Roe v. Wade isn’t safe

The Supreme Court just struck down an anti-abortion law. Here’s why access is still at risk.

At Hope Medical Group for Women, staff were taking care of patients when the decision came down.

The mood was one of “absolute giddiness” when they heard the news that the Supreme Court had ruled in their favor, clinic administrator Kathaleen Pittman said in a press conference Monday. Even though everyone was wearing masks due to the coronavirus pandemic, the excitement was palpable, with staff trying to calm down enough to get back to their work.

“It’s crazy times,” Pittman said. “It’s a wonderful, good thing.”

The Shreveport, Louisiana, clinic was at the center of June Medical Services v. Russo, a Supreme Court case that some saw as an opportunity for the new conservative majority to weaken — or even overrule — the landmark abortion decision Roe v. Wade. But instead, the Supreme Court on Monday struck down a state law that could have shuttered Hope, and dealt a major setback to abortion opponents around the country.

On the surface, the ruling seems like a clear victory for abortion rights advocates. It’s the second time in five years that the Court has struck down a law requiring abortion doctors to get admitting privileges at a local hospital. The ruling will likely make it much harder for states to pass — or defend — such laws in future.

But it doesn’t mean Roe v. Wade is safe in the long term. Nor does it mean that people around the country can actually get an abortion when they seek one.

Long before this year, abortion in America had become deeply stratified: accessible to those, often white, who have money and the ability to travel — and out of reach for those, often Black or Latinx, who do not. As Marcela Howell, president of In Our Own Voice: National Black Women’s Reproductive Justice Agenda, put it to Vox, “there are a large number of women who have never lived under Roe v. Wade.”

That stratification has only increased, for many, during the coronavirus pandemic, as states have moved to ban abortion by designating it a nonessential service. “Even though people in Louisiana are safe from this harmful law going into effect, the fight to secure abortion access for everyone in this country is far from over,” Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement Monday. “The recent attempt by policymakers to exploit the devastating Covid-19 pandemic to shut down abortion clinics — including in Louisiana — shows that reality.”

And while the Court’s decision Monday may make it more difficult to pass admitting privileges laws in future, it also leaves the door open for a more direct attack on Roe. The evidence of the past few months — and the years that came before — suggest that abortion rights advocates have a long road ahead of them.

“I’m celebrating today,” Pittman said in the Monday press conference, “but I’m still worried about our future.”

The Court’s decision harms communities already devastated by the pandemic, advocates say

Abortion opponents have been campaigning to restrict abortion since Roe v. Wade was decided (and in some cases, even before). In recent years, they’ve often backed restrictions on clinic operations, hoping that such restrictions will survive the inevitable legal challenges and potentially make it to the highest court in the land.

The latest case to do so was June Medical Services. Abortion opponents had described the Louisiana law at issue in the case, passed in 2014, as an effort to protect patients’ health. They argued that requiring doctors to have admitting privileges at a local hospital would help ensure patients’ continuity of care if they suffered complications after an abortion. They also said that requiring admitting privileges could be a way of ensuring that doctors were highly qualified.

Such concerns are even more important during the pandemic, some said. “Our world is in such crisis mode, we should be able to trust those who say that they’re on the front lines to take care of us,” Alexandra Seghers, director of education at Louisiana Right to Life, told Vox.

But abortion providers and abortion rights advocates argue that admitting privileges laws actually have no benefit for patients; they point out that patients can always get care at a hospital, whether or not the doctor who performed their abortion has admitting privileges there. Meanwhile, they note that it can be very difficult for abortion providers to get privileges — often, paradoxically, because so few of their patients are ever admitted to hospitals (fewer than 0.25 percent of patients have major complications after an abortion, according to one 2014 study). The result has been that in states with admitting privileges laws, clinics are forced to close — about half the clinics in Texas shut their doors after such a law was passed there.

