On March 4, the Supreme Court will hear oral arguments in June Medical Services v. Russo (formerly v. Gee), a case about an anti-abortion Louisiana law that could result in the closure of clinics in the state. Louisiana’s arguments for the law, as well as some media coverage about it, advance several myths about abortion that circulate among right-wing media outlets and abortion opponents.
The Louisiana law requires abortion providers to have admitting privileges at nearby hospitals, just like the Texas law the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt in 2016. Speculation abounds about why the court would choose to hear this case that it seemingly already decided only four years ago, but many point to the change in the composition of the court. President Donald Trump’s picks, Justices Neil Gorsuch and Brett Kavanaugh, were not on the bench during Whole Woman’s Health and could now likely make up a majority that would uphold the admitting privileges law.
MYTH: Admitting privileges laws are necessary to protect the safety of patients seeking abortions
In Louisiana’s brief to the Supreme Court, the state argued, “Louisiana has developed a system of licensing requirements and other laws intended to protect the health and safety of women seeking abortions. … In the 2014 Legislative Session, the state legislature enacted Act 620, which improves abortion safety by means of doctor credentialing.” Louisiana claimed that testimony about the bill showed that “Louisiana abortion clinics have a long, disturbing history of serious health and safety problems, among other failures of legal compliance,” that “the process for obtaining admitting privileges serves to vet physician competency,” and that “competent abortion providers would be able to obtain privileges.”
Louisiana’s long and sordid history of dirty and dangerous abortion clinics being shuttered one by one in order to protect women from fly-by-night abortionists should tell the Court all it needs to know, both about the legal benefits of this law and the dubious right of abortionists to sue to overturn laws designed to protect their own patients.
Americans United for Life is confident that the justices will vote to uphold Louisiana’s common-sense safety measure and allow Louisiana to protect women from substandard abortion doctors.
FACT: Abortion is an extremely safe procedure and admitting privileges are not medically necessary
Contrary to Louisiana’s argument, Louisiana law “confers no health or safety benefit beyond existing law,” as explained in June Medical Services’ brief. The clinic and its providers point to the district court’s findings that “abortion in Louisiana … is extremely safe, and there is no example of any instance in which admitting privileges would have avoided a negative health outcome or resulted in better treatment.” As June Medical Services explained, the district found that “for instance, Hope clinic, ‘which serves in excess of 3,000 patients per year, had only four patients who required transfer to a hospital for treatment’ in ‘the last 23 years’” and “‘regardless of whether the physician had admitting privileges, the patient received appropriate care.’”
Similarly, a bevy of national medical groups -- including the American Medical Association and the American College of Obstetricians and Gynecologists -- argued in an amicus brief filed on behalf of June Medical Services that “abortion remains extremely safe” and “state regulation of abortion clinicians through admitting privileges requirements is not medically necessary.”
The Lawyering Project’s Stephanie Toti, who argued in 2014 on behalf of the Texas clinic at the center of Whole Woman’s Health, wrote for Time magazine:
Doctors may be denied admitting privileges for a host of reasons unrelated to the quality of care they provide. According to the Society of Hospital Medicine, hospitals often condition admitting privileges on a doctor’s ability to admit a certain number of patients each year. Doctors specializing in abortion care cannot meet such admission targets because abortion patients rarely require hospitalization. Hospitals may also deny admitting privileges for business reasons, excluding physicians who work in places that the hospital views as competitors, or whose medical practices are unlikely to bring financial benefit to the hospital. Some hospitals are simply unwilling to have an abortion provider on staff.
Sarah CM Roberts, an associate professor in the Department of Obstetrics, Gynecology, and Reproductive Sciences at the University of California, San Francisco, explained for Newsweek that “the fact is admitting privileges laws ultimately harm women” because they “make no difference in patient safety, but hamper a woman's ability to get an abortion.” Louisiana’s law, for example, “would result in the closure of abortion clinics, leaving only one clinic to serve the entire state and forcing the majority of Louisiana women to travel more than 150 miles for abortion care.” This is in addition to the myriad other restrictions and forced delays on abortion in Louisiana that already make it difficult to access care.
MYTH: This law and its impacts are substantially different from the Texas law the Supreme Court struck down in Whole Woman’s Health
In an attempt to concoct a justification for why the court would uphold the Louisiana law in June Medical Services even though it overturned the Texas law in Whole Woman’s Health, Louisiana argued, among other things, that the Louisiana law “imposes far fewer obligations on abortion clinics and doctors” than the Texas law did. In June Medical Services, the Fifth Circuit upheld the law due, in part, to what the court called “stark differences between the record” in the Louisiana law as opposed to the law at issue in Whole Woman’s Health, including a claim that Louisiana abortion providers would not have trouble getting admitting privileges at hospitals there. The Fifth Circuit wrote:
Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually. Few Louisiana hospitals make that demand. Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act. In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana. Unlike the record in Louisiana, the record in Texas reflected no benefits from the legislation. Finally, because of the closures, the remaining Texas clinics would have been overwhelmed, burdening every woman seeking an abortion. In Louisiana, however, the cessation of one doctor’s practice will affect, at most, only 30% of women, and even then not substantially.
