This case summary is written by Shreya Tandon, a law student from Vivekananda Institute of Professional Studies (VIPS), IP University. This is a detailed article that unties the strings of abortion law in the state of Louisiana.

Introduction

On 29th June 2020, the Supreme court knocked out regressive Louisiana’s law on abortion that would have minimized the abortion clinics to one. It’s marked as an unconventional win for the Human Rights abortion activists and a bitter failure for the critics who counted on President Trump’s appointments- Justices Neil M. Gorsuch and Brett M. Kavanaugh with the hopes of sustaining abortion rights, eventually, to overrule Roe v. Wade (1973).

The law behind the Louisiana case of June Medical Services v. Russo serves as a judicial deja vu to a homogeneous law in Texas which was held to be unconstitutional and unjust by the U.S. Supreme Court in the year 2016. The question revolves around the requirement of doctors who perform abortions to be given admitting privileges near the hospital or not. The supporters argued that law should be fair and should focus on ensuring the health of a woman whereas the opponents of the law state, true aim is to restrict abortion access. They say that one doctor is enough to perform the process of abortions in Louisiana.

The decision was taken by a 5:4 majority bench. The crucial fifth deciding vote was in hands of Chief Justice John G. Roberts Jr. Rather than supporting Trump’s nominee’s viewpoint, He chose to join the liberal wing with the other judges. According to his interpretation, the Texas law is unconstitutional and the decision of the Appellate court’s verdict should be set aside and the US court cannot discriminate against the law by different jurisdictions. He also stated that it fails the purpose of Doctrine of Stare Decisis which is based upon the rule of treating the alike cases in a similar manner. Robert wrote in the judgment that the law in both the states of Texas and Louisana is equally analogous and severe which restricts women to access abortion. 

Background

Forty- five years ago on 22nd January 1973, the Supreme Court of the U.S. declared its 7:2 majority decision in the case of Roe v Wade. It was pointed out that, the law prohibiting abortion, in other words, termination of pregnancy is unconstitutional as it violates the fundamental Right of Privacy of a woman. After the ruling of the above case, the abortion rate in the United State has fallen down. President Donald Trump became a part of the March for Life rally which took place every year in the remembrance of Reo.

But, rather this ruling opened a Pandora’s box and since then there has been a big doubt upon the laws of other states such as- Alabama, Missouri, and Louisiana.

The law of Louisiana was enacted in 2014 and the Governor, John Bel Edwards entered into a repulsive agreement on Anti- Abortion Law, which imposed a ban on the act of abortion if a fetal heartbeat gets detected in the tests. The law did not provide an exception for the rape and incest victims. According to the law, a woman who opts to have an abortion would be required to go through ultrasound just before the process starts and if the heartbeat is diagnosed the option of abortion will not be permitted unless the pregnancy is so dangerous to her health that it can cause death or irreversible impairment to her body. Any doctor who goes against the law would face two years imprisonment along with revocation of his/her medical license. Another important point in its law is that the patients will not be provided admitting privileges by the doctor who undergoes an abortion.

This law acted as one of the most difficult hurdles and restrictions for the women seeking an abortion. After a huge public outrage, the case of June Medical Services v. Russo came up in 2014 which demanded doctors to have admitting privileges within thirty miles of diameter, which will permit the patient to be admitted to the hospital.

If the law continues to exist, the state having a population of more than 4.6 million people out of which 51% comprising of women would face a huge downfall as the three abortion clinics would be reduced to only one. Also, only one medical practitioner would perform abortions and would be given admitting privileges. The critics are of the view that it would narrow down the access to have an abortion while the supporters say the laws are made for the benefit and safeguarding the interest of the community thus, this privilege will protect women’s health while. In solely 2019, more than 350 legislations in which restricted abortions came up across the country.

The US court is of the opinion that Louisiana’s law is identical to Texas law that was struck down in 2016 in the case, Whole Woman’s Health v. Hellerstedt. It was held that:

“Perks provided to women were subjected to major hurdles, particularly for those who wanted to go for abortion as it restricted them and created an ‘undue burden’ on their constitutional rights”.

