//  9/24/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. In February 2019, split five to four, the Supreme Court blocked this law from going into effect. That order suggests the Court is likely to grant review. This symposium addresses both the merits of the case and its broader context.

Michele Goodwin | Director, Center for Biotechnology & Global Health Policy | University of California, Irvine School of Law

In 2013, after heated debate and an ambitious, however unsuccessful filibuster, the Texas Legislature enacted House Bill 2 (H.B. 2).  The law contained two provisions at issue in the 2016 United States Supreme Court case, Whole Woman’s Health v. Hellerstedt: mandating doctors who perform abortions to obtain hospital admitting privileges and requiring abortion clinics to meet Ambulatory Surgical Center (ASC) Standards. The legislation represented another tool in the antiabortion arsenal built and primarily cultivated by male lawmakers. Ironically, Texas lawmakers claimed H.B. 2 and similar laws protected women, preserved their health, and enhanced patient safety.  Governor Rick Perry signed the legislation, heralding it as part of the “culture of Texas,” that would make abortion “a thing of the past,” revealing that the true nature of the Texas law was to end abortion access in that state. 

The Supreme Court struck down both provisions in 2016, because they imposed undue burdens on women’s right to seek abortion and thus violate the Constitution.   The Court found “there was no significant health-related problem that the [admitting privileges] law helped to cure.” In fact, when asked at oral argument “whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment,” Texas admitted there was not one case.  This was a consistent finding in other states. 

In short, these provisions conferred no medical benefits sufficient to justify the burdens imposed on women in Texas.  The Court found that the admitting privileges requirement led to the closures of “half of Texas’ [abortion] clinics…” In other words, protecting women’s health was a duplicitous proxy or pretext for denying women the constitutional right to terminate a pregnancy—the same is true in the case of virtually identical legislation enacted recently in Louisiana.

In what could be seen as defiance of the Court and indifference to Whole Woman’s Health, the Louisiana’s legislature did not repeal the “Unsafe Abortion Protection Act” or Act 620—its version of the Texas law, which requires “a physician performing or inducing an abortion” to “[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.”  To place in context the Louisiana legislature’s brazen disregard of Whole Woman’s Health, imagine that state enacted a separate but equal public school segregation law based on race, in the wake of Brown v. Board of Education striking down such legislation.  

Even more curious, imagine if the court of appeals upheld it.

One need not study this hypothetical too long nor relitigate the shameful horrors of Jim Crow in Louisiana and throughout the American south to recognize the harms it would inflict on Black students in Louisiana if such a law were in effect.  The vestiges and badges of slavery would be apparent.  Indeed, any claims by Louisiana that its version of separate but equal was so factually different such that Brown does not apply would be farcical.   The distinctions are irrelevant when the very principle violates the constitution. Brown did not apply only in Topeka, Kansas.

In the present case, not surprisingly, both doctors and clinics challenged Louisiana’s law, securing a permanent injunction at the district court level, which the Fifth Circuit vacated in June Medical Services v. Gee.  Unconvinced that the facts undergirding Whole Woman’s Health applied in Louisiana, the Fifth Circuit lifted the injunction.  In doing so, the court brushed aside that more than half the clinics in Texas closed in light of the Texas admitting privileges law going into effect, because doctors could not obtain such privileges; the closure of clinics meant that in some cases women traveled hundreds of miles in order to terminate a pregnancy or simply lost access altogether; and admitting privileges bore no relation to physician competency or protecting women’s health, because abortions are safe procedures that nearly never require any form of hospitalization. 

The Court took specific note of Dr. Lynn who practiced at the McAllen clinic in Texas.  He delivered 15,000 babies during 38 years in practice and “was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic.”  These refusals were “not based on clinical competence considerations.”  Rather, hospitals typically allow admitting privileges only if the doctors will generate a sustained clientele to the hospital—with abortions being as safe as a penicillin shot, on average less than 1% of doctors’ patients would be admitted to the hospitals. 

As empirical research shows, a woman is 14 times more likely to die in childbirth than by having an abortion.  Essentially, doctors would ultimately lose the privileges that they were forced to obtain, thereby coercively forcing them out of their practices and their clinics to close. Sadly, given that “women in Louisiana die more often from pregnancy than in other states,” such cruel laws can amount to a death sentence.  The maternal mortality rate in Louisiana is twice the national average.  

The Fifth Circuit conjectured that the if the Louisiana law goes into effect, it will not result in the closure of abortion clinics, that driving distances to reach clinics will not increase,  and “the cessation of one doctor’s practice will affect, at most only 30% of women, and even then not substantially.” Imagine the court of appeals claiming that a school segregation law affecting only 30% of Black students did not contravene Brown nor interfere with the constitutional rights of the students involved.  Placing the ruling in the context of race exposes the glaring flaws in the Fifth Circuit’s analysis as well as its resistance to abortion rights that is not explained by Supreme Court precedent, the factual record, or regard for the health and safety of the women in Louisiana.

 The Supreme Court, in a 5-4 decision voted to stay the Fifth Circuit’s decision, which allows the district court’s injunction to remain in effect until the Court decides whether to grant certiorari this fall.  Tellingly, Justice Kavanaugh dissented in the ruling, giving strong indication of not only his vote should the Court grant certiorari, but also his jurisprudence on abortion rights in cases to come.

What June Medical Services teaches is the power of the antiabortion playbook to take root in legislatures across the country, causing the repeat play of legislation already determined unconstitutional by the Supreme Court (Minnesota legislators proposed an ambulatory surgical standards law, which I testified against—also after Whole Woman’s Health).   The goal of the playbook is to hobble abortion access and one powerful means of doing so is to surreptitiously drive doctors out of their practices, thereby forcing clinics to close, leaving women with virtually no options for safe termination of unintended, unwanted, or unsafe pregnancies. 

This too is not that far different than the segregationist playbook.  During Jim Crow, sympathetic white business owners were threatened with physical and financial violence for providing Blacks competitive contracts and wages or renting them housing.  This was a powerful disincentive for the rare, white business owners interested in contracting with Blacks. In Louisiana, the legislature went so far as to threaten the closures of “racially mixed schools” four years after Brown, ultimately to keep Blacks in their place: disenfranchised and second class citizens. 

What is clear in June Medical as with the other antiabortion measures making their way through the courts is that these targeted regulations of abortion providers (TRAP laws) have nothing to do with protecting women or their health. Instead they seek preserve the old Jane Crow way of being, which denied women equal opportunity, citizenship, and independence.

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