June Medical Services v. Russo could force patients to go to court to fight for an abortion.
Kelley found out she was pregnant in 2014, her senior year of college.
“I did not see it coming,” she said. “I thought I was doing everything right.”
When Kelley, who asked that her full name not be used, decided to get an abortion, she didn’t face a lot of the obstacles that many Americans encounter when trying to terminate a pregnancy. While abortion restrictions have shut down clinics across the South and Midwest in the last 10 years, forcing some people to travel hundreds of miles for the procedure, Kelley lived in Connecticut, where abortion remains relatively accessible.
She went to her school’s health center, was referred to an abortion clinic, and got a medication abortion.
“Within 36 hours, about, I was sitting for a final at college,” she told Vox. In many ways, she said, the experience was quick and easy.
What wasn’t easy was dealing with the stigma. “I was so deeply afraid of people thinking I had poor judgment,” she said. “There were family members that I did not tell for four years.”
The stigma Kelley felt, even in a state where many hold progressive views on abortion, can be even more intense in places where the procedure is highly restricted. Heather, who asked to be identified by her first name, got an abortion in Louisiana in 2016. “The way it is down there, it’s like you have to have had a crime committed against you for you to even have a footing to say that this is something that you need, and even then they won’t believe you,” she told Vox.
The judgment that people can feel after terminating a pregnancy is already a personal problem for many — and thanks to a case before the Supreme Court, it could become a big obstacle to challenging abortion laws. On Wednesday, the Court will hear oral arguments in June Medical Services v. Russo, a challenge to a Louisiana law requiring that abortion doctors have admitting privileges at a local hospital. If the Court upholds the law, two of the three remaining clinics in Louisiana could close, and abortion-rights advocates fear that more around the country could follow. But at the same time, the Court will also consider another issue that advocates on both sides believe is equally consequential: who is allowed to challenge an abortion law in court in the first place.
As with most high-profile abortion cases in recent years, the main plaintiff in June Medical Services v. Russo is an abortion clinic. But the state of Louisiana, and many anti-abortion groups, argue that clinics and doctors shouldn’t be allowed to bring abortion cases to court; they say only patients themselves should be able to do so. They argue that abortion clinics don’t actually have their patients’ best interests at heart and shouldn’t be allowed to sue in cases that affect them.
If the Court agrees, abortion laws around the country would likely become much harder to challenge because patients like Kelley would have to come forward to challenge them. That would mean participating in a lengthy court battle, taking time off work or school, and finding care for any children they may already have, potentially while still pregnant. And it would mean testifying in court about something they may not be comfortable even sharing with friends and family: having an unintended pregnancy and seeking to end it.
For patients, “to think that this is just something you can add to their to-do list in such a deep and raw moment in their lives is willfully being ignorant about the emotional gravity of choosing to end a pregnancy,” Kelley said.
A decision coming from the Supreme Court could force pregnant people to go to court to challenge abortion laws
There are several issues at play in June Medical Services v. Russo. The one that has received the most attention so far is relatively simple: the question of whether the state of Louisiana has the right to enact an admitting-privileges law, or whether that law violates Americans’ right to an abortion as set forth in Roe v. Wade and elsewhere.
But on Wednesday, the court will also consider a doctrine called “third-party standing.” As Vox’s Ian Millhiser explains, in order to challenge a law in federal court, plaintiffs have to show that the law affects their own “legal rights and interests.” Since the right to an abortion belongs to pregnant people seeking the procedure, ordinarily they would have to be the ones to bring suit.
But under the doctrine of third-party standing, a third party can also bring a suit if that party has a close relationship to the people directly affected and if those people might have a hard time bringing a suit on their own.
Since 1976, the Court has allowed abortion providers to challenge abortion laws under this doctrine. The argument is that they have a close relationship with their patients, and it’s not easy for patients to sue while they are dealing with an unintended pregnancy.