This suit in the case of June Medical Services v. Russo was brought by abortion activists and abortion clinics. Their claim before this Court was that Louisiana’s law does not adhere to the alleged right of a woman to abort her unborn child. Then finally on 29th June 2020, the Supreme Court by 5:4 majority bench declared the law to be unconstitutional, the prerequisite condition being the need of doctors at local hospitals that possessed the admitting privileges. Chief Justice Robert while giving the judgment stated, the Louisiana law was a burden on women who wanted to go for adoption to the same extent as in the Texas law. 

Timeline of the case – June Medical Services v. Russo 

Date of Hearing	Description
July 2013	Texas’s HB 2 signed into law
June 2014	Louisiana’s Acy 620 signed into law
June 2016	Texas’s HB 2 stuck down by the Supreme Court
April 2017	Louisiana’s Acy 620 Struck down in the District Court
September 2018	5th circuit court of appeals reverses course, approves Act 620
January 2019	5th circuit refuses to rehear the case
February 2019	Supreme Court puts a temporary hold on Louisiana’s law
May 2019	Louisiana adds third- party standing question to the case
October 2019	Supreme Court agrees to hear Louisiana’s case
March 2020	Final oral arguments

Justice Breyer wrote that the Louisiana law, which was enacted in 2014, imposed great burdens on access to abortion but did nothing to protect women’s health, its ostensible goal. He wrote that hospitalizations after abortions were rare, that women would receive medical care at hospitals whether their doctors had to admit privileges or not and that abortion providers were often unable to obtain admitting privileges for reasons unrelated to their competence.

But in the end, Chief Justice Roberts’s commitment to precedent sank the Louisiana law. He continues to believe that the case was wrongly decided. The question today, however, is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.

The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons, the chief justice wrote in a concurring opinion that did not adopt Justice Breyer’s reasoning. Therefore Louisiana’s law cannot stand under our precedents.

Still, it would be hasty to conclude that Chief Justice Roberts was prepared to strike down other abortion restrictions or that he would vote to sustain the Roe decision, which in 1973 established a constitutional right to abortion, should a direct challenge to the ruling reach the court.

The concept of admitting privileges

The whole debate is about admitting privileges, given by the hospital to the doctors which allows them to admit patients and provide them with proper treatment, medication, and a rational amount of observation which is needed.

To check up on competency and safety, all the doctors of Louisiana are provided licenses through a different process.

The process of granting admit privileges is completely subjective in nature and is totally in the hands of the hospital authorities whether they want to provide it to the doctor or not. The criteria to judge is by the amount of revenue that a doctor brings to the hospital. Here, revenue is a term used for patients. Hospitals can also decline the admitting privilege if they do not require a doctor’s speciality that is, abortion care, at their hospital. 

As abortion is not a complex process, it has a low complication rate therefore, the need for having multiple hospitals is not felt. It was just an added step that did not feel necessary for good care and admission to the hospital is not a prerequisite condition after abortion. There is no compulsory proviso or scientific rule that proposes that admitting privileges would make the procedure of abortion safer. According to the Guttmacher Institute, In United States, the requirement of admitting privileges for abortion providers is for three states namely- Missouri, North Dakota, and Utah while initiatives taken for the other states have been put on hold.

The only contention from the supporters is, the purpose of the law is to ensure the safety and health of women and if the state can’t provide for admitting facilities and proper medical practitioners,  will hamper the purpose of making law.

Jeff Landry, The Attorney General of Louisiana in March stated the oral arguments in Supreme Court that hospitals lack basic safety regulations as well as the data of the record of admitted woman patients. Nonetheless, Louisiana demands a special exemption from medical standards that apply to similar surgical procedures in the state.

According to the research, written by San Francisco researchers in 2014, it was found that over about  50,000 abortion patients, major complications take place less than a quarter of a per cent of the time.

Where patients acquire abortion

There has been a 5% decrease in facilities from 2014 in the United States. It’s been observed that the number fell down from 1,671 to 1,587 in 2017. Constitution of hospitals in the state is as follows:

• 16% of the total hospital facilities were made for the purpose of abortion.
• 35% consisted of non- specialized clinics.
• 33% were hospitals available for other treatments and mishaps.
• Lastly, 16% comprised private physicians’ offices.

