The SCOTUS Case That Could Change How We Access Abortion

Note: At the recording of this podcast episode, the Supreme Court Case was entitled June Medical Services LLC vs. Gee. It has since been renamed to June Medical Services LLC vs. Russo.

On March 4th, 2020, the Supreme Court of the United States will hear a case June Medical Services LLC vs. Russo. This case will examine a Louisiana “admitting privileges” law that would leave only one abortion provider to operate in the entire state. It could also set a dangerous precedent for the future of abortion access across the United States. Julie Rikelman, one of the lead counsels with the Center for Reproductive Rights who will be arguing the case in front of the Supreme Court, talks to us about the impact of this all-important Supreme Court case.  

Louisiana recently passed an “admitting privileges” law, which requires abortion providers to obtain admitting privileges to a hospital located within 30 miles of their clinic. If an abortion is performed without having those admitting privileges, there are criminal penalties involved. While laws requiring abortion providers to obtain admitting privileges may sound innocuous, they are designed to limit abortion care. It is up to hospitals on an individual basis whether or not they extend admitting privileges to a provider, and abortion providers are often denied these privileges. It is also vital to remember that abortion is so safe a procedure that it is very unlikely to require admission to a hospital. The American College of Obstetricians and Gynecologists as well as the American Medical Association have publicly stated that admitting privilege laws are harmful.

If this law were to be enforced, it would have a devastating impact on abortion access in the state of Louisiana. The state would be left with one abortion provider at one clinic for approximately one million women of reproductive age in Louisiana. This law is also identical to a law from Texas that the Supreme Court ruled unconstitutional in the arguments Whole Women’s Health v. Hellerstedt just three years ago. Because the court has changed its makeup in the last three years and now seats conservative Justices Brett Kavanaugh and Neil Gorsuch, reproductive health and rights advocates are concerned.

 If this law is upheld, it would have monumental implications for the whole of the U.S., as well as the state of Louisiana. It would set a precedent that states may pass legislation that carry no benefit to the health or safety of those seeking abortion, and will erect blatant barriers to care. It also disregards the rule of law that was originally seen in Whole Women’s Health v. Hellerstedt. State legislatures since 2011 have quietly passed over 400 laws that make it difficult for people to access abortion, even though Roe v. Wade is the law and a constitutional right. If this law is passed, it is yet another way to chip away at Roe without touching Roe itself.

Links from this episode

Center for Reproductive Rights on Twitter
Center for Reproductive Rights on Facebook
Information on Whole Women’s Health v. Hellerstedt
Information on June Medical Services LLC v. Russo

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: Welcome to this week's episode of RePROs Fight Back. I'm your host, Jennie Wetter. Before we get started, I just want to say thank you to everyone who reached out to me about meditation apps. It's been super helpful to check out the multiple apps that are out there and hopefully I will be better about doing the meditation that helps me de-stress. The goal, the goal is I will be better. So this week's episode we are going to focus on two major things that are happening and next week. One of them will be the actual episode and that is focusing on the Supreme Court case that's coming up next Wednesday, which is June Medical Services vs. Gee but you know, I've been trying to do these little personal intros. So personally, there's something else that's happening in the next week that is also important, and that's my birthday. I am turning 40 which-- wow. I'm not really sure how that happened. But yes, I am turning 40 and I'm not really a person who freaks out about their birthdays. I'm not worried that like “Oh my God, I'm turning 40 I'm getting old.” Which is nice. That's nice that I don't have that panic but it does mean it's a chance to like kind of reflect back on where I am now and like how I got here and I think that to me, yeah, I'm just so lucky to be where I am right now. And if you had told 20-year-old Jennie who was an undergrad at the University of Wisconsin, which I cannot also cannot believe that was 20 years ago, that I would be working on reproductive health rights and justice and living in Washington D.C., and hosting a podcast, I mean-- beyond not knowing what a podcast is-- that I'm doing something so public facing and talking to people about something I'm so passionate about, I would never believe it ever. 20 years ago I was living in Madison. Like I said, going to University of Wisconsin, I was really focused on environmental science, looking at the environment in the U.S. and then things started to slowly change. So 20 was kind of a momentous year for setting me on this path. I did my study abroad that summer. I went to Kenya and was learning about human wildlife conflict and how the area outside the major national parks in Kenya were people who were traditionally nomadic were starting to settle down more and having conflict with the animals. So it was really, there's focus of environment and development coming into conflict when particularly in Kenya, the wildlife was such a huge part of their economy.