For these reasons, the Supreme Court has been skeptical of admitting privileges laws in the past. In the landmark 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down the Texas law, finding that it did not offer a medical benefit to patients that was “sufficient to justify the burdens upon access” it imposed.

Abortion opponents had hoped that the 2020 Court, with the addition of Trump nominees Neil Gorsuch and Brett Kavanaugh, would reconsider. But ultimately, Chief Justice John Roberts joined with the Court’s liberals, arguing in a concurrence that the Louisiana law was functionally identical to the Texas law at issue in Whole Woman’s Health, and that the Court was thus bound by precedent to hand down the same decision. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” Roberts wrote. “Therefore Louisiana’s law cannot stand under our precedents.”

Though the ruling allows Hope and other clinics in Louisiana to stay open for now, some believe Roberts’s words signal an openness to a different, more direct challenge to abortion rights. As Vox’s Ian Millhiser writes, Roberts notes in his opinion that neither party in June Medical Services asked the Court to revisit Planned Parenthood v. Casey, a key 1992 abortion decision that established the standard for determining the constitutionality of abortion laws that’s still in use today. Under Casey, these laws are invalid if they impose an “undue burden” on a patient seeking an abortion. As Millhiser notes, Roberts’s reference to the 1992 case could be “a hint that, if future litigants directly attack Casey, Roberts will welcome such a challenge.”

The Center for Reproductive Rights is “concerned” about Roberts’s opinion, Julie Rikelman, an attorney for the Center for Reproductive Rights who argued the clinic’s case before the Supreme Court, said at the Monday press conference. “We think the opinion muddies the waters a bit and will lead to more litigation rather than less.”

While the June Medical Services decision may be the end of admitting privileges laws, state legislatures have passed numerous other restrictions in recent years, from mandatory ultrasound laws to so-called “heartbeat” bills that ban abortion as early as six weeks into pregnancy. Many see the six-week bans as so clearly in conflict with Roe — and so transparent an attempt to force a court challenge — that the Supreme Court is unlikely to take them up. “I don’t think that the heartbeat bans are likely to be taken by the court in the near future,” Rikelman said.

Nonetheless, there are many other abortion cases working their way up through the courts at the moment — including a challenge by Hope to a Louisiana law requiring a 72-hour waiting period for an abortion — that could give Roberts and others a chance to revisit Casey and Roe in the years to come.

“We will be back in court tomorrow and will continue to fight state by state, law by law to protect our constitutional right to abortion,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement Monday.

Abortion was out of reach for many people in America. Then the pandemic hit.

Supreme Court decision or not, the events of the past few months show that states already have broad leeway to chip away at abortion access, making Roe v. Wade, for many Americans, essentially meaningless.

When the Supreme Court heard oral arguments in June Medical Services v. Russo on March 4, abortion access in Louisiana was already hanging by a thread. With just three clinics in a state where about 10,000 people seek abortions every year, 45 percent of patients had to travel more than 50 miles to get to a clinic as of 2018. And since Louisiana law requires that patients have an ultrasound and then wait 24 hours before an abortion can be performed, people seeking abortions have to visit a clinic twice, multiplying the distance traveled and the cost of the procedure.

At Hope Medical Group for Women, the costs for an abortion and ultrasound start at $600. Abortion funds and other groups can offer financial assistance, but due to state and federal restrictions, the procedure typically isn’t covered by insurance. For the 70 to 85 percent of Hope patients who live at or below the poverty line, cost can be a major hardship.

And that was before the pandemic hit.

As states imposed lockdowns in March and April, many anti-abortion governors and other leaders moved to designate abortion as a nonessential medical procedure, effectively banning it during the pandemic. In Texas, for example, Gov. Greg Abbott on March 22 ordered all abortions postponed unless the life of the pregnant person was in danger. And on April 9, Louisiana Gov. John Bel Edwards announced that state Attorney General Jeff Landry would be investigating abortion clinics in the state to see if they were providing “non-emergency” procedures in violation of state lockdown rules.