Many of the most famous abortion cases to reach the Supreme Court in the last few decades have been the result of providers challenging state abortion laws. In Whole Woman’s Health v. Hellerstedt, for example, five Texas clinics and three doctors challenged an admitting-privileges law in their state similar to the one now at issue in Louisiana. In 2016, the Court decided in their favor, striking down the Texas law and leading to a slowdown (though not a halt) of similar laws around the country.
But now, the state of Louisiana and anti-abortion groups are arguing that doctors and clinics should not be allowed to bring suit on behalf of their patients.
Many abortion opponents argue that providers don’t actually have a close relationship with their patients, and that in fact that their interests are in conflict. “You have abortion providers challenging a law that protects patients’ health and safety, and the law specifically is trying to protect patients from incompetence or substandard care from those very abortion providers,” Denise Harle, senior counsel for the Center for Life at the Alliance Defending Freedom, an anti-abortion group that has filed an amicus brief on behalf of Louisiana state legislators in June Medical Services.
“Would Ford Motor Company be able to come into court, supposedly on behalf of its consumers, and challenge a law that requires certain safety regulations on vehicles?” she asked.
But abortion doctors argue that laws requiring doctors to have admitting privileges at hospitals don’t actually benefit patient health and safety at all and are merely an attempt to shut abortion clinics down. They point out that serious complications from abortion are extremely rare, and in the unlikely case that someone does have to go to a hospital, they can be treated there regardless of whether the doctor who performed the original abortion has admitting privileges. And those privileges can be very difficult for doctors to get; after a law requiring them passed in Texas, more than half the clinics in the state ended up closing.
Meanwhile, many doctors and abortion-rights advocates say it makes sense that providers should be able to challenge abortion laws on behalf of their patients. “I do truly believe that patients are experts in their own lives,” Dr. Colleen McNicholas, chief medical officer of Planned Parenthood of the St. Louis Region and Southwest Missouri, told Vox, “but those of us who provide the care have the privilege of knowing thousands and thousands of stories, and how each of these regulations can impact, down to the nuanced level, these individual patients’ lives.”
Getting an abortion in America is hard. Going to court to demand one could be even harder.
Meanwhile, abortion-rights advocates say that patients seeking abortions are in a uniquely difficult position when it comes to challenging abortion laws in court. First of all, there are logistical concerns. The majority of Americans who seek abortions are low-income and already have at least one child. That can make getting an abortion difficult, especially in states where clinics are scarce, because they have to pay for transportation and sometimes lodging, as well as arrange care for their children. A 2014 study of patients at a variety of clinics around the country found that for more than half of them, the cost of an abortion and the travel involved were more than a third of their monthly income.
And suing to challenge an abortion law in court is far more complex and time-consuming than actually getting the procedure. Patients would have to show that they were personally impacted by the law — meaning they wanted an abortion but could not get one because of the restriction. And being part of a legal case would be a huge undertaking for many.
Groups like the Center for Reproductive Rights and the American Civil Liberties Union would certainly help, likely offering pro bono representation to patients as they have for providers in the past. But patients would still have to endure the disruption in their lives that a court case would entail.
McNicholas has been to court countless times to challenge restrictions on the clinic where she works, which is the last remaining abortion clinic in Missouri. She says that for patients, being a plaintiff would probably involve multiple days of preparation, an interrogation by lawyers for the state seeking to uphold the restriction, hours to review documents with lawyers, and then many more days off of work to be present at a trial.
For the many people seeking abortions in America who live below or near the poverty line, “that just is not economically sustainable,” she said.
Then there’s the time factor. Someone seeking an abortion would likely have to be willing to go through at least some portion of a legal case while still pregnant, knowing that abortions become more costly and difficult to obtain the later they happen. It’s not clear if the case would be thrown out if the patient was able to obtain an abortion elsewhere — for example, in another state that didn’t have those restrictions. But regardless of the legal specifics, any plaintiff would be faced with the time commitments of a legal case, potentially while still trying to find a way to get an abortion.
