//  3/2/20  //  Commentary

This post is by Gretchen Borchelt, Vice President for Reproductive Rights and Health at the National Women’s Law Center. It is part of our symposium on June Medical.

This week, the U.S. Supreme Court has an opportunity – and obligation – to affirm women’s equality in June Medical Services v. Russo.  

The Supreme Court must strike down the anti-abortion Louisiana law at issue and in so doing reaffirm that women’s equality is fundamentally connected to the right to abortion. As my organization – the National Women’s Law Center – and 72 additional organizations explain in our amicus brief to the Court, doing so would be consistent with – and is required by – the Court’s current jurisprudence.  And, at this moment, in the midst of a new women’s movement, it is critical for the Court to demonstrate its alignment with public understanding of threats to abortion as instruments of power and control, and reject these attempts to reverse women’s progress. 

In this case, the Court is considering a Louisiana law that requires a physician providing abortions to hold “active admitting privileges” at a local hospital. The district court found – in a thorough 116-page decision – that the law provided no benefit to women’s health but imposes serious burdens on the right to abortion. The district court found that the Louisiana law would close two of the three clinics in the state; although the doctors tried in good faith for well over a year to obtain privileges, they were unsuccessful. The clinics closing would result in increased travel times and distances, significantly longer wait times, and increased costs, including costs of travel, lodging, childcare, and more expensive procedures for individuals seeking abortion. The judge remarked that the Louisiana law would “result in a substantial number of Louisiana women being denied access to abortion in this state.” Following the guidance set out in the Supreme Court’s 2016 decision Whole Woman’s Health v. Hellerstedt – which invalidated an identical Texas law – the district court struck down the Louisiana law. The Fifth Circuit then erroneously reversed that decision, and it was appealed to the Supreme Court.  

When the Supreme Court takes up June Medical Services, it will be considering whether the Louisiana law violates the right to liberty protected by the Fourteenth Amendment’s Due Process Clause. The Court is not considering a claim under the Equal Protection Clause, which is the Fourteenth Amendment’s guarantee of equal treatment. But the Court must still consider how the Louisiana law affects women’s equality in determining whether it violates their right to liberty. That’s because for decades, the Court has relied on equal protection values when determining the scope of the right to liberty. 

The Supreme Court’s precedents stress the deep linkage between the Due Process Clause and the Equal Protection Clause. One need only consider its recent cases striking down laws that target LGBTQ individuals.  In Lawrence v. Texas (2003)when the Supreme Court invalidated laws that criminalized same-sex intimate activity, itheld that “[e]quality of treatment and the due process right to . . . liberty are linked in important respects.”  And when the Court struck down a ban on same-sex marriage in Obergefell v. Hodges (2015), it explained that “The Due Process Clause and the Equal Protection Clause are connected in a profound way. . . . Rights implicit in liberty and rights secured by equal protection . . . may be instructive as to the meaning and reach of the other. . . . This interrelation of the two principles furthers our understanding of what freedom is and must become.”

 Similarly – for almost 80 years – the Court has linked individuals’ liberty to make reproductive decisions and their equality. In Skinner v. Oklahoma (1942), the Court relied upon the Equal Protection Clause to invalidate a law that selectively mandated sterilization of certain felons.  In Griswold v. Connecticut (1965), the Court recognized that a married couple has a fundamental right to use contraception, and just seven years later in Eisenstadt v. Baird, the Court expanded that right to individuals, under the Equal Protection Clause. 

This recognition of the intersection of liberty and equality has also been critical to the Court’s analysis of abortion restrictions.  In 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court recognized that the right to abortion is particularly grounded in principles of equality.  The Court explained that the right to abortion not only safeguards a woman’s ability to make decisions for herself, but also is central to her status in society. As the Court made clear: “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.”

 The Supreme Court in June Medical Services must consider equality principles when analyzing the Louisiana law’s effect on liberty.  The Court must evaluate the burdens the Louisiana law imposes on pregnant people’s personal liberty, as well as their ability to participate in society on equal terms. And as the Court recognized in Whole Woman’s Health just four years ago, it’s critically important to consider those who would actually be impacted by the law, particularly those who are “poor, rural, or disadvantaged.”   

Understanding the lived experiences of those who will be affected by the Louisiana law – and the threats to their equality, economic security, and wellbeing – will lead to a clearer understanding of how the law violates their right to liberty. 

