By — Courtney Vinopal Courtney Vinopal Leave a comment 0comments Share Copy URL https://www.pbs.org/newshour/politics/whats-next-for-abortion-legislation-in-the-u-s Email Facebook Twitter LinkedIn Pinterest Tumblr Share on Facebook Share on Twitter What’s next for abortion legislation in the U.S.? Politics Jul 10, 2020 7:03 PM EDT The Supreme Court decision to strike down a Louisiana law on June 29 that would have restricted access to abortion in the state was broadly seen as a win for the reproductive rights movement. Some scholars and activists caution, however, that the narrow decision does not necessarily signal abortion rights will be protected by the high court in future cases. In a surprise 5-4 decision, the conservative Chief Justice John Roberts joined liberal justices in striking down the law, which would have required abortion providers in Louisiana to have admitting privileges to a hospital within 30 miles. If upheld, the law could have shut down all but one abortion clinic in the state. WATCH: What Supreme Court decision on Louisiana law means for U.S. abortion rights “I was sort of bracing for a defeat for the abortion providers, so in some respect, I was pleasantly surprised” by Roberts joining the liberal justices in the decision, said Melissa Murray, an NYU law professor specializing in family law, constitutional law, reproductive rights and justice. But, she warned, “I think it’s a much more muted victory than many perhaps appreciate. The chief justice is very clear that his views on abortion haven’t changed.” When Roberts served as an attorney in two consecutive Republican administrations — those of Presidents Ronald Reagan and George H.W. Bush — he helped author briefs arguing that Roe v. Wade, the landmark case that legalized abortion nationwide, was wrongly decided and should be overturned. But in his Senate confirmation hearing in 2005, he agreed that the case was settled law and said he would err toward respecting precedent. Here’s a look at the implications of the June 29 decision on June Medical Services LLC. v. Russo, and what it means for abortion rights and access in the U.S. going forward. Implications of the Supreme Court’s decision The Louisiana law blocked last week was the second so-called TRAP law — or Targeted Regulation Against Abortion Providers — to make its way to the Supreme Court within the last five years. It was the first time an abortion case was heard since President Donald Trump filled the high court’s vacancies by appointing two conservative justices, Brett Kavanaugh and Neil Gorsuch. The legal argument that TRAP laws hinge on is the idea that “abortion is in some ways bad for women,” according to Mary Ziegler, a law professor at Florida State University specializing in the legal history of reproduction and author of “Abortion in America: A Legal History from Roe to the Present.” Ziegler said the idea behind these laws is that if abortion clinics have more stringent requirements, women will have “better continuity of care.” “It’s part of this general argument that abortion, and abortion providers, are unsafe,” she said when speaking with the PBS NewsHour in February. Kathaleen Pittman, a clinic administrator at Hope Medical Group in Louisiana and a plaintiff in the the Supreme Court case, told the NewsHour in March that the state had tried everything to decimate access to abortion care. “The situation here is already dire and this law would be the last straw for most of the remaining clinics. We’re hopeful that the court will recognize how devastating this law would be for women in our state,” Pittman said in March. The Supreme Court did end up siding with the health clinic, largely because it had already ruled back in 2016 that a similar Texas rule requiring abortion providers to have hospital admitting privileges placed a “substantial obstacle in the path of women seeking an abortion,” constituting “an undue burden on abortion access.” Citing this precedent set in the 2016 case, Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts sided with the liberal justices in blocking the Louisiana regulation from taking effect, even though he had ruled against the Texas law while on the high court in 2016. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote, citing the Texas law that was struck down in 2016. 