Jennie: It really shifted my focus to a more global space, but also a more development based space and more people focused space then maybe I had been before. Um, and also with that changed my path from, you know, staying in Wisconsin or you know, staying focused on domestic things is what brought me out to D.C… I moved out here for grad school, to go to American University's School for International Service and got my degree in global environmental policy and focused on environmental peace building. So, you know, it was a big change from focusing on environmental science. It was, you know, shifted more towards policy, which is not really where I had envisioned myself for sure when I was in college and before college, which brought me to the Population Institute, which got me focusing on reproductive health and rights, particularly internationally. And then slowly I'm much more focused domestically. And that's how we started doing the podcast was, you know, there were so many issues under attack and with the Trump-Pence administration starting, it really felt like there were so many things happening that we needed to add a voice, a place where people could go and learn about all of the ways the administration was attacking reproductive health and rights. But not just that. I mean there were other issues too, but it was our chance to help people understand what was happening and what we could do to fight back. And again, it's definitely something that 20-year-old Jennie would have never envisioned herself doing.

Jennie: And it's been great. And I might have been dragged a little bit reluctantly into doing the podcast at first. Just, again, didn't see myself being that person who would be our public face to be out there doing something like this. And I am really grateful that I was challenged and pushed to do this and I can't imagine not doing it now. It has been so wonderful to talk to all of the amazing people I work with about these issues and bring them to you, the listeners. You have all been wonderful and engaged and I just, yeah… so I guess turning 40 has made me just sit back and just be grateful for everything I have and much more committed to fight, to ensure that we all get to keep our reproductive health and rights and that we're all going to say no more. We're not letting this administration; we're not letting the court; strip anything else away. So with that we'll turn to this week's episode, which is focused on the courts and we are going to be looking at the case that's going to be argued on March 4th and if you're in the D.C. area, there will be a rally in front of the Supreme Court that morning. So if you're here you should definitely show up. Unfortunately, I'm going to be out of town so I won't be there, but normally I would. So if you can, you should definitely show up. But I was lucky enough earlier, I guess late last year, so I think it was in December, to go up to New York and before things got too busy for her, talk to Julie Rikelman with the Center for Reproductive Rights who is going to be arguing the case in front of the Supreme Court-- and was able to talk to Julie about what is at stake in June Medical Services vs. Gee and to learn all about it. So I hope you enjoy my interview with Julie and I will see you all in two weeks when I get back.

Jennie: Hi Julie.

Julie: Hi. Thanks for having me.

Jennie: Thanks so much for doing this. So the big case is coming up.

Julie: Yes.

Jennie: So maybe before we talk about the case, we should talk about what it's about. So you may want to tell us a little bit about the law that Louisiana passed.

Julie: Absolutely. So this is a law that's called an admitting privileges law. And what it requires is that every abortion provider in the state of Louisiana has to obtain admitting privileges at a hospital within 30 miles of where he or she performs abortions. And if the person performs an abortion without having those admitting privileges, there's actually criminal penalties involved. So it's a very restrictive law that's really designed to limit the number of abortion providers who can provide the service.

Jennie: And I think one of the things about these laws is like on their face, they don't necessarily sound so threatening or scary, right? Like, Oh yeah, no doctor should have admitting privileges to me. We want to explain why that's problematic.

Julie: Yes, absolutely. You're right on it's face. It doesn't necessarily seem bad, but these laws are very deceptive. And I think one of the most important things for people to know is that these laws are pushed through legislatures, by politicians and people who are against abortion, not by doctors. And in fact, major medical organizations throughout the United States, pretty much every single one that you've ever heard of oppose these types of restrictions. And specifically the American Medical Association and the American College of Obstetricians and Gynecologists. So two of the most important major medical orgs in the United States have come out against the Louisiana law.

