On Wednesday the Supreme Court heard arguments in the first abortion-related case since the reconstitution of the court by way of President Donald Trump’s appointments of conservative Justices Neil Gorsuch and Brett Kavanaugh.
The case, June Medical Services v. Russo, is a challenge to a Louisiana law that requires abortion providers to have admitting privileges at a hospital within 30 miles of their place of practice. The law, if allowed to go into effect, would add to the already draconian barriers — deceptive counseling requirements, method bans, mandatory delay periods, targeted restrictions — that have reduced Louisiana’s providers to only three. Under this law, only one provider would meet the test.
The state of Louisiana argues that these restrictions and the new admitting privilege requirements are intended to keep women safe. The petitioners claim that this law and the other restrictions are intended to smother legal reproductive rights under a blanket of medically unnecessary bureaucratic nonsense.
The Louisiana law is nearly identical to a Texas law that was overturned in the Whole Woman’s Health v. Hellerstedt case in 2016. The court ruled in a 5-3 decision that the Texas law created an “undue burden” for women seeking a legal abortion. Since Roe v. Wade, the phrase “undue burden” has been the guidepost in determining the constitutionality of a barrage of efforts to restrict abortion rights. Many observers wonder, with good reason, why the court would consider a new case when the precedent seems so clearly established in the Whole Woman’s Health ruling. It seems the “undue burden” created by Louisiana’s law is nearly identical.
In the Whole Woman’s Health case, Justice Ruth Bader Ginsburg snookered the Texans trying to support the law by exposing the farce that they wished to “protect” women by imposing these severe restrictions. When Ginsburg pointed out that a woman in western Texas would have to travel hundreds of miles for an abortion, thus creating an undue burden, the lawyer defending the law said, “No, that’s not true.” He claimed that there is no burden because the west Texas woman could slip right over the border to a nearby clinic in New Mexico, thus experiencing no restriction on her constitutional right to the procedure.
Ginsburg noted with her dry, sharp wit that New Mexico had no such draconian requirements for clinics, nor did it require admitting privileges. She then humiliated her opponent by deftly pointing out that the Texas law was apparently not about “protecting” women, since the state seemed quite happy to send them to a place where such protections were lacking. Women are only supposed to be safe in Texas.
The Louisiana law, like the Texas law, is a sham, requiring providers to meet standards that have no effect on women’s health as proven by numerous studies presented in the Texas case. The admitting privilege is absurd for two reasons: First, complications requiring hospitalization are quite rare. By contrast, dangerous complications are 20 times more frequent in cosmetic surgery centers. Second, the rare woman in acute medical crisis will be admitted whether or not the provider has admitting privileges.
The conservative justices took this case for one reason and one reason only. They are motivated by their religious beliefs to be complicit in the assault on abortion rights. It has nothing to do with women’s health and well-being. In fact, as also proven in numerous studies, these restrictions make life much more dangerous for women. But anti-abortion conservatives don’t care about women.
In response to a New York Times article about the case, a seemingly reasonable and intelligent commenter wrote, “We hope that the Supreme Court votes in favor of the pro-life position.” Therein is the real issue: “The pro-life position.”
Unlike some social or political issues, abortion is ethically complex and I understand, while not agreeing with, an anti-abortion stance. It is not irrational, whether based on religion or another moral standard. But, as is trite but true, if one is against abortion on moral grounds, then don’t have one.
The Supreme Court’s role is to assess the constitutionality of statutes, not to apply a religious test based on the justices’ own beliefs or biases. As the commenter hoped, there is a dangerous possibility that the court will take “the pro-life position.” The justices are not supposed to be “pro-choice” or “pro-life.” They take an oath to be pro-Constitution.
The conservative justices certainly know that the law is intended to make legal abortions almost impossible for women, particularly poor women. If they uphold this religiously motivated charade, rather than following the law, it is a sign of moral bankruptcy and an offense to their constitutional duty.
Steve Nelson lives in Boulder, Colo., and Sharon. He can be reached at stevehutnelson@gmail.com.