Anti-abortion organization the Charlotte Lozier Institute promoted this myth, as well, writing that “in terms of real-world consequences, the Louisiana case and the Texas case are very different,” claiming that there are “five key factual differences between” Whole Woman’s Health and June Medical Services “as set out by the Fifth Circuit.”
FACT: There is no reason for the Supreme Court to differentiate between the Louisiana and Texas laws
The Fifth Circuit did find that Act 620 would not cause any Louisiana clinics to close, but June Medical Services explained in its brief that the court “arrive[d] at that conclusion only by ignoring the district court’s factual findings, which were not clearly erroneous.” According to the brief:
The district court also found that the burdens of Act 620 were, if anything, greater than those of the Texas law in Whole Woman’s Health. The court determined that, while the Texas law resulted in closure of about half of that state’s clinics, Act 620 would result in the closure of two of Louisiana's three clinics, with only one physician left to provide abortion care in the whole state. And the burden on Louisiana women was magnified, the court found, because, for various reasons, women in Louisiana already face especially high barriers to obtaining abortion care.
As The Washington Post’s Robert Barnes noted, dissenting judges on the 5th Circuit “said their colleagues seemed more intent on giving the Supreme Court a chance to reverse its 2016 ruling than complying with” the court’s ruling in Whole Woman’s Health. In addition, as The New York Times editorial board laid out, “the Louisiana and Texas laws are more or less identical,” and “Louisiana lawmakers copied the Texas legislation after seeing how effective it was at closing clinics.” The editorial board further explained that while the laws are the same, the states are different, but the differences would only worsen the impact in Louisiana:
Lawyers representing Louisiana argue that their law should be considered separately from Texas’ because the two states are fundamentally different. There they have a point — there are relevant differences between Texas and Louisiana. For instance, Louisiana has fewer abortion clinics per capita than its neighbor to the west and higher rates of women living in poverty. As a result, the law would have an even more severe impact in Louisiana than it did in Texas.
In fact, the law could prevent some 70 percent of women in Louisiana from being able to get an abortion in the state. A Federal District Court found as much in an exhaustive 2017 decision that permanently blocked the Louisiana law.
MYTH: The Supreme Court should not allow providers to sue on behalf of patients because they have contrary interests
Louisiana also argued that the court should revisit the idea of third-party standing for abortion cases, which allows abortion clinics and providers to sue on behalf of patients or potential patients. The state claimed third-party standing should not be allowed because “the relationship between Plaintiffs [June Medical and its providers] and their patients is not only attenuated, but also riven with conflicts.” Louisiana alleged that patients care most about their safety while June Medical Services prioritizes finances:
Abortion providers and their patients have an obvious conflict in the inevitable tradeoff between cost and safety. Women have an interest in ensuring their own health and safety when they choose to obtain an abortion.
But Plaintiffs’ interest is to reduce compliance costs and government oversight while providing as many abortions as possible. … Plaintiffs seek to deny their patients the standard of care other Louisiana surgical patients are guaranteed by law.
Right-wing media have frequently attacked abortion providers as “evil,” claiming they perform abortions purely for financial gain, with absolutely no consideration for their patients. Right-wing outlets have made the same claim with respect to this case. National Review senior editor Ramesh Ponnuru speculated for Bloomberg News that the Supreme Court might “rule that abortion clinics don’t have standing to speak for their prospective future patients in court, especially since the clinics are fighting regulations that might help those patients.” An anti-abortion advocate objected in The Federalist to the use of third-party standing by “the very people who make their money performing abortions.” The Daily Signal wrote that the “law was designed to protect women from the life-threatening incompetence of the very doctors who are trying to invalidate the law.”
The Federalist’s Margot Cleveland argued that June Medical Services might “expose the abortion industry as a self-interested player putting women’s health at risk under the false flag of Roe v. Wade”:
Should Louisiana convince a majority of the Supreme Court that this assumption [of third party standing] cannot stand, the legal ramifications would be huge. No longer could the abortion lobby march from the capital to the courthouse with a parade of horribles in tow. Instead, actual women alleging a real constitutional injury would need to pursue the litigation. And it will be more difficult for individual plaintiffs to hide behind the rhetoric of hardship that abortion providers bandy about.
The political risk is even greater because Louisiana’s argument exposes the dark underbelly of the abortion industry.