Jennie: Absolutely. Yeah. Hospitals don't just hand out admitting privileges.

Julie: They don't. And you know the reason the major medical organizations oppose these laws is because they really do nothing to protect patients, health and safety. So the politicians that were pushing these laws claimed that this was about health and safety, but it's not. It's about restricting access to abortion and it doesn't do anything to improve health and safety.

Jennie: Okay. Do we want to touch on why it is hard for people to get admitting privileges?

Julie: Yes, I would love to do that because I know a lot of people don't quite understand why it might be difficult. So the important thing to know is that whether or not to give admitting privileges is completely up to the hospital. So it's the decision they can make based on their own business needs. They can deny a doctor admitting privileges for just about any reason, including that they just don't want to be associated with an abortion provider. And in a state like Louisiana, that's actually a very serious concern. And we saw that we saw doctors being denied privileges for that reason. But even if you put that aside, admitting privileges are really designed for inpatient physicians. So you know, doctors that actually treat patients in the hospital, that's why they're called admitting privileges. And abortion is so safe that patients don't have to go to the hospital. It's actually one of the safest procedures that we have in contemporary medicine. It's an outpatient procedure. So it's performed by physicians who are outpatient doctors. They don't admit patients to the hospital. And for that reason, hospitals have no reason to give them admitting privileges. So that's why they're requiring something that makes no medical sense and that hospitals have no business incentive to give to physicians, then it becomes impossible to comply often.

Jennie: Yeah, I think that's the really one of the really important things is it's a business decision. You know, it's about who's going to bring us the money partially and abortion providers are not going to bring in money, so why would you grant them admitting privileges in one stream? And this goes back to something we talked about in a previous episode and there's also a lot of Catholic hospitals also that would never grant admitting privileges when you have seen kind of uplift of hospitals getting taken over by the Catholic hospital system, whether you are aware that your hospital has been or not and so they would not grant admitting privileges.

Julie: That's true. It can be very hard to get admitting privileges if you're a physician that provides abortion at a Catholic hospital or many other hospitals. And you know, another reason why that is, and I think it's sort of important for people to, to know because it's very concrete, is that people will actually come and if they find out that there's a doctor who performs abortions, who's associated with the hospital, they will come and picket outside of the hospital. And we saw that happening in Louisiana. Protesters would show up outside of the hospital with signs and picket at the hospital. And so for that hospital, why, you know, why would it grant privileges to a physician and invite protestors if there's no good business reason for them to do so. And so that's a real concern. So again, they're setting up a requirement that has no medical basis. It does nothing to make abortion more safe for patients, but yet it's very hard for physicians to get admitting privileges. And so it becomes, you know, really just a way to shut down abortion clinics.

Jennie: So now that we have a little background on what the law is and does, let's talk about the case. So that's coming up soon.

Julie: Yes.

Jennie: We just found out very recently that the argument is going to be March 4th and so what's important to know about this case?

Julie: It's a couple things. So one is just the impact of it. So for the state of Louisiana, if this law were actually to be forced, it would be devastating impact for abortion access in that state. The state would be left with one doctor at one clinic to provide abortion services for the approximately 1 million women of reproductive age in that state. So dire, dire situation if the law is fully enforced. And I think the other really important thing for people to know is that this law is identical to a law that the United States Supreme Court struck down just three years ago. A law from Texas, exactly the same law. And the Supreme Court said the law is unconstitutional because it shuts down clinics, it restricts access to abortion, and it doesn't have any benefits for health and safety.

Jennie: Yeah, I think that's one of the things that really, yeah, concerns me the most when I saw that they picked up this case was that we just had the Whole Women's Health case and this is exactly the same. The only thing that has changed is the court, you know…

