Bonus Pod: Abortion Went to the Supreme Court ... and We WON!

On June 29, 2020, the Supreme Court struck down limitations to abortion care in Louisiana in a major case, June Medical Services LLC v. Russo. T.J. Tu, Senior Counsel at the Center for Reproductive Rights and co-counsel for the June Medical Services LLC v. Russo sits down with us to talk about this major victory for abortion rights in Louisiana and beyond. 

The Louisiana law that was argued before the Supreme Court was designed to shut down the last remaining abortion clinic in the state by requiring abortion providers to have admitting privileges at a local hospital. While that sounds like a reasonable request on paper, that requirement is unnecessary and difficult to achieve, making the purpose of the law to add yet another restriction onto abortion care. In 2016, the Supreme Court struck down an identical law called Whole Women’s Health v. Hellerstedt, which required that abortion providers in Texas also have admitting privileges to local hospitals. Since it was ruled unconstitutional in Texas four years ago, the same rules apply to Louisiana today.

Had the ruling been different, all clinics in Louisiana would have closed except for one. All abortion providers would be forced out of practicing medicine, except for one. This would have been a devastating outcome for the over 1 million patients of reproductive age in the state of Louisiana. It is also important to remember that the Supreme Court’s ruling on June Medical is a preservation of the abortion-access status quo, which continues to be practically inaccessible for many across the country.

Links from this episode

Center for Reproductive Rights on Facebook
Center for Reproductive Rights on Twitter
More information on June Medical Services LLC vs. Russo here

Transcript

Jennie: Welcome to RePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: It's me, your host, Jennie, and my preferred pronouns are she/her. So I'm really excited for today's interview. We get to talk to TJ Tu, who is one of the co-leads on the June Medical Services case with the Center for Reproductive Rights. We have a little bit of some issues with audio connection. So bear with us, you know, again, everybody is recording from home and so not in ideal conditions, but I think it should still be a good conversation for everybody to hear. Hopefully this is going to go out before the fourth. So, you know, I'm just thinking about the long weekend and after all of the stress of waiting for this June decision to come down and then to get a great decision… y'all… I don't know about you, but every good decision that was coming out of the Supreme Court stressed me so much more about what was going to happen in this case. And I am just so glad that we got a good decision. And, you know, as I mentioned in the last episode, it's not perfect. Like it just preserves the status quo, which is already not good for people. There are so many people who are not able to access the abortions they want or need. So, you know, there's a lot of work that needs to be done. This just does not make it worse. So we talk about that. So it'll be nice not to be stressing about that and not have to worry about, you know, logging into SCOTUS blog all weekend to see what the next case is going to bring. So now I don't need to worry about it until Monday when we might get the decision in the birth control case, which we will, again, you know, do a follow up, a bonus pod so that y'all can hear what happened and what it will mean for everybody. I think that is the only big thing that we have going on right now, for me, not really going to have any big plans this weekend, my cats get really upset with fireworks. And so I will be here to make sure that they're not freaking out too bad. They tend to be a little loud. My condo is on the seventh floor. So when people are shooting off fireworks, they're exploding. Like not that far from my level, it can be pretty loud in my place. So the poor little things get really upset. Well, I'm just really excited to have a three day weekend. I'm going to read some like, fun books probably. Well, I already said I'm going to watch Hamilton. Maybe start a new TV series. I don't know. I just finished what I was watching. I watched the most recent season available on Netflix of American Horror Story. And now I'm kind of at the point where there's nothing that's speaking to me. So I don’t know if anybody has any good suggestions for a TV series I should watch, let me know. So I was looking through things and nothing was speaking to me. So with that, we will turn to my interview with TJ and hear all about what happened at the Supreme Court with June Medical. Hi TJ, thank you so much for being here today.

TJ: Thanks for having me.

Jennie: Before we get started, do you want to do a quick introduction, including your preferred pronouns?

TJ: Happy to. I'm TJ Tu. I'm senior counsel at the Center for Reproductive Rights and I'm co-lead counsel on the Supreme Court case that was decided this week and my preferred pronouns are he/him.

Jennie: First? Congratulations. Like let's just get that out of the way that was such an amazing win for abortion this week.

TJ: Well, thanks so much. It's a huge relief for us.

Jennie: So I guess before we talk about the case and what happened, we should talk a little bit about what the case was about. We did a fuller conversation in December, but you know, it probably would be good to just kind of wrap up what we're talking about in this case.

TJ: Absolutely. So our case was about a law to shut down the last remaining clinics in that state. And they're really deceptive in fashion. The law required abortion providers to have admitting privileges at a local hospital. And while that might sound good on paper, the effect of that requirement is really to put qualified abortion providers out of the practice of medicine, because it's just a reality that abortion providers can't get hospital admitting privileges. And it's also true that they don't need them. And so when you force physicians to meet requirements that have no medical purpose and they can't possibly comply with the consequences, they're forced to stop providing abortions. And the case really was a test of the Supreme Court's commitment to its own abortion precedent. And the reason for that is that the Supreme Court struck down an identical law four years ago. In another case that the Center for Reproductive Rights brought called Whole Women's Health. The law in that case was out of Texas, but it also required admitting privileges. And the Supreme Court said that law was unconstitutional. And yet in this case, a lower court have held the same law in Louisiana. So we went to the Supreme Court and said, look, if the law was unconstitutional in Texas four years ago, it has to be unconstitutional in Louisiana today. And thankfully justices of the Supreme Court agreed.