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.” Abortion opponents protested the Supreme Court’s decision. Kristen Waggoner, the general counsel and SVP of the Alliance Defending Freedom, which signed an amicus brief in support of the Louisiana law, likened reproductive rights advocates’ argument that hospital admitting privileges actually endanger women to “the fox guarding the hen house.” “We’re going to hold abortion to the same standard that we hold other doctors,” Waggoner told the NewsHour. “And I think the standard should be applied to protect women no matter where their feelings are on the abortion issue itself.” Louisiana’s Solicitor General, Elizabeth Murrill, who defended the law before the Supreme Court, also said that clinics such as the ones targeted in the June Medical Services case actually endanger women’s health. “Here we have a history of egregious health and safety violations by the clinics and by the doctors who work there,” Murrill said in an interview with the NewsHour when the Supreme Court heard arguments for the case in March. She added that abortion providers had a vested interest “in being less regulated and having less oversight.” While complications do arise from abortion in the U.S., severe consequences, such as death, are rare. A report released by the non-partisan National Academies of Sciences, Engineering and Medicine in 2018 found that abortion is largely a safe procedure. It noted, though, that TRAP laws and other regulations instituted by states — such as waiting periods and pre-abortion ultrasounds — can complicate and delay the procedure, making it less safe. Even though another law targeting abortion has been struck down by the court for now, NYU Law’s Murray cautioned that the narrow nature of Roberts’ opinion could actually galvanize anti-abortion activists to pursue more restrictive laws in the future. This is because he cited another 1992 abortion case, Casey v. Planned Parenthood, in his reasoning. Murray noted that while the Casey decision affirmed the right to an abortion, it also lowered the standards by which courts review abortion legislation, and allowed states to put in place “regulations to further the health or safety of a woman seeking an abortion,” as long they do not impose an “undue burden” on a woman’s ability to obtain the procedure. While the decision was a nominal victory for the anti-abortion side, Murray said it actually empowered states to continue restricting access to the procedure. She worries the same could happen following the June v. Russo decision. In his opinion, Roberts wrote, “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” He encouraged courts not to weigh the specific benefits against the burdens of abortion laws, as the 2016 Supreme Court decision on the Texas law did, but rather to simply decide whether the proposed legislation poses an obstacle to women who are seeking abortions. Murray called this a “more amorphous” standard. “In reinstating the Casey standard, he’s gutted Whole Woman’s Health,” she said. “We’re back to 1992. And I think what you will see is states empowered to continue restricting access, and courts no longer tethered to weighing benefits” against the burdens of abortion laws like the Louisiana one, she added. The ADF’s Waggoner, though, said she saw Roberts’ line of decision-making as a positive step for the anti-abortion movement, as it may allow states “to regulate abortion providers in a way that protects women as long as there’s a reasonable relation to a legitimate state interest.” How other laws are affecting access to abortion right now While one Louisiana abortion restriction has been settled for now, the issue is by no means going away. There are some 15 abortion cases that are just one step away from making it to the Supreme Court, according to Planned Parenthood. While some of the restrictions in question are similar to the Louisiana law, many others ban abortion at various points in pregnancy, or on the basis of disability. Others ban specific types of abortion, such as dialation and evacuation. These laws are part of a broader strategy by the anti-abortion movement to pursue a patchwork of legislation that gradually chips away at abortion access in the hopes of eventually overturning Roe v. Wade. As of July 1, 22 states had banned abortion between 13 and 24 weeks from a woman’s last menstrual period, according to the Guttmacher Institute, a research institution that advocates for abortion rights. Three states — Alabama, Louisiana and Utah — had attempted to ban abortion at any point in a pregnancy, but those bills were blocked by the courts. In mid-June, Tennessee lawmakers passed a bill that would ban abortions after a fetal heartbeat is detected, as early as six weeks into a pregnancy. The Iowa legislature passed a bill that same week that would require women to wait 24 hours before receiving an abortion, and Mississippi Governor Tate Reeves signed a law banning abortion based on race, sex or genetic issues on July 1. Some states more recently tried to limit abortions due to the COVID-19 pandemic, with Texas, for example, declaring that abortion doesn’t qualify as an essential surgery. While those bans are no longer in play today — they have been blocked by the courts — some could return as states respond to another spike in coronavirus cases. The Guttmacher Institute’s state policy director, Elizabeth