FACT: Providers have the interests of their patients at heart and allowing them to sue on their behalf can help patients
June Medical Services argued that Louisiana providers do indeed have the interest of their patients at heart, noting that the record in the case thus far “emphatically refutes the State’s attempt to portray Hope as a profit-driven enterprise with little interest in patient safety. The State, for example, points to evidence of alleged safety deficiencies, but it fails to note that the district court rejected that evidence and found that Hope and its physicians had strong safety records.” In addition, “Hope also presented significant evidence that its doctors are driven by a desire to help women and that its patients respond with gratitude and positive feedback about their experiences.”
As professors David S. Cohen and Carole Joffee laid out for The Washington Post, the third-party standing issue in this case has “nothing to do with the constitutionality of abortion and everything to do with what the court thinks about abortion providers: Are they caring medical professionals, or are they craven opportunists?” This latter assertion, according to Cohen and Joffee, “is based on a nasty stereotype about abortion providers that is not supported by the evidence. Rather, many studies ... show that abortion providers are deeply concerned with making sure their patients are certain about the decision to have an abortion.”
The playbook goes like this: First, pass an admitting privileges law. That’s simple enough, given lobbyists typically write the bills. Once the law is passed, all politicians have to do is wait for antiabortion extremists to threaten hospitals with “negative publicity” and harassment if they grant privileges to abortion providers.
We watched this strategy play out in Texas. After admitting privileges passed, antiabortion extremists published a step-by-step guide outlining how to find out where abortion providers applied for privileges and then threaten that hospital with disruptive protests until they give in to their demands. (From the guide: “Graphic images are highly controversial but this could be an appropriate location to hold graphic images if the hospital refuses to take action.”)
Patients, as well, have a great interest in clinics and providers suing on their behalf. As Steph Herold, a researcher at Advancing New Standards in Reproductive Health, explained in The Hill, Louisiana’s argument “raises an unusual and pertinent question: is it reasonable to expect people seeking time-sensitive, stigmatized health care to drop everything and sue their state?” Herold detailed “an exploratory survey” she and her colleagues conducted that looked at “people across the United States who have shared their own abortion stories online, in legislatures, on panels, and through many other venues. Though many reported on the rewarding aspects of abortion storytelling, they also revealed the emotional toll of harassment and threats” from going public with their stories. Herold wrote:
Abortion storytellers reported especially hostile and aggressive harassment, including being called offensive names, receiving distressing images online, and even receiving death threats or threats to their physical safety.
Almost half of the abortion storytellers reported that this virulent harassment contributed to emotional stress, problems with friends and family members, or difficulties at work or school. Some storytellers were fired from their jobs as a result of being public about their abortion.
Considering the increased magnitude of scrutiny that a hypothetical abortion patient would encounter as a plaintiff in a court case, these accounts of harassment are enough to give anyone pause. It makes me wonder: How much vitriol and emotional abuse should we expect people to suffer for trying to protect their right to a safe and common health care procedure?
MYTH: Americans support restrictions on abortion like admitting privileges
Though the Supreme Court won’t publicly take into consideration voters support for laws like Louisiana’s, right-wing and anti-abortion media have linked a recent poll on admitting privileges laws with the case. The Washington Examiner framed a story about a poll by the Kaiser Family Foundation as showing “that the majority of voters support the kinds of abortion restrictions passed in Louisiana that are headed for a review by the Supreme Court — even after they are presented with arguments against the laws.” Live Action News said that the poll showed “once again ... that the vast majority of respondents overwhelmingly support heavy restrictions on abortion” like those at issue in June Medical Services.
FACT: Polling on abortion is complicated, and support for admitting privileges laws decreases with more information
Public opinion polling is a complicated process -- and polling on abortion is even more difficult. In particular, polling cannot reflect people’s actual opinions about abortion access when the questions don’t account for the intricacies and complications of the issue or the lived experiences of people who’ve had an abortion.
Right-wing media outlets and anti-abortion groups frequently exploit these weaknesses as a way to argue that the public supports anti-choice views. As Kaiser Family Foundation explained about its own poll:
The poll finds that the public can be swayed on many of these state actions with some changing their opinions after hearing counter-arguments.
Seven in ten (69%) originally support laws requiring abortions to only be performed by doctors who have hospital admitting privileges, but after supporters hear the argument that complications from abortions are rare and women who need treatment would be able to receive it, regardless of whether the abortion provider has admitting privileges, support drops to about half (52%).
Of note, the Washington Examiner’s write-up did acknowledge this further wrinkle on the poll, but dismissed it by saying that “the survey showed 76% of those who originally answered in the affirmative stuck with their position.” However, according to BuzzFeed News, “Asking people questions about what they think of specific abortion laws — common questions in some of the most cited polling by nonpartisan research organizations — often had little bearing on how those people actually felt about abortion itself, or on how they vote.” As Kaiser Family Foundation and others have explained, “the public overwhelmingly thinks that decisions about abortions should be made by women in consultation with their doctors (79%) rather than having lawmakers decide when abortions should be available and under what conditions (20%).”