Julie: It's right, you're absolutely right. People ask me how, how could we be, I put this record on the same exact case in just three years. That doesn't make sense to people. And it is surprising and I think I can explain a little bit about how we got there. But you know, the interesting thing is the Louisiana law, it's really important to know was passed just a few months after the identical Texas law took effect in Texas and shut down half of the clinics in that state. And so the Louisiana legislature knew that. They were made aware of the fact that this Texas law had just had this devastating impact next door. And in the words of one of the anti-abortion advocates who is pushing for the law that had had tremendous success enclosed in clinics, the state of Texas and Louisiana passed it. And knowing that, and it was being litigated in the courts at about the same time as the Texas law. And as you said that the case that the Supreme Court decided on the Texas law was cold called Whole Women's Health and they said the Texas law was unconstitutional and yet here we are again just a few years later. And the reason that happened was we have been litigating this case since the beginning and we won at the trial court level. So the trial court held a trial, it listened to witnesses, it found that this law has no benefits for health and safety, just like the Texas law. And it struck it down. But the United States Court of Appeals for the fifth circuit, which covers both Louisiana and Texas, decided that somehow things in Louisiana are just very different from Texas. And they upheld the law. And then we asked the Supreme Court to take the case and step in and that's how we're where we are just three years later.

Jennie: So I think that one of the things that is worth talking about is what would happen in Louisiana if this, if the Supreme Court were to all of a sudden decide we're going to get rid of a precedent that they set only three years ago, which I think in and of itself is worth talking about. But maybe you talk a little bit about what that would mean for people in Louisiana trying to access reproductive health care?

Julie: It would be devastating for people in Louisiana. So Louisiana would really be left in a dire situation. There'd be one doctor left in the entire state who could ride services. And it's important to understand that the access in surrounding States has also been decimated in recent years. So as I just mentioned, Texas, which is next door to Louisiana, it lost about half of its clinics a few years ago from this identical law. Mississippi has only one clinic left and other states that surround Louisiana have very few clinics. So Louisiana is already in a situation where abortion access for people is limited. If this law is to be enforced, it would be a devastating, dire situation. It would really push abortion out of reach for many people in that state.

Jennie: Yeah, I think that's definitely right. Like that was one of the things that, you know, when you look at where Louisiana is and the access in States around it is also pretty abysmal. So it would really be devastating to that area.

Julie: It would, and you know, it's important to understand people should be able to have access in their own states or in their own communities. So just what it does to Louisiana's terrible. But I just wanted to paint that picture for people that all the surrounding states have really limited access to. So it would really put people in Louisiana in a terrible position.

Jennie: Absolutely. So going back to the Supreme Court and it's just so striking that they're willing to look at a precedent they set only three years ago.

Julie: Yes. Though I do want to emphasize, like I said, we asked the Supreme Court to step in so we are happy that they have taken the case because if they didn't take the case, the ruling from the fifth circuit would have stood and this law would have been fully enforced. So right now we're very happy.

Jennie: …guess more shocking that the fifth circuit was willing to overturn. Sorry about that.

Julie: Yes, correct. It was shocking to us when we read the fifth circuit decision because as I said, the laws are identical. The Louisiana legislature enacted this law knowing what happened in Texas and yet the fifth circuit concluded that despite the fact that the trial court saw all the witnesses said this law has no health or safety benefits, all it's going to do is restrict access. Despite all of those things, that circuit concluded the law could stand and that was a really surprising decision and we just don't think there's any way to square it with the Supreme Court precedent on the Texas law.

Jennie: Yeah. All right. I hope that is, I very much hope that is true.

Julie: I would like to think so what this would mean for not just Louisiana but in the broader context.

Jennie: So looking at what that would mean for states across the country because I think that if somehow the Supreme Court were to decide to overturn this precedent, it could have a real devastating impact on people's access to abortion around the country.

Yes, absolutely. So I think it's important to think about sort of both potential outcomes. So we remain optimistic that we can win this case because as I said, the last clearly on our side and we should win and if we win the case, I think it will send an important message to Louisiana and other states that they can't keep passing these clearly unconstitutional laws and an effort to restrict abortion and access. And I think that would be really important to be emphasized. Again, if the worst comes to pass and this law is upheld, it is a real problem for the country as a whole for a couple of reasons. One, it suggests that states can pass laws that have no benefits at all for women, for patients, and that has devastating impact on access to abortion. And even though abortion is a constitutional right, it doesn't have a lot of meaning if people can't access it. So that would be really disturbing for the Supreme Court to send that message to the states. And I think the other thing that would be really disturbing, which you talked about earlier, is just what it means about our courts and our law and the rule of law. Because these really are the same exact case. The Louisiana case in the Texas case really almost could not be more identical. I can't imagine as a lawyer, a situation where you have two cases that are more identical than this and we should have the same outcome.