Nash, said that she would not be surprised to see states emboldened by the June Medical Services decision pursuing more restrictions similar to the Louisiana law, with the thinking that the courts will be less stringent in weighing the benefits against the burdens of such requirements. “Abortion opponents read these cases very carefully and amend their strategy based on the rulings,” Nash told the PBS Newshour. “It would not surprise me to see abortion restrictions next year that look to these kind of restrictions. You may see states that have, say, counseling and waiting period laws look to make them more burdensome in some way.” Laws targeting abortion providers have affected access to clinics over the past decade. Between 2011 and 2017 the number of abortion clinics in the U.S. dropped by almost 4 percent, but states in the South were more heavily impacted, with a net decline of 50 clinics — 25 in Texas alone. The Midwest lost a net 33 clinics in the same time period. Both regions had the largest share of new abortion restrictions in the country. Catherine Glenn Foster, the president & CEO of Americans United Life, argued in an interview with the Newshour last fall that disparities in access are tied to the fact that abortion is a profit-making venture: “There are large parts of the country that don’t have a lot of people, and those are places where there aren’t many abortion facilities, but that’s a business decision.” She said she couldn’t think of “anything less feminist” than the “sentiment that we can’t have an education, career, plan for families without legalized abortion.” But reproductive rights organizations view the issue differently, and already see state-level challenges to abortion as a blow to the reproductive rights movement. “The likelihood of the Supreme Court going out of its way this year to overrule Roe vs. Wade is fairly low, but it can do the exact same thing in terms of an actual person’s ability to access abortion by making it harder and harder or impossible to challenge these laws,” Andrew Beck, a senior staff attorney for the Reproductive Freedom Project at American Civil Liberties Union, told the NewsHour. Guttmacher’s Nash said the increasingly conservative makeup of the Supreme Court could pose a serious challenge to abortion access in the coming years. “There is a real palpable threat to abortion rights at the Supreme Court,” said Nash. “It’s clear from Roberts’ opinion that he would support abortion restrictions.” Courtney Norris contributed reporting to this story. By — Courtney Vinopal Courtney Vinopal Courtney Vinopal is a general assignment reporter at the PBS NewsHour. @cglennvino
The Supreme Court decision to strike down a Louisiana law on June 29 that would have restricted access to abortion in the state was broadly seen as a win for the reproductive rights movement. Some scholars and activists caution, however, that the narrow decision does not necessarily signal abortion rights will be protected by the high court in future cases. In a surprise 5-4 decision, the conservative Chief Justice John Roberts joined liberal justices in striking down the law, which would have required abortion providers in Louisiana to have admitting privileges to a hospital within 30 miles. If upheld, the law could have shut down all but one abortion clinic in the state. WATCH: What Supreme Court decision on Louisiana law means for U.S. abortion rights “I was sort of bracing for a defeat for the abortion providers, so in some respect, I was pleasantly surprised” by Roberts joining the liberal justices in the decision, said Melissa Murray, an NYU law professor specializing in family law, constitutional law, reproductive rights and justice. But, she warned, “I think it’s a much more muted victory than many perhaps appreciate. The chief justice is very clear that his views on abortion haven’t changed.” When Roberts served as an attorney in two consecutive Republican administrations — those of Presidents Ronald Reagan and George H.W. Bush — he helped author briefs arguing that Roe v. Wade, the landmark case that legalized abortion nationwide, was wrongly decided and should be overturned. But in his Senate confirmation hearing in 2005, he agreed that the case was settled law and said he would err toward respecting precedent. Here’s a look at the implications of the June 29 decision on June Medical Services LLC. v. Russo, and what it means for abortion rights and access in the U.S. going forward. Implications of the Supreme Court’s decision The Louisiana law blocked last week was the second so-called TRAP law — or Targeted Regulation Against Abortion Providers — to make its way to the Supreme Court within the last five years. It was the first time an abortion case was heard since President Donald Trump filled the high court’s vacancies by appointing two conservative justices, Brett