Overthrowing Roe Without Overthrowing Roe

Overthrowing Roe Without Overthrowing Roe
Activists in front of the Supreme Court during the 47th annual March for Life. Photo:Getty

On Wednesday, the Supreme Court will hear oral arguments in a case that could loudly overturn Roe v. Wade—or, more likely and more insidiously, quietly render it an air-quoted technicality. It is the first abortion case to come before the conservative-majority court, stacked by Trump appointees Neil Gorsuch and Brett Kavanaugh, and reproductive rights activists fear it will open the floodgates to legal incursions meant to strategically and systematically erode the right to abortion in this country. The court’s ruling could enable a new era of anti-abortion activism that makes the incremental back-door assaults on Roe in past years seem tame and inefficient by comparison.

The case, June Medical Services v. Russo, is a challenge to a Louisiana law requiring abortion providers to have hospital admittance privileges within a 30-mile radius, which anti-abortion activists have found is a stunningly effective way to shutter clinics en masse, due to prohibitive requirements. In fact, the Louisiana law is nearly identical to Texas’s HB 2, which similarly required hospital admittance privileges and led to the shutdown of 21 of the states’ 40 clinics. (Perhaps you recall Sen. Wendy Davis 11-hour filibuster in 2013, which temporarily delayed the bill’s passage.) This approach is equally brilliant and morally corrupt: Under the guise of concern for women’s health (there is no valid medical argument for the hospital requirement), anti-abortion activists render the procedure broadly inaccessible in a given state.

This was previously acknowledged by the Supreme Court in a successful challenge to HB 2. In 2016, just four years ago, the court ruled in Whole Woman’s Health v. Hellerstedt that admittance privileges were medically unwarranted and created an “undue burden” on the right to abortion. That burden has been the intentional aim of anti-abortion activists for the last several years with the rise of Targeted Regulation of Abortion Providers (or TRAP) laws, which, rather than outright banning the procedure, impose prohibitive restrictions. Now, though, we have a conservative majority Supreme Court that could rule differently.

The June medical case is about whether states can restrict abortion to the point that it’s inaccessible, essentially rendering Roe v. Wade meaningless.

It is possible for the court to use June Medical Services v. Russo as an opportunity to overthrow Roe outright, but the more likely outcome is that the Louisiana law will be upheld. If that happens, it would not only shutter all but one of the abortion clinics in Louisiana, but also pave the way for similar legislation in other states. Of course, TRAP laws are a way to make abortion inaccessible without directly outlawing it. Reproductive rights activists have sounded this alarm for many years, but this case has the power to accelerate and enshrine that process.

“At its heart, the June medical case is about whether states can restrict abortion to the point that it’s inaccessible, essentially rendering Roe v. Wade meaningless,” said Kelley Robinson, executive director of Planned Parenthood Action Fund, on a conference call Tuesday with reporters. “Though Louisianans will be the first people to feel the impact of this case, there’s no doubt that this case will have reverberations throughout this country.”

Separate from, or perhaps in conjunction with, this ruling is the possibility that the court will limit the ability to bring lawsuits in cases just like this one, in which the plaintiffs are an abortion clinic and two physicians. As Ian Millhiser explains at Vox, this case is the consolidation of two separate ones, one of which addresses the question of “whether the right party brought this lawsuit in the first place,” the argument being that only pregnant people seeking abortions should be allowed to sue over their own, individual right to obtain an abortion. This is contrary to four-plus decades of precedent allowing for what’s known as “third-party standing” in which abortion providers can challenge restrictive state laws around abortion.

To be clear, almost every abortion case before the Supreme Court was brought by third-party plaintiffs. If the court rules in favor of this argument, reproductive rights activists could effectively lose the ability to fight TRAP laws, as well as other legal assaults, including state bans on abortion. Taken as a whole, the threat of the Supreme Court’s decision in June v. Russo is the realization of anti-abortion activists’ long-term game plan: strip away access to healthcare while claiming to be concerned for women’s health, usher in further state-by-state attacks, and, perhaps most disturbingly, prevent the ability to fight back. It is overthrowing Roe without overthrowing Roe.

As I began writing about this case, I found myself pressing my fingers to my eyes to staunch the stinging approach of tears. How do I feel? What am I thinking? I asked, as do many of us who are tasked with finding a take on the day’s news. All I could observe was the sensation of a howling wind sweeping across the plains of my hollowed out insides. Fatigue, sorrow, low-grade circumstantial depression. This is the cumulative effect of years and years spent watching the cunning, calculated strategy of anti-abortion activists—and now seeing that strategy find the favorable political circumstances under which they might truly thrive.

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