The stigma of seeking an abortion could keep patients from going to court
And then there’s the enormous stigma that still attaches to abortion in this country. For Kelley, it manifested as the feeling that she had lost a version of herself. “It felt like mourning,” she said. “I was mourning my old self, my old self who had a lot going for her, who was good, and all of these things that I thought I had simply lost by having an unplanned pregnancy.”
For others, the stigma shows up in other ways. Heather remembers that the day before she was scheduled to get her abortion, the issue came up in the 2016 presidential debates. She had to stay away from social media because “everybody and their mama had an opinion on the shit that I had to go do,” she said.
She told a few close friends about her abortion, but she didn’t tell her parents until she moved away from Louisiana a few years later. Her mother, at the time, was posting on Facebook in praise of Louisiana’s recently passed six-week ban on abortion (the ban is not in effect, pending a court challenge).
“I can’t sit by and watch you guys be like, ‘oh, thank you Jesus, you guys are saving so many babies,’ and not say something about how it’s affecting me directly,” she remembers thinking.
So she sent her parents a text telling them about her abortion. “They didn’t say anything,” she said. “It was like it never happened.”
Meanwhile, a recent study of people who shared their abortion stories, conducted by the research group Advancing New Standards in Reproductive Health (ANSIRH), found that 60 percent experienced harassment or another negative consequence after talking about the procedure, with 48 percent being called offensive names and 14 percent receiving death threats.
“I have been told several times online that abortion is wrong, no matter what, even if your life is at risk, and that I deserved to die for what I had done, and if I had died because I chose to continue my pregnancies, then that would have been God’s will,” one study participant told researchers.
“I had a friend that I thought was a friend,” another said. “He found out about my story and called me a lot of names. The thing that upset me most was that he said my mother should have aborted me.”
In response to concerns about stigma, Harle of the Alliance Defending Freedom said that courts often keep parties to a case anonymous, as in trials involving abuse of minors. Indeed, the plaintiff in Roe v. Wade brought her suit anonymously, under the name Jane Roe. Her true identity was not widely known for many years, Mary Ziegler, a law professor at Florida State University who studies the history of the abortion debate, told Vox. But that was in 1973. “People can do a lot more sleuthing with the internet and social media than they probably would have” at that time, Ziegler said. “I’d be more worried about it now in terms of keeping people’s identities confidential than I would have been at the time.”
And even if anonymity is maintained, the patient would still have to testify in court — and answer questions from opposing lawyers — about something that many people are afraid to disclose even to their families.
“Why do we expect this out of people who are in such a raw moment in their lives?” Kelley asks. “It’s mind-boggling.”
The logistical barriers and fear of stigma could stop people from coming forward to challenge abortion laws. In general, “it’s hard to know exactly how onerous it would be to bring these suits, just because it would be so different from what it’s been for decades,” Ziegler said. But getting rid of third-party standing would likely “add a layer of difficulty for groups like the ACLU or Planned Parenthood to basically find people who are willing to challenge these laws, and then to try to do right by them.”
That added difficulty could mean more abortion restrictions stay on the books — even if they are potentially unconstitutional. In turn, abortion could become harder and harder to access, especially for low-income people in the South and Midwest who already struggle to get the procedure.
No one knows what the Court will decide after it hears oral arguments in June Medical Services this week. But it’s clear that the future of abortion law in America hangs in the balance. And depending on what the Court decides, more people could have to fight a public battle for what remains, for many, an intensely private decision.
Today, Heather is open about her abortion. She works as an artist and lives in a blue state where “I’m not worried about my neighbors coming and harassing me,” she said.
“I’m not trying to be somebody who’s up there spreading a message,” she said, but “there’s a lot of women who aren’t in a position where they can speak about their experiences and I am.”
Still, when asked about whether she would go to court to challenge an abortion law, Heather says, “Even me, I wouldn’t be able to do it.”
Author: Anna North