There were 4 facilities providing abortion in Louisiana in 2017, and 4 of those were clinics. These numbers represent a 20% decline in clinics from 2014 when there were five abortion-providing facilities overall, of which five were clinics.

In 2017, 89% of U.S. counties had no clinics providing abortions. Approximately 38% of women that are almost one- third were at reproductive-age at that point in time. They had to travel more than 25 miles elsewhere to obtain an abortion. 

Approximately, 72% of Louisiana women suffered in 2017 due to a lack of clinics in those counties.

Limitations on abortion 

From 1st March 2020, the following restrictions on abortion came in effect in the state of Louisiana:

1. A ban will be placed on abortion if Roe v Wade gets overruled.
2. State directed counselling is provided to patient 24hours prior to the process of abortion. The meeting shall be in private. It focuses on discouraging the woman to go for adoption.
3. The use of telemedicine to administer adoption is strictly prohibited.
4. Affordable Care Act may not act as coverage of abortion for the health plans which are offered in the state’s health exchange.
5. Before going for an abortion, the eligibility criteria for a pregnant minor is to have a compulsory consent of one of the parents.
6. Only in the case of life endangerment, rape or incest, the option of Public funding can be availed.
7. It is mandatory for the patient to undergo an ultrasound at least 24 hours before adoption. On the provider’s part, The details including the image must be known to the patient.
8. The abortion can only be performed at 20 or more weeks postfertilization (22 weeks after the last menstrual period)  in cases of deteriorating physical health of the mother or a child. The law is based on the contention that it is inconsistent with scientific evidence which is rejected by the medical community, that a fetus can feel pain too at that point in pregnancy.
9. The state requires abortion clinics to have a just and proper physical atmosphere, reliable staff and updated equipment.

Conclusion

Since Roe v Wade was decided in 1973, these are absolutely the most extreme laws that have been passed and the Right to abortion is more vulnerable right now than in 1973. 2020 literally could not be more important. Roe v Wade involved a state ban on abortion with criminal penalties and women who wished to obtain an abortion challenged that law and won in the Supreme Court. In the above case, the Supreme Court held that the constitution protects the right of women to terminate a pregnancy. In 2019, the real shift began and these laws represent direct, frontal attacks on Roe v Wade. The pertaining laws in Georgia, Ohio, and Kentucky prohibit all abortions after six weeks of pregnancy. Even the new laws that have been passed, they cannot take effect yet. So all of these laws are being challenged immediately over the passage of time and all of them have either been or will be blocked by the Federal Courts. What these laws represent is a desire to get the Supreme court to revisit Roe v Wade.

For the last couple of decades, the strategy has primarily been to restrict access to abortion but not to prohibit abortion outright. Therefore, in particular low- incomed women have found it almost impossible to get abortions due to the current restrictions in many states. The law that currently stands is pretty clear that the states cannot prohibit abortions and they are only under the duty to take measures for regulating abortion. So far in 2019, 17 bans have been signed-in 10 states but every type of ban is facing a legal challenge, and none of the laws has been enacted. 

The change came in the starting of 2019 after the composition of the Supreme Court changed with the entry of Brett Kavanaugh being replaced with Justice Anthony Kennedy. The last time the Supreme Court walked very close to the edge of overturning Roe v Wade in 1992, a little bit like now, many, many people thought that Roe was sort of on the chopping blocks. There were a couple of new republican appointees on the Supreme Court, and many people thought Roe was very vulnerable. The Supreme Court walked up to the edge of overturning Roe, and then pulled back and actually reaffirmed the core holding of the case. This surprised many people when SC did that and this issue became very socially divisive. If this case were overturned, many new abortion laws would go immediately into effect and the question of abortion would go into the hands of states.

This case is positioned to be a key issue in 2020, and many candidates are already speaking it out. 

References

• https://www.vox.com/2020/6/23/21298955/supreme-court-abortion-religion-trump-subpoenas-june-medical-seila-law-espinoza-mazars
• https://marchforlife.org/our-impact/
• https://www.goodmorningamerica.com/news/story/abortion-restrictions-roe-wade-63259022
• https://www.nytimes.com/2020/06/29/us/supreme-court-abortion-louisiana.html

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