Kavanaugh and Neil Gorsuch. The legal argument that TRAP laws hinge on is the idea that “abortion is in some ways bad for women,” according to Mary Ziegler, a law professor at Florida State University specializing in the legal history of reproduction and author of “Abortion in America: A Legal History from Roe to the Present.” Ziegler said the idea behind these laws is that if abortion clinics have more stringent requirements, women will have “better continuity of care.” “It’s part of this general argument that abortion, and abortion providers, are unsafe,” she said when speaking with the PBS NewsHour in February. Kathaleen Pittman, a clinic administrator at Hope Medical Group in Louisiana and a plaintiff in the the Supreme Court case, told the NewsHour in March that the state had tried everything to decimate access to abortion care. “The situation here is already dire and this law would be the last straw for most of the remaining clinics. We’re hopeful that the court will recognize how devastating this law would be for women in our state,” Pittman said in March. The Supreme Court did end up siding with the health clinic, largely because it had already ruled back in 2016 that a similar Texas rule requiring abortion providers to have hospital admitting privileges placed a “substantial obstacle in the path of women seeking an abortion,” constituting “an undue burden on abortion access.” Citing this precedent set in the 2016 case, Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts sided with the liberal justices in blocking the Louisiana regulation from taking effect, even though he had ruled against the Texas law while on the high court in 2016. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote, citing the Texas law that was struck down in 2016. 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.” Abortion opponents protested the Supreme Court’s decision. Kristen Waggoner, the general counsel and SVP of the Alliance Defending Freedom, which signed an amicus brief in support of the Louisiana law, likened reproductive rights advocates’ argument that hospital admitting privileges actually endanger women to “the fox guarding the hen house.” “We’re going to hold abortion to the same standard that we hold other doctors,” Waggoner told the NewsHour. “And I think the standard should be applied to protect women no matter where their feelings are on the abortion issue itself.” Louisiana’s Solicitor General, Elizabeth Murrill, who defended the law before the Supreme Court, also said that clinics such as the ones targeted in the June Medical Services case actually endanger women’s health. “Here we have a history of egregious health and safety violations by the clinics and by the doctors who work there,” Murrill said in an interview with the NewsHour when the Supreme Court heard arguments for the case in March. She added that abortion providers had a vested interest “in being less regulated and having less oversight.” While complications do arise from abortion in the U.S., severe consequences, such as death, are rare. A report released by the non-partisan National Academies of Sciences, Engineering and Medicine in 2018 found that abortion is largely a safe procedure. It noted, though, that TRAP laws and other regulations instituted by states — such as waiting periods and pre-abortion ultrasounds — can complicate and delay the procedure, making it less safe. Even though another law targeting abortion has been struck down by the court for now, NYU Law’s Murray cautioned that the narrow nature of Roberts’ opinion could actually galvanize anti-abortion activists to pursue more restrictive laws in the future. This is because he cited another 1992 abortion case, Casey v. Planned Parenthood, in his reasoning. Murray noted that while the Casey decision affirmed the right to an abortion, it also lowered the standards by which courts review abortion legislation, and allowed states to put in place “regulations to further the health or safety of a woman seeking an abortion,” as long they do not impose an “undue burden” on a woman’s ability to obtain the procedure. While the decision was a nominal victory for the anti-abortion side, Murray said it actually empowered states to continue restricting access to the procedure. She worries the same could happen following the June v. Russo decision. In his opinion, Roberts wrote, “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” He encouraged courts not to weigh the specific benefits against the burdens of abortion laws, as the 2016 Supreme Court decision on the Texas law did, but rather to simply decide whether the proposed legislation poses an obstacle to women who are seeking abortions. Murray called this a “more amorphous” standard. “In reinstating the Casey standard, he’s gutted Whole Woman’s Health,” she said. “We’re back to 1992. And I think what