abortion protest outside supreme court.

Upholding Precedent While Rewriting It in June Medical Services v. Russo

By Mary Ziegler

Before the Supreme Court’s decision in June Medical Services v. Russo, many wondered if the Supreme Court’s new conservative majority would begin to do away with precedents, starting with the 2016 decision in Whole Woman’s Health v. Hellerstedt. But Chief Justice John Roberts voted with his liberal colleagues that Louisiana’s admitting privileges law could not “stand under our precedents.” And yet he felt curiously free to rewrite the very same precedents he claimed to respect.

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Reflections on the Transnational Significance of June Medical

By Fiona de Londras

By any ordinary standard of comparativism, one might suggest that the abortion jurisprudence of the United States is so particular to its own circumstances that it ought to be considered sui generis.

But U.S. Supreme Court abortion law decisions always attract international attention, not only because of the (perhaps peculiarly) combative nature of U.S. abortion law, but also because the United States is something of a bellwether for abortion law reform.

This is, in truth, rather undesirable. U.S. abortion law is shaped by the idiosyncrasies of at least three power struggles playing out in particular ways in the American politico-legal landscape: contestations between anti-abortion and pro-choice politics and activism, constitutionalist struggles between judicial and legislative decision-makers, and constitutional tensions between states and federal authority.

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Fairview Heights, IL—Jan 5, 2020; Sign on medical clinic announces Planned Parenthood branch is now open, the southern Illinois clinic was built to serve St Louis after Missouri restricted abortions.

Preventing Access to Abortion is Prima Facie an “Undue Burden”

By Louise P. King

As an obstetrician/gynecologist, lawyer, and bioethicist, when I read Supreme Court rulings on reproductive rights, I am struck by how little the Court understands the restrictive and burdensome nature of our medical system for women.

The latest decision on reproductive rights, June Medical Services LLC v Russo, does not bolster my confidence in the Court. The decision was narrowly won. While Chief Justice John Roberts’ concurrence gives deference to precedent, it and the dissent suggest that a slightly different statutory requirement — equally and unnecessarily restrictive of access to needed care — could, in the future, be upheld.

This is a problem given that the U.S. health care system is already rife with and primed for gender-based inequities.

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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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Globe.

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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