“All instances of non-compliance with these important directives not only put patients and staff at risk, they also divert much needed Personal Protective Equipment away from the brave medical professionals currently treating Louisiana’s coronavirus patients,” Landry said in a statement at the time.

As a result of the investigations, Hope had to cancel abortion services for several days and turn patients away, Rikelman told Vox. Because of the pandemic, the clinic had already had to space out patient appointments and take other steps to maintain social distancing. “It was already extremely difficult for them to be providing care,” Rikelman said. “The fact that they had to stop services for a few days was terrible for patients.”

The Center for Reproductive Rights filed a lawsuit, and the group was ultimately able to resolve the case with the state so that abortions could continue. But that wasn’t the case everywhere — in Texas, for example, abortion providers fought the governor’s order in court until April 23, when it was lifted as part of a larger lifting of pandemic restrictions. During that time, patients had few options except to travel across state lines in the midst of a public health emergency to seek abortions — according to Planned Parenthood, clinics in neighboring states saw a 706 percent increase in patients from Texas between March 23 and April 14, compared with the entire month of February.

The pandemic bans were just part of a longstanding pattern in which states in the South and Midwest have made abortion more and more difficult to access, even as it remains technically legal, Rikelman said. Between 2011 and 2017, 83 clinics in those regions closed as increasingly stringent restrictions were passed, with half of the clinics in Ohio and Texas shutting their doors. “It’s really all part of the national coordinated strategy to push abortion out of reach,” Rikelman said.

Crucially, since 1976, the Hyde Amendment has blocked Medicaid coverage for most abortions, a ban that disproportionately impacts Black patients, who are more likely than white ones to get coverage through Medicaid. Lack of insurance coverage means patients often have to pay for abortion out of pocket, a serious financial hardship for many. “We know that people have sold things in their house,” Howell said. “They’ve borrowed money from their family.”

In recent years, states have added restrictions like mandatory counseling and waiting periods, pushing abortion further out of reach for many. Those laws mean “you have to travel somewhere, miss your work, get this counseling, come back home, and then go again,” Howell said, a process that’s deeply onerous for people in low-wage jobs and those caring for children. “There are all those kinds of barriers that are set up against women with low income accessing abortion,” Howell said.

And the pandemic and the economic crisis that came with it have made the barriers to abortion even higher for many low-income people.

“For our callers, expenses like groceries and rent are already difficult to obtain,” Cristina Parker, communications director at the Lilith Fund for Reproductive Equity, which funds abortions in Texas, told Vox in an email in April. “But with the added instability of our economy — and with so many losing their jobs virtually overnight — paying out of pocket for an abortion can be next to impossible.”

The pandemic left abortion rights advocates dealing with a new level of challenge. “When everything was shutting down, we were sending people out of state with frequency,” Elizabeth Gelvin, client and community coordinator at the New Orleans Abortion Fund, told Vox. “We were constantly having to track, is this Amtrak running? Is this bus running? Is it even safe to take a flight right now?”

Patients went to Florida, Georgia, Illinois, Gelvin said, with the longest trip over 900 miles — one way.

As abortion became harder to obtain in Louisiana this spring, “we started living in a version of the reality that we were fearing would happen come decision day,” Gelvin said. For instance, the fund started paying for and helping coordinate travel for patients, when it had previously funded only the abortion procedure itself.

“The kind of organizing, the deep rapport-building and trust-building between different funds and practical support network that’s come out of this pandemic, has made us stronger and more prepared for whatever comes on decision day.”

Now that day is here, and for now, patients and abortion rights advocates won’t have to face the closure of clinics in Louisiana. But the events of the past few months have both prepared activists for what comes next and offered a reminder of how uncertain access remains.

“We are incredibly relieved that the Court set Louisiana straight and that we can stay open,” Pittman said in a statement Monday. However, “Louisiana has more abortion restrictions than any other state, and every year they pass more. It’s a never-ending battle.”

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