As the U.S. Supreme Court heard the oral arguments in the Louisiana abortion case June Medical Services LLC v. Russo Wednesday, advocates and opponents gathered outside in opposing rallies. With the legitimacy of Roe v. Wade on the line, the 2020 election looming, and Justices Neil Gorsuch and Brett Kavanaugh weighing in on their first abortion-related case since joining the bench, tensions were running high.
The Louisiana law in question, Act 620, mirrors a similar law in Texas, requiring abortionists to have admitting privileges at a hospital within 30 miles of the abortion facility. The Supreme Court ruled the Texas law unconstitutional in the 2016 case Whole Women’s Health v. Hellerstedt, saying it placed an “undue burden” on women seeking an abortion, a practice the court determined was a constitutional right in the 1973 landmark Roe v. Wade decision.
Louisiana Abortion Law Differs from Texas Law
But the Louisiana law differs from the Texas law in practice, resulting in no substantial burden to women. For instance, Texas hospitals require doctors to admit a minimum number of patients each year in order to retain their admitting privileges, resulting in more abortion facility closures, but few Louisiana hospitals require such minimums. The Fifth Circuit Court of Appeals upheld Act 620, saying that since only one doctor at a single facility in Louisiana was unable to obtain admitting privileges, there is no evidence Act 620 would result in any closures. While the Texas law led to a 350 percent increase in women having to drive more than 150 miles to get abortions, driving distances did not increase as a result of the Louisiana law.
“One of the differences between June Medical and Hellerstedt is that the record out of Louisiana is full of instances where women suffered greatly because doctors did not have admitting privileges,” Denise Harle, legal counsel with Alliance Defending Freedom, told The Federalist in an interview. Harle continued:
There was a woman, for example, whose uterus was perforated, and she ended up sitting in the ER for three days hemorrhaging, and they ultimately had to do a hysterectomy, and she lost her ability to have children just because the abortion doctor didn’t have admitting privileges, so there was a huge communication gap between what had gone wrong and the abortion clinic and her ultimate treatment at the hospital. So that was just one example of several on the record, and then there’s other instances in the Louisiana record where women were treated more [improperly because of a lack of admitting privileges] and that was something that wasn’t as obvious in the Texas case.
The Louisiana law also highlights the issue of third-party standing, raising the question of whether it is lawful for abortion providers to sue on behalf of women and whether the interests of abortionists and women align. Evidence suggests their interests actually conflict. For instance, it was a law like Louisiana’s that closed the practice of traveling Indiana abortionist George Klopfer, whose unsafe practices endangered women, landing some in emergency rooms. Upon Klopfer’s death in September 2019, officers found the remains of more than 2,000 aborted babies inside his Illinois home.
“Women can speak for themselves,” said Harle. “It’s wrong for doctors who are profiting off of women to come in with this conflict of interest and pretend they speak for women when they’re really asking for an exemption that jeopardizes women’s health.”
Krista Corbello, a rally attendee who previously worked for Louisiana Right to Life after finding out her mother almost aborted her, compared health standards for abortionists to other medical care providers. “My dentist has to have a certain standard in his office, in his practice, so why doesn’t an abortion doctor have to meet that?” she asked. “The narrative should be the safety of women, and if they’re having unqualified medical doctors not meeting the standards to get admitting privileges, to me it’s just common sense that they would meet those standards.” Abortion advocates only talk about access, Corbello said, “And it’s like, are we preferring access over safety? … People should care about the safety of women. [Pro-choicers] are always considered the champion of women, but in this case, I would say not so, not so.”
Pro-Abortion Advocates Fear a Roe Reversal
Abortion advocates disagree, however, clinging tightly to feminism’s marriage of women’s rights and abortion.
“It’s scary to see what’s going on now that this right that we fought so hard to have is being chipped away at little by little,” Elizabeth Smith, a pro-abortion rally attendee, told The Federalist. “It’s got to be federal. Returning it to the states is ridiculous. If you don’t want to have an abortion, that’s it. Okay? This is a personal decision.”
“[Abortion] is an ultimate freedom that needs to be assured,” Smith’s friend Sally Bawcombe, a longtime abortion advocate, added. “It needs to be guaranteed.”
While the court hears June Medical, pro-abortion activists look ahead, fearing the possibility of future Roe v. Wade reversal, which would become more likely if June Medical results in a pro-life win.
“There needs to be federal [abortion] protections,” Kellsea Mclain told The Federalist, while also saying it may be time to consider a “state-by-state abortion access framework.” Mclain added, “I do worry that Roe isn’t going to be the law of the land much longer.”
Who Will Prevail in June Medical v. Russo?
Given the differences between the Texas and Louisiana laws and the now-conservative majority on the court, it’s possible the case will result in a pro-life victory. “It’s dangerous to predict what courts are going to do, especially what the United States Supreme Court will do,” Sen. John Kennedy, a Louisiana Republican, told The Federalist. “I know what I want them to do. I hope they will uphold Louisiana statute. But all we can do in the U.S. Senate is try to put good, smart men and women on the bench who understand the role of a federal judge, and then you’ve got to trust them. And all of us, those who agree and those who disagree, should trust the United States Supreme Court.”
Both pro-abortion and anti-abortion activists are anticipating the November presidential election, aware that the outcome could result in a reshaping of the Supreme Court and eventually Roe. Two liberal justices are in their 80s, Ruth Bader Ginsburg and Stephen Breyer, both Bill Clinton appointees, raising the possibility either or both will retire within the next presidential term.
“I think that this election is really, really crucial. I think that right now Trump is our only candidate that is pro-life,” said Carley Kolter, a Liberty University freshman who camped out in front of the Supreme Court overnight in the D.C. rain and wind for Wednesday’s arguments. “Any other candidate doesn’t really have any values that are pro-life. Our best bet is Trump, honestly.”
Considering whether any 2020 Democrats would uphold the sanctity of unborn life, Alex Seghers from Louisiana Right to Life told The Federalist, “There’s not a lot of hope out there, but there’s always opportunity for someone to realize what abortion truly is and that they can take a human rights stance against it regardless of party.”
If the Supreme Court strikes down Act 620, however, further legitimizing abortion and Roe, pro-lifers are determined to keep fighting.
“Fall down seven times, stand up eight. We keep fighting,” Kennedy said. “Defeat is not final unless you give up. We won’t give up in Louisiana. I believe in life.”