Jennie: Yes, that's very true.

Julie: And you're right, I am optimistic that the Supreme Court is going to do the right thing and say that we already ruled on this basically, and we already said, and this is right, that should not take effect. And that would be so important. And I think it also plays into the broader landscape of everybody's so focused on what would happen if the Supreme Court would overturn Roe and has become the thing, right? It's the thing that the media is focusing on.

Jennie: There's all these other things that can happen that would be just as devastating to people's ability to access abortion without actually touching Roe itself.

Julie: You're absolutely right. I'm so glad you said that because that's exactly the issue. So it's important for people to understand that there has been an orchestrated national campaign to push abortion out of reach. The state legislatures since 2011 have quietly passed over 400 laws restricting access to abortion at the state level, and that's just almost more laws than one could imagine. Putting up all sorts of barriers and obstacles that make it really hard for somebody to actually access abortion. Even though Roe is the law and it's a constitutional right, and people's constitutional rights are not supposed to vary from state to state. That's what it means to have a constitutional right. But for many people in this country, the right has very little meaning right now because they can't actually access the service. And you know, there's states that have very few clinics left. Abortion isn't covered in health insurance, you know, either private or governmental insurance. And it just means that people can't actually access it. And all of all abortion restrictions have the greatest impact on marginalized communities. So every abortion restriction will have the most impact on poor people, low income people, people of color and young people. And that's the reality because 75% of people who get abortion in this country are either poor or low income.

Jennie: That's absolutely right. You know, it, it all works together to ensure that people who have a hard time accessing other reproductive health services, so birth control and stuff then also have a harder time accessing abortion services. And you know, it kind of goes back to that laws sounding innocuous and people not understanding how they have a multiplying effect on low income people or people who have a hard time being able to access services. So a 24 hour waiting period may seem like no big deal when you're like, okay, I'll go back tomorrow, but one, maybe your clinic's not open tomorrow. Um, because their doctor is traveling in or you have to take a day off work, find childcare, you're closest clinic is not close. So all of these things work together to really limit people's access to abortion.

Julie: Yep. You're absolutely right. People, you know, for instance, take New York City. I'm lucky I have a job where I have sick days and I could get on the subway and access care, but that is not at all the situation of people in many parts of the country. They may not be able to take a sick day at all. The care may be hundreds of miles away. There may not be good public transportation, making it many, many, many hours just to get there. Um, and then if you have to make that trip twice because there's a state law that requires you to do that twice, it becomes almost impossible for a person to do it. And you know, Louisiana is a great example because it has passed restriction after restriction after restriction on abortion over the years. It's one of the most restrictive states in the country. So there's not just this law. There are many other laws that put up barriers and obstacles for people. Yeah. Although claims that it's about health and safety. Louisiana actually ranks at the bottom of our country in terms of how well and how healthy it's women and children are doing. So it performs the worst on those method measures of women's children's health. It has one of the worst maternal mortality rates in our country and it's really not actually passing laws that would ensure and protect and advance the health of women and children in that state. Jennie: Yeah, we definitely see that. So Population Institute, we do a 50 state report card on reproductive health and rights and Louisiana is continually, I think one of our absolute lowest grades for looking at all the various ways that they are blocking reproductive health. Whether that's not mandating sex education from the very start or having all of these really restrictive abortion laws. One of the things that also is worth mentioning, and we've kinda talked about this, there's so many laws being passed since 2011 is there more cases we should be keeping an eye on that are in the pipeline?

