Black and white photograph of the front of the Supreme Court. Pro-abortion protestors stand holding signs, one of which reads "I stand with Whole Woman's Health"

Challenging the Contours of the “Undue Burden” Standard in June Medical Services v. Gee: A Slippery Slope?

By Beatrice Brown

On October 4, the Supreme Court announced that it would hear June Medical Services v. Gee, in which a 2014 Louisiana law that requires abortion providers to have admitting privileges at a nearby hospital will be examined. The case is nearly identical to Whole Woman’s Health v. Hellerstedt, in which the Supreme Court held that a Texas law with a similar requirement for admitting privileges was unconstitutional according to the “undue burden” standard asserted in the landmark 1992 case Planned Parenthood v. Casey. According to the 5-3 ruling, such requirements for admitting privileges posed an undue burden on a woman’s constitutional right to abortion without also providing a significant health benefit to the woman.

As noted by many experts, the two cases are remarkably similar, with the key difference being the composition of the Supreme Court. In 2016, Justice Anthony Kennedy joined the four liberal judges in the majority opinion, whereas now, Justice Brett Kavanaugh will likely join the four other conservative justices. The uncertain factor, however, is that in February, Chief Justice John Roberts voted with the majority opinion to delay the Louisiana law from going into effect in light of ongoing litigation, despite voting against the majority in Whole Woman’s Health v. Hellerstedt about the constitutionality of this similar Texas law. As such, it is unclear if the Court will hold that the Louisiana law is constitutional – given that Justice Kavanaugh will likely vote for its constitutionality, the direction of the ruling hinges on whether Justice Roberts votes as he did in Whole Woman’s Health v. Hellerstedt or as he did in February.

I argue that the Louisiana law clearly imposes an undue burden on a woman’s right to abortion, as was upheld by the Court in its 2016 ruling. Admitting privileges do not provide a significant benefit for women seeking an abortion. Furthermore, as noted in Reuters, the law would likely result in two of only three clinics in Louisiana shutting their doors, meaning one clinic with one doctor would remain open to provide approximately 10,000 abortions per year. Having one clinic and physician provide such a high number of abortions is certainly not feasible – and it would certainly impose an undue burden on women seeking an abortion.

Beyond the undue burden that the law poses, there is also a question of undoing current precedent and establishing a new one in its place. Namely, deeming the Louisiana law constitutional would essentially overturn the ruling in Whole Woman’s Health v. Hellerstedt. Such an overturning would establish the precedent that laws that require admitting privileges do not pose an undue burden, paving the path for more and more legislation that would seek to challenge the contours of what constitutes an undue burden.

One can only wonder what new laws would be passed as a result of this Louisiana law being deemed constitutional. Would heartbeat bills, such as the one proposed in Georgia, be deemed constitutional? Maybe not, but it certainly emboldens anti-abortion advocates to propose more bills that limit a woman’s right to an abortion, and it would certainly at the very least lead to laws in other conservative states that are similar to the one in question in Louisiana. This would be a slippery slope – the Court could restrict the right to abortion so much that they would essentially be overturning Roe v. Wade without actually having to do so. And if this right becomes so restricted in certain states, would we start seeing the rise of “abortion tourism,” akin to the death tourism that we have seen of people seeking to hasten their death? The implications of such tourism would be dire for women, especially for those who are low-income.

Time will tell whether the Court deems this Louisiana law to be constitutional and, as such, begins a whole slew of laws restricting a woman’s constitutional right to abortion – and it is not hard to imagine the dire effects that this would have on the health of women across America.

Beatrice Brown

Beatrice (Bea) Brown is a Research Assistant for the Program On Regulation, Therapeutics, and Law (PORTAL) within the Division of Pharmacoepidemiology and Pharmacoeconomics at Brigham and Women's Hospital. She received her Master of Bioethics (MBE) from Harvard Medical School in 2020 and her BA in Ethics, Politics, & Economics from Yale University in 2019. During the 2019-2020 academic year, Bea was a Petrie-Flom Student Fellow and wrote a research paper proposing a new argument for a constitutional right to physician-assisted death by redefining what it means to heal.

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