People living in poverty

Women seeking abortion care disproportionately live in poverty. For example, at the Hope Clinic in Shreveport, Louisiana, up to 90% of patients live below the federal poverty level.  For poor women—who often depend on public transportation—long-distance travel can be a grave burden. Transportation is not the only cost; many will also need to cover hotel expenses and childcare costs, since 73% of women who sought abortions in Louisiana were mothers and 43% had two or more children. And because other Louisiana laws require patients to receive state-mandated counseling and an ultrasound at least 24 hours before an abortion, patients must make two trips to the clinic. Those struggling to make ends meet may not be able to afford to do this once, much less twice. If they are able to manage, it may push them deeper into poverty.  

Low-wage workers

In Louisiana two-thirds of low-wage workers are women. Low-wage workers frequently receive their work schedules just one week or less in advance, and their schedules often change at the last minute. Low wage jobs in particular lack paid vacation or sick leave, and Louisiana does not require employers to provide these benefits. So if a low-wage worker who has decided to have an abortion is unable to align her work schedule with an over-burdened clinic’s schedule, she may lose income and even her job in order to obtain an abortion. 

People of color

The burdens imposed by the law will be borne in particular by women of color. In 2018, approximately 70% of women in Louisiana who obtained an abortion were women of color.  86% of women living in poverty in Louisiana are women of color. And women of color are also more likely to work in low-wage jobs

It is worth noting that the Louisiana law will have a devastating impact on others too. Our brief also includes discussion of the harm to transgender men and non-binary individuals, women subjected to intimate partner violence, and people with high-risk pregnancies. 

For these individuals, the logistical, financial, and geographic barriers to abortion caused by the Louisiana law will be extremely harmful. The costs could put a strain on their economic security; one study found that one-third of women getting an abortion had to delay or forgo paying bills, food, and even rent.  The barriers caused by the Louisiana law could also push pregnant people to seek abortion care later in pregnancy. Many women, particularly low-income women, already have abortions later than they would prefer because they need time to raise money for the procedure and related travel.

And for many pregnant people, those barriers will be insurmountable. If the Court were to uphold the law, it would effectively force pregnant Louisianans to bear children.  

Being forced to bear children will have a substantial impact on their economic security, equality, and ability to pursue their own life’s path.  Louisianans forced to carry a pregnancy to term can expect:

This substantial evidence of harm requires the Court to strike down the Louisiana law and reaffirm equality as a key factor in doing so.

That outcome is also critically important because the Louisiana law reinforces antiquated stereotypes about women and their “proper role” in society. Allowing the Louisiana law to stand would perpetuate a particular historical and cultural vision of women’s role in society that the Court has long ago repudiated. The Court has said that previous limitations on women’s ability to participate in public life – such as keeping women from practicing law – presumed that “the paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.” The Court has made clear that “[t]his ‘ancient principle’ [of ‘male dominance’] no longer guides the Court’s jurisprudence.”    

Research shows that views on abortion are highly correlated with beliefs about women. Those who want abortion to be illegal are more comfortable with women in traditional roles in society, more likely to agree that men generally make better political leaders than women, and are more likely not to trust women to make their own decisions about having an abortion.  As the Court saidwhen it struck down a requirement that women notify their spouse before obtaining an abortion, these views are “no longer consistent with our understanding of the family, the individual, or the Constitution.”  To the contrary, the Court recognized that “[a]n entire generation has come of age free to assume Roe [v. Wade]’s concept of liberty in defining the capacity of women to act in society.” 

June Medical Servicescomes to the Supreme Court at a time when there is a broader movement for gender justice in this country. Women are marching in the streets, demanding full equality.  It’s the 100th Anniversary of the 19th Amendment, when some women first gained the right to vote.  Virginia just became the 38th – and final – state to ratify the Equal Rights Amendment.  State and local legislators are moving forward with legislation to protect and expand people’s right to make their own reproductive decisions. This broader movement will transform the relationship between gender and power in this country. It’s not surprising then, that some politicians and even judges feel threatened and are using their power to stop this progress. For the Supreme Court to allow the Louisiana law to stand would not only obliterate its past precedent, but signal its willful disregard of broader societal and cultural forces that must shape our understanding of the Constitution.


Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Civil Rights Corps

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

June Medical As The New Casey

6/29/20  //  Quick Reactions

As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

Leah Litman

Michigan Law School