This post is by Priscilla Smith, a Clinical Lecturer in Law, Associate Research Scholar in Law, and Senior Fellow, in the Program for the Study of Reproductive Justice, at the Information Society Project. It is a part of our June Medical Symposium.
All most of us can think about as we anticipate a ruling in June Medical Services v. Russo is how much of a hit the right to abortion will take from the Roberts Court. Will the Court erase the right completely or whittle it away so that it exists in name only? Pundits agree that the latter is more likely, at least in part because this method could obscure the devastation before the election. And don’t get me started on third-party standing, especially because it has been covered fully in other posts published here.
Of course, the potential change in the standard applicable to constitutional challenges to abortion restrictions is everyone’s focus here. But June Medical also presents a particularly stark demonstration of a contradiction at the heart of many “pro-life” or “fetal protective” justifications for abortion restrictions. Reva Siegel explores this contradiction in her article ProChoiceLife: Asking Who Protects Life and How—Why it Matters in Law and Politics, 93 Ind. L.J.207 (2018). I apply these concepts to Louisiana and the law at issue here.
The Act challenged in June Medical burdens access to abortion for no valid health reason and in circumstances that show little commitment to protecting life or women’s health during pregnancy and childbirth. It is more than obvious that the law here cannot be health-justified. I leave (mostly) to others to provide the extensive data establishing that an admitting privileges requirement for abortion providers fails to benefit women’s health, as the Court held barely four years ago in Whole Woman’s Health v. Hellerstedt. I can’t help but point out that the current U.S. Department of Health and Human Services and the National Academies of Sciences Engineering & Medicine have acknowledged that admitting privileges are not necessary and create burdens on patient access. And forgive me for also pointing out that if the State truly believed that obtaining hospital admitting privileges would benefit women’s health, it would not rely on a convoluted and burdensome process that makes it extremely difficult, if not impossible, for abortion providers to obtain them. As the district court wrote, the process for obtaining privileges “reads like a chapter in Franz Kafka’s The Trial.”
So what of a fetal-protective justification? As a legal matter,the State waived any claim that the law served a fetal-protective interest. The State abandoned the claim both at trial and on appeal, admitting that such a interest would be “illicit” and “run afoul of Casey” in this case. That should be the end of it. As a political matter though, Louisiana’s Governor and other Executive Branch officials touted the law as building on the State’s efforts to “make Louisiana the most pro-life state in the nation.” Not to be outdone, the Fifth Circuit panel suggested obliquely that the Act might have been justified by an interest in potential life. Although the Court of Appeals left these breadcrumbs for the Supreme Court, the only evidence the Fifth Circuit panel gave to support Louisiana’s pro-life credentials was the State’s longstanding opposition to abortion, as if opposition to abortion is always, and solely, grounded in a pro-life impulse. Is it?
When we contrast Louisiana’s policy choices with those of comparator states nationwide, its claim to be a pro-life state falls smack on its face. Louisiana’s policy choices express little commitment to the lives of women and children, and especially to the families of low-income women and women of color. Compared with other similar states, Louisiana has done very little to address the unsafe conditions of pregnancy born out in its dismal rates of maternal and infant deaths. Let me demonstrate. (Sources of the data cited below can be found here).
Louisiana is in the throes of a horrific maternal and infant mortality crisis. From the period of 2012 to 2016, there were approximately 58.1 maternal deaths per 100,000 births in Louisiana, the highest maternal death rate of the forty-seven states with available data and almost six times the rate in the United Kingdom. Louisiana’s maternal mortality rate is on par with that of countries with current or recent military conflicts, such as Syria (54.1), Iraq (58.6), and Kyrgyzstan (47.8).
For women of color, the situation is even more dire. Black women in Louisiana are four times more likely to die from pregnancy-related causes than white women. Across all racial groups in Louisiana, 45% of all pregnancy-related deaths were deemed preventable—with the state later finding lack of timely access to care to be one of the most common contributing factors. And what about the babies? According to the Centers for Disease Control and Prevention (“CDC”), Louisiana ranks 49th in preterm births and low birth weight, and 41st in infant mortality among states nationwide.
Despite this health crisis, Louisiana fails to support wanted pregnancies:
Louisiana has also declined to reduce abortions and improve women’s health by reducing unintended pregnancies:
Instead of adopting these policies to assist women who want to carry to term or to assist those who would like to avoid pregnancy altogether, the Legislature obstructs abortion access, limits women’s health care options, and neglects families’ health care needs.
Why does this matter in the law?
As Reva Siegel points out, Louisiana’s contradictory policy choices—obstruction of abortion on the one hand and neglect of women who want to carry to term on the other—show that expressing opposition to abortion through laws burdening and obstructing it, as the Act does, does not translate into protecting life. Instead, the law—like many before it restricting access to contraception and abortion—reflects a hostility to women who decide against motherhood. This hostility is grounded in the premise that a woman’s natural role is to be a mother; that motherhood takes precedence over a woman’s participation in the workforce, her health, and even her life; and that a woman’s interests are less important than the interest of a fertilized egg, embryo, or fetus. It reflects and entrenches unfounded stereotypes about women.
The stereotyping has a more sinister twist in this case. Louisiana pushes women to remain pregnant under frightful conditions, with the second-highest risk of prenatal and neonatal deaths in the country. This Catch-22 burdens low-income women, especially low-income women of color, the most. The State’s failure to act to support women who want to carry to term reflects a devaluing of these women and their families, exacerbates inequality, and further inhibits these women’s ability to make significant progress towards equal citizenship.
But it has been the law of the land for almost fifty years that state policies that entrench stereotypes of what women should be are illegal, as Neil S. Siegel & Reva B. Siegel explain in Pregnancy and Sex Role Stereotyping: From Struck to Carhart, 70 Ohio St. L.J. 1095 (2009). Since the 1970s, Supreme Court cases like Orr v. Orr, Weinberger v. Wiesenfeld, and Califano v. Goldfarb recognize that government policies that enforce stereotypes about women violate the equal protection clause as much as laws that discriminate on their face or with invidious purpose.
Neither can sex stereotypes justify laws that restrict reproductive choice. Drawing on equal protection doctrine, the Court in Planned Parenthood v.Casey, 505 US 833 (1992), recognized the relationship between regulation of reproduction and sex inequality, explaining that laws restricting abortion that are grounded in and further entrench unfounded stereotypes about women are unconstitutional. 505 U.S. at 856 (“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” and striking requirement giving husbands control over their wives choices as an unconstitutional undue burden). And Chief Justice Rehnquist relied on similar principles to hold in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), that laws using biological differences as an excuse to impose sex-based stereotypes contravene the equal protection guarantee. Id. at 724-25, 731, 736 (explaining that regulations of pregnancy that enforce sex-role assumptions about women’s role as mothers are a paradigmatic example of such unlawful sex-stereotyping). See also United States v. Virginia, 518 U.S. 515, 533 & 542 n.12 (1996) (Physical differences between men and women “may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women”).
Thus, Act 620, a targeted restriction on abortion with no valid health protective or fetal protective justification is not just unconstitutional because of the burden it places on access to abortion with no corresponding benefit. The Act is also unconstitutional because the burdens of inequality it imposes on women are “undue.” See Casey, 505 U.S. at 856.