Julie: Well, there's definitely all the cases about the bans and as you said, there's been a lot of reporting on the bans, which I think is warranted because they're extreme and they would impact so many people. But as you said, it's not just about laws that actually ban abortion. You can ban abortion with these other types of laws like admitting privileges, laws, you can have the same impact even though the wording of the laws is not the same. But I do think the bans are important to keep an eye on for a couple of reasons. The first is they're just so extreme. Some of these bans either completely out loud abortion or out lot so early that it would be almost impossible for anyone to access the clinic. So as early as six weeks into a woman's pregnancy. And the other thing that's important to know about them again is how blatantly unconstitutional they are. So the Supreme Court has said yes for decades and decades that you can't ban abortion before viability. And yet so many states in the last two years have passed laws that ban abortion before viability. So they are just ignoring the constitution. They're passing these clearly illegal laws and they're frankly wasting people's tax payers money because you know, defending these laws in court takes resources and those, that money, those resources can be spent actually improve people's health in their states. So it's really disturbing. One of the other trends that we've seen in the last few years, and so there's a number of cases about these types of laws is laws banning that procedure. That's the standard of care for abortion after about 15 weeks. So again, this is an example of the anti-abortion advocates and politicians who just want to push abortion care out of reach through every means possible. They try every type of law. So this is another type of law that we've seen and it just says that again, you know, you could be subject to criminal penalties. You cannot as a doctor provide the procedure that is the standard of care. After about 15 weeks to your patients. There are just really so many things that they're throwing at the wall to see what sticks. And some of them are just getting so egregious whether it's, you know, banning the standard of care saying there's bills. I don't think any of them has passed yet saying that you should re implant ectopic pregnancies, which is not a thing.

Jennie: Yes, it's not. It's not medically possible. It really boggles my mind, the links they go to to pass some of these laws that could be harmful to women. Whether it's, you know, saying they should have a medical procedure that doesn't exist or telling them that they can stop a medication abortion. There's just so many things that are putting doctors in bad positions.

Julie: Absolutely, and I think what's also really important to think about is these laws, they restrict access, but so many of them also, they're demeaning to women. They really, it's state by state. It's the state trying to make women feel ashamed and demeaned because they've made the decision that they need to end a pregnancy and access this health care and that just shouldn't be happening when a person has made the decision that they think it's best for them and their family, that they end up pregnancy, they should not be shamed and demeaned in the process of trying to access that healthcare.

Jennie: Yeah. You see that in so many ways. I think the ones that are clear, I think that run on those has ended was the ultrasound ones, like you had states being like, no, you need to have an ultrasound. You need to look at it and the doctor needs to tell you read the script and you have to listen. Like to me that was just the most blatant example of like just trying to shame a person into not getting an abortion.

Julie: Absolutely. You're absolutely right. That's what those laws are about. They're about shaming women and again, doctors, medical organizations, they're against all of these laws. And so all of these laws are deceptive because the anti-abortion advocates and politicians who are trying to pass them claim that it's about protecting women or you know, some other government interest that they see is important. But no medical supports, major medical organization supports any of these laws.

Jennie: So I always like to end focusing on some positive or at least positive actions that people can take. So what can listeners do to help right now?

Julie: I think there's a couple of things. So I'll suggest to one, I think it's always important for people to speak out. Abortion is often very stigmatized in our country and so it's just important for people to be loud about the fact that base support people's rights to access abortion services. People could write letters to the editor in their newspapers about talking about the case, talking about how important it is to preserve access for people throughout the country. And then another thing is that there is actually a bill in Congress called the Women's Health Protection Act that is trying to create protection for the right to abortion using a statute. So we've got the constitution. This would be a federal law that gives people protection for access to abortion and so people can contact their representatives and tell them that they support that.

Jennie: Absolutely, and we'll make sure to include links to all of those and I would also be remiss to mention on March 4th when the case is heard, if you're in D.C. or in the D.C. area, there will be a big rally in front of the Supreme Court and you should all try to make it if you can be in the area. It's always good to show our support in person when we can and be there for Julie and her colleagues as they're arguing this really important case.

Julie: Yes, that would be awesome. Please come join us on the steps of the Supreme Court. It would be wonderful to have all of you there.

Jennie: Well, Julie, thank you so much for doing this. It was a pleasure to talk to you.

Julie: Thank you so much for having me, miss talking to you. Thanks for listening everyone. If you have questions, please feel free to shoot me an email. I'm at jenny@reprotsfightback.com or you can reach out to us on social media and that's at reprots fight back on Facebook and Twitter, or you can find us on Instagram at reprots FB and always feel free to reach out with questions or comments.

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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