2020 has been a notable year for reproductive rights. The Supreme Court decided June Medical Services v. Russo, its first abortion-related case following the changeover from Justices Scalia and Kennedy to Gorsuch and Kavanaugh. The COVID-19 pandemic has impacted access to abortion, sexual health, and reproductive health services. In light of recent landmark events in the field of reproductive rights, the Bill of Health blog presents expert perspectives on these developments, both in the U.S. and internationally.
As observed in the first two decades of the 21st century, abortion exceptionalism has carried through into 2020, remaining one of the most politicized issues globally.
In Northern Ireland (NI), this exceptionalism is evident in landmark developments to improve access, as well as in concerns over obstructions to services. Read More
Drawing lessons from June Medical Services provides the African human rights system with an opportunity not to affirm what it has in common with the U.S., but rather to uphold its own approach and articulate the jurisprudence that sets it apart.
The U.S. regulates abortion primarily through its Supreme Court using jurisprudence which frames abortion as a right implied in the constitutional right to privacy.
On the other side of the comparison, the African human rights system frames abortion as a human right that transcends national borders in the African region. By “human rights system,” I am referring to the regional system founded under the African Charter on Human and Peoples’ Rights (the African Charter) and its supplementary treaties, especially the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol).
In June Medical Services v. Russo, the Supreme Court held that a Louisiana law requiring that physicians obtain admitting privileges at a nearby hospital was unconstitutional. Had the law taken effect, all but one provider would have lost the ability to deliver abortion care in the state. Despite the result, a number of commentators have expressed concern about the future of abortion rights. The source of their concerns is the Chief Justice’s application of the undue burden test—the standard for judging the constitutionality of an abortion restriction—established in Planned Parenthood v. Casey.
Justice Breyer, who wrote the judgment of the Court in June Medical Services, balanced the benefits and burdens conferred by the law, finding that the statute offered no benefit for people’s health and created significant burdens on the delivery of abortion. The admitting-privileges requirement does not protect patients’ safety because complications from abortion are rare and thus rarely will a patient need admission to a hospital. Moreover, admitting privileges, which the district court found each provider had pursued in good faith, do not determine a physician’s competency or credentials.
Although Chief Justice Roberts’s concurrence provided the fifth vote to strike down the law, Roberts wrote separately to emphasize that whether the Louisiana law had any identifiable benefit for patients was immaterial. The Court need only address what burdens the law imposed—if a law establishes “significant obstacles” to abortion. Roberts’s concurrence clearly departs from Breyer’s approach of weighing the law’s benefits against its burdens. Breyer’s formulation would render a law unconstitutional if it had no health benefits but erected a minimal obstacle to abortion care. Roberts’s approach would not: a law only fails the undue burden test—no matter how unsuccessful legislation is in achieving its purported goals—if the restriction renders abortion access substantially more difficult.
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.
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.
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.
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.
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.
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.
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