you will see is states empowered to continue restricting access, and courts no longer tethered to weighing benefits” against the burdens of abortion laws like the Louisiana one, she added. The ADF’s Waggoner, though, said she saw Roberts’ line of decision-making as a positive step for the anti-abortion movement, as it may allow states “to regulate abortion providers in a way that protects women as long as there’s a reasonable relation to a legitimate state interest.” How other laws are affecting access to abortion right now While one Louisiana abortion restriction has been settled for now, the issue is by no means going away. There are some 15 abortion cases that are just one step away from making it to the Supreme Court, according to Planned Parenthood. While some of the restrictions in question are similar to the Louisiana law, many others ban abortion at various points in pregnancy, or on the basis of disability. Others ban specific types of abortion, such as dialation and evacuation. These laws are part of a broader strategy by the anti-abortion movement to pursue a patchwork of legislation that gradually chips away at abortion access in the hopes of eventually overturning Roe v. Wade. As of July 1, 22 states had banned abortion between 13 and 24 weeks from a woman’s last menstrual period, according to the Guttmacher Institute, a research institution that advocates for abortion rights. Three states — Alabama, Louisiana and Utah — had attempted to ban abortion at any point in a pregnancy, but those bills were blocked by the courts. In mid-June, Tennessee lawmakers passed a bill that would ban abortions after a fetal heartbeat is detected, as early as six weeks into a pregnancy. The Iowa legislature passed a bill that same week that would require women to wait 24 hours before receiving an abortion, and Mississippi Governor Tate Reeves signed a law banning abortion based on race, sex or genetic issues on July 1. Some states more recently tried to limit abortions due to the COVID-19 pandemic, with Texas, for example, declaring that abortion doesn’t qualify as an essential surgery. While those bans are no longer in play today — they have been blocked by the courts — some could return as states respond to another spike in coronavirus cases. The Guttmacher Institute’s state policy director, Elizabeth Nash, said that she would not be surprised to see states emboldened by the June Medical Services decision pursuing more restrictions similar to the Louisiana law, with the thinking that the courts will be less stringent in weighing the benefits against the burdens of such requirements. “Abortion opponents read these cases very carefully and amend their strategy based on the rulings,” Nash told the PBS Newshour. “It would not surprise me to see abortion restrictions next year that look to these kind of restrictions. You may see states that have, say, counseling and waiting period laws look to make them more burdensome in some way.” Laws targeting abortion providers have affected access to clinics over the past decade. Between 2011 and 2017 the number of abortion clinics in the U.S. dropped by almost 4 percent, but states in the South were more heavily impacted, with a net decline of 50 clinics — 25 in Texas alone. The Midwest lost a net 33 clinics in the same time period. Both regions had the largest share of new abortion restrictions in the country. Catherine Glenn Foster, the president & CEO of Americans United Life, argued in an interview with the Newshour last fall that disparities in access are tied to the fact that abortion is a profit-making venture: “There are large parts of the country that don’t have a lot of people, and those are places where there aren’t many abortion facilities, but that’s a business decision.” She said she couldn’t think of “anything less feminist” than the “sentiment that we can’t have an education, career, plan for families without legalized abortion.” But reproductive rights organizations view the issue differently, and already see state-level challenges to abortion as a blow to the reproductive rights movement. “The likelihood of the Supreme Court going out of its way this year to overrule Roe vs. Wade is fairly low, but it can do the exact same thing in terms of an actual person’s ability to access abortion by making it harder and harder or impossible to challenge these laws,” Andrew Beck, a senior staff attorney for the Reproductive Freedom Project at American Civil Liberties Union, told the NewsHour. Guttmacher’s Nash said the increasingly conservative makeup of the Supreme Court could pose a serious challenge to abortion access in the coming years. “There is a real palpable threat to abortion rights at the Supreme Court,” said Nash. “It’s clear from Roberts’ opinion that he would support abortion restrictions.” Courtney Norris contributed reporting to this story.