protest sign at supreme court

The Narrow Victory of June Medical Might Pave the Way for Future Abortion Restrictions

By David S. Cohen

June Medical v. Russo was a victory for Louisiana’s three independent abortion clinics and the thousands of people in the state they can now continue to serve. But, going forward, Chief Justice Roberts’ concurring opinion could pave the way for federal courts to bless a host of abortion restrictions that would make access to care more difficult.

To understand what might happen based on the Chief’s opinion, it’s instructive to look at Planned Parenthood v. Casey. In that case, the Court announced the undue burden test, a test that in theory could have had bite. Per the decision, “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

However, in Casey itself, the Court applied the standard and upheld almost all of the restrictions before it — a parental interference requirement, an abortion-only extreme informed consent process, and a 24-hour mandatory delay. The only provision the Court struck down under the undue burden test was the requirement that a married woman notify her husband before having an abortion.

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Questioning the Comparative Relevance of US Abortion Jurisprudence

By Payal Shah

In the U.S., June Medical Services L.L.C. v. Russo is a critical decision to stall regression on abortion rights. From a global perspective, however, June Medical, along with the Court’s contemporaneous decision upholding the U.S. government’s Anti-Prostitution Loyalty Oath (APLO) in Agency for International Development v. Alliance for Open Society International, reflect another truth—the growing idiosyncrasy, insufficiency, and impropriety of comparative reference to U.S. abortion jurisprudence.

U.S. abortion jurisprudence has been cited by courts across the world in recognizing reproductive rights. This is in part because the U.S. was among the first countries to state that a women’s right to decide whether to continue a pregnancy is a protected constitutional right.

However, in the almost 50 years since Roe, the U.S. constitutional framework on abortion has not evolved in a comprehensive manner; instead has been shaped reactively, in response to laws passed by anti-abortion legislatures. Yet, constitutional courts continue to “ritualistically” employ Roe as the “hallmark of progressive law.”

The June Medical and Alliance for Open Society decisions ultimately maintain the national status quo on abortion rights—including the possibility of reversal of Roe v. Wade— and also facilitate the silencing of sexual and reproductive health rights (SRHR) movements abroad. In doing so, these decisions call into question the contemporary comparative relevance of U.S. abortion jurisprudence.

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WASHINGTON, DC - MAY 21, 2019: A crowd of women hold signs supporting reproductive justice at the #StopTheBans rally in DC.

A Radical Reorientation for U.S. Abortion Rights

By Joanna Erdman

There is something inappropriate, even uncomfortable, about Chief Justice John G. Robert’s love letter to precedent in June Medical Services, LLC v. Russo.

On June 29, 2020, the U.S. Supreme Court held unconstitutional a Louisiana law that required doctors who perform abortions in the state to have admitting privileges at nearby hospitals. If the law went into effect, a single provider, or, at most, two, would remain in the state. The vote was 5 to 4. Roberts cast the fifth vote, but he did so in a separate opinion compelled by precedent.  The Louisiana law and its burdens on the right to abortion were nearly identical to those in Whole Woman’s Health, and therefore “Louisiana’s law cannot stand under our precedents” – even a precedent that he believes is wrongly decided.

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Washington, DC, USA -- March 4, 2020. Wide angle photo of a throng of protesters at an abortion rights rally in front of the Supreme Court.

June Medical v. Russo Reflects Ongoing Struggle with Black Women’s Constitutional Equality

By Michele Goodwin

The Supreme Court’s June Medical v. Russo case was more than just another cog in the wheel of the intensifying battle against the constitutional right to terminate a pregnancy.

Though, on its face, the case was about access to abortion, just beneath the surface, the law at issue represented a continuation of Louisiana’s historic resistance to sex and race equality. Read More

WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

The Harms of Abortion Restrictions During the COVID-19 Pandemic

By Beatrice Brown

Several states, including Texas, Ohio, and Alabama, have dangerously and incorrectly deemed abortions a non-essential or elective procedure during the COVID-19 pandemic. The stated reason for these orders is to conserve personal protective equipment (PPE), a scarce, important resource for protecting health care workers treating COVID-19 patients.

However, these policies restricting abortion are unlikely to conserve PPE, and more importantly, they mischaracterize the nature and importance of abortions.

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New TWIHL 182: Abortion Exceptionalism During COVID-19

By Nicolas Terry

I welcome three excellent guests this week. Our discussion centers around new abortion restrictions issued as part of state responses to COVID-19. For example, in Texas, Gov. Greg Abbott issued an executive order banning nonessential medical services. Subsequently, his attorney general interpreted that order as applying to all abortions. Planned Parenthood successfully applied for a temporary restraining order in the district court, only for the Fifth Circuit to lift the stay.

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Histogram chart depicts the number of states that have passed restrictions, bans or protections for abortion in the United States in 2018 and 2019, as well as how court cases may have impacted the implementation of those laws.

Increased Restrictions and Court Activity for Reproductive Rights in the US in 2019

The landscape of abortion law in the United States saw increases in targeted restrictions in 2019, but also some efforts to protect access by state governments and courts, according to new data published this week to LawAtlas.org.

The data capture abortion-focused statutes and regulations (or amendments to existing laws) in effect between December 1, 2018 and December 1, 2019, as well as court cases that may impact the implementation of these laws.

Our research team noticed a few trends:

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U.S. Supreme Court building

Health Law Cases in the Upcoming Supreme Court Term

By Alexa Richardson

The next Supreme Court term is shaping up to include a number of critical cases that will impact health law. From insurance, the Affordable Care Act, abortion access, and mental health, the decisions made this term could have significant impacts on public health moving forward. Here are some of the key health law cases upcoming this term to keep an eye on:

June Medical Services, LLC v. Gee

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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. Read More