access, as well as the variety of signs from demonstrators showing that there was support across many advocacy spaces.”

The case brought some unlikely allies together to stand up to the onslaught of the current administration’s agenda on reproductive health, including religious pro-choice protestors from Catholics for Choice and the National Council of Jewish Women. AHA Education Coordinator Emily Newman observed that “[t]oo often abortion gets reduced to an argument for or against religion and ignores the person the situation is actually impacting.” It’s refreshing to see both secular and religious protestors advocating side by side for women’s rights.

Unfortunately, pro-life protestors resorted to their usual rhetoric. Standing in line to get into the court, I heard them cite the Bible, proclaim the need for God to “save” pro-choice advocates, and assure all in attendance that the Louisiana law stood only to protect women. In fact, that’s the hill they claim to be dying on; throughout their demonstration the anti-choice protesters shared horror stories of abortions gone wrong and the need for “protection.” This is a typical tactic of misinterpreting facts and gaslighting the issues. Abortions are, in fact, one of the safest medical procedures, but pro-lifers pretend we still exist in a time before Roe v. Wade, when abortions were often horrific and dangerous.

“I was frustrated with the [pro-life students] trying to confuse protestors by misrepresenting facts instead of having an honest discussion about the issue,” Newman continued. “It made me fear what misinformation was being spread inside the court as well.” However, no matter how hard counsel for the State of Louisiana tried, there was one fact they could not distort: 320 miles.

That’s the distance a woman in Baton Rouge, Louisiana, would need to travel in order to see an abortion provider if the Fifth Circuit’s decision is upheld. Why 320 miles? Because the Louisiana law, which is identical to a Texas law the Supreme Court struck down four years ago (Whole Women’s Health), camouflages itself as a necessary protection to ensure women have quick access to hospitals should a complication arise during a standard medical procedure. It requires abortion providers to be within thirty miles of a hospital they are credentialed with, which for some women in Louisiana is 320 miles away from home.

Last Wednesday the Supreme Court was filled almost to capacity as oral arguments began with the issue of standing, asking whether abortion clinics should be allowed to bring claims on behalf of the woman they would treat. This is called “third-party” standing and is important because many women who would be impacted by this law would likely be unable to bring a lawsuit themselves. These laws notoriously have greater impact on low-income areas; Baton Rouge, the subject of contention with the proximity requirement, has an average income of $23,990. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan were clearly on the side of granting abortion clinics standing, and even Justice Stephen Breyer seemed unconvinced by the state’s counsel, noting the eight cases of precedence granting standing and asking whether the court should go back to 1789 and reexamine Marbury v. Madison in the process. Justice Samuel Alito, on the other hand, seemed poised to usurp precedence and third-party standing in general.

As to credentialing and proximity, Ginsburg, Sotomayor, and Kagan were in notable opposition, leading much of the questioning. Justice Brett Kavanaugh and Alito seemed steadfast on justifying the credentialing, though Kavanaugh struggled to get a word in over Ginsburg and Sotomayor. However, Breyer seemed a bit more hesitant. At the very least, he seemed unconvinced by the “implicit” requirement for a physician to have a certain number of patients before being credentialed, as conceded by the state’s own expert. Primarily, though, no one could justify forcing a woman to travel 320 miles.

Counsel for the state was unpersuasive in claiming a need for an abortion provider to be close to a hospital for “continuity of care.” Specifically, Hope Medical Group for Woman, an abortion clinic that would have to close under the Louisiana law, contradicted the state’s claim. As Kagan pointed out in her questioning, only four women out of the 70,000 treated at the Hope facility were transmitted to a hospital due to a complication. Ginsburg also pressed this fact and the fact that women seeking follow-up after a procedure would be traveling from home, not the clinic. Counsel’s only response was that the actual rates for complications are generally unknown. This is true, as the record indicated women don’t tend to follow-up with their abortion providers. However, throwing an ocean on a campfire tends to do more harm than good. The benefit claimed by the state was patently nonexistent in its argument or on the record.

Chief Justice John Roberts will likely be the deciding vote in June Medical Services LLC v. Russo. He focused on making decisions on a case-by-case issue, where each state is afforded some consideration based on their circumstances. A novel thought but only a few steps shy of granting the leeway states would need to regulate abortion rights to nonexistence. Nonetheless, his is a moderate perspective compared to the other conservative justices.

One thing is certain: Americans in favor of safe and legal abortion are the majority, and we will not concede women’s reproductive rights without a fight.