Jennie: So cut and dry to us. Like, I mean, obviously it was unconstitutional, but I did not feel that way, you know, Saturday or Sunday, like I was not sure that this was what the court was going to do.

TJ: Well, none of us were because of course there's a big difference between now and four years ago, the differences, the composition of the Supreme Court and a lot of people out there were prognosticating that just based on the change of membership on the Supreme Court, the outcome of the case should be different. And we argued throughout the case that that really shouldn't happen. That people's constitutional rights should not depend or blow in the wind based just on who the membership of the Supreme Court happens to be. And thankfully the chief justice, chief justice Roberts recognized that and said that even though he was in the dissent four years ago in the Texas case, he was in the majority this week to say that the Louisiana law was unconstitutional.

Jennie: Let's talk a little bit about the decision. I mean, overall it's really good news.

TJ: It's huge news because again, if we would have lost this case, all of the clinics in Louisiana would have closed except for one. And all of the abortion providers would be forced out of the practice of medicine except for one. And that sounds terrible. And it is terrible. There are over a million women of reproductive age in the state of Louisiana and roughly 10,000 patients in the state [in need of] abortion care. And so it was patients had nowhere to go. So it was a huge relief Supreme Court struck down this law and allowed the clinics to continue to operate. But of course it just preserves the status quo because we already won this case four years ago. And for the simple fact that we had to fight so hard just to preserve…the access that we preserved and fought for and won years ago tells you something about the state of abortion care and how contentious the abortion rights argument.

Jennie: So, you know, that's really important, but the Supreme Court just preserved the status quo and the status quo was already really not good for a lot of people trying to access abortion care.

TJ: That's absolutely right. What we've seen is that over the last 10 years, hundreds of abortion restrictions have been attacked and abortion access has been eroding in states across the country. And while this week's decision was a very important victory, that trend unfortunately may well continue because Roe v.Wade is still on the books, but the opposition to abortion is relentless and they will continue to try to find ways to erode abortion access while keeping Roe v. Wade and not touching that for the long game for opponents of abortion rights is of course to overturn Roe v. Wade, but they have many strategies that they have been pursuing sadly, professionally to make abortion access a practical unreality for patients while preserving in name only the right to abortion.

Jennie: So, you know, this was a really great decision for abortion rights, but there are also a lot of cases that are working their way through the courts right now…

TJ: There are a lot of cases and there will be many more. And the reason for that is that opponents of abortion never take [cases] lying down… it tends only to energize opponents to abortion, right? And so I'm worried that we'll see even more abortion restrictions, and that will lead to more litigation and supporters of abortion rights and reproductive rights need to be just as vigilant…

Jennie: Yeah. And I think a lot of people kind of were seeing that even in John Robert’s concurrence, right, they were seeing that he was like, it was this specific because it was exactly a carbon copy of the Texas decision. Like that's why I'm doing it. Otherwise. I still think that decision was wrong.

TJ: So yes, the chief justice thankfully voted with the majority right down to Louisiana law. But it is really important to note that he said, if he was looking at this in the first instance, he would still have ruled the same way he did four years ago, in the Texas case. And that's remarkable in Texas. And that was designed to shut down clinics-- to shut down half the clinics in that state-- for no good medical reason. And the justice’s view today is that law was fine. And what swayed his vote is this principle of law that says that light cases should be decided in the same way. And so he was looking at the same case four years later and saying, well, my commitment to that principle override my own views in this particular case. And because this case was ethical in the case four years ago can out compel and to read, I regard as the right result, which is striking [it] down…but he left open. That is another case with different facts. He might well revert to his own views on abortion, right. And reach a different conclusion. Again, I'm really gratified that the chief justice got to the right place in this case, but very concerned for the future and how he might rule in future abortion rights cases.

Jennie: I definitely felt like we should celebrate the win, but just be prepared that this is going to be a long ongoing fight.

TJ: All of us who are committed to reproductive rights should be very concerned about the future with this composition of the Supreme Court.

Jennie: So we always like to kind of wrap up the podcast by focusing on what actions listeners can take. Is there anything that they should be doing right now?

TJ: Well, as always people should be supporting their local abortion providers. Like I said, I'm worrying that opponents of abortion rights will only inspire them and become more aggressive in terms of [harassing] providers, and really stand by them and give them all the support that they need to continue to provide this essential healthcare. People also should know that there is a legislation in Congress, the Women's Health Protection Act that could really help us here. The Women's Health Protection Act would enshrine into federal law protections of Roe v. Wade, and make it much harder for states to impose medically unnecessary restrictions. And there now is a solid majority in the House of Representatives in support of the Women's Health Protection Act. And there's growing support in the Senate, but obviously more work that needs to be done. There are people who are listening should take a look at that law and seeing how their legislators support that law and about the women's health protection and encourage it to be enacted.

Jennie: Well, TJ, thank you so much. Take this weekend, relax. It's a long weekend. Like I hope you get a chance to like unwind a little bit, take some time to celebrate before we start thinking about the next fight. Okay. Everybody. I hope you enjoyed my interview with TJ and sorry again for some technical difficulties. Again, thank you for bearing with me as I'm recording from home. It makes it a little bit more difficult than when I can record a person can get better audio quality, but it's the world we're living in right now. And that will probably be true for a little while. So I hope everybody has a lovely long weekend. Stay safe, you know, wear a mask. If you're going outside, be responsible and we will see you as soon as we have the birth control case decided. And I will tell you what happened in that until then you can find me online.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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