December 30, 2019
Abortion is a constitutional right. But unfortunately, it comes with an asterisk.
Access to abortion was recognized as a constitutional right in Roe v. Wade and Planned Parenthood v. Casey, where the Supreme Court of the United States specified the limitations that can be imposed on women seeking abortions. Restrictions on abortion access are considered unconstitutional when they create an undue burden on women’s access to reproductive healthcare. While that test has floated around for years, the Court defined it more clearly in Whole Women’s Health v. Hellerstedt in 2016. An undue burden looks like arbitrary or unhelpful requirements placed as obstacles in the way of safe and reliable abortion access. The state of Texas forced physicians to get admitting privileges to local hospitals. This might sound harmless, but the policy permitted hospitals to essentially snub abortion providers and deny admitting privileges, thus disqualifying physicians from being able to perform abortions. This policy left only one clinic in the entire state – a drastic blow to securing abortion access. The Supreme Court struck down the law and held that this is what an undue burden looks like; a restriction with no relationship to women’s health, only creating huge logistical obstacles between them and their reproductive health.
So, why the history lesson? Because history repeats itself.
This year, the Supreme Court agreed to hear its first abortion case since Justice Kennedy’s retirement and a new conservative makeup of the Court has come into creation – June Medical Services, LLC v. Gee. Surprisingly, this case doesn’t come from the abundance of abortion bans that swept through the states earlier this year. But it looks too familiar for comfort.
The case started in 2014 when Louisiana passed the Unsafe Abortion Protection Act – better known as Act 620. It requires that every physician performing abortions has admitting privileges at hospitals within 30 miles – nearly the exact same restriction imposed in Texas. At trial, the District Court struck down the restriction and held that it constituted an undue burden on women’s access to abortion, just like the law in Whole Women’s Health. Act 620 would profoundly impact poor, rural, and low-income women across Louisiana, especially black women who, due to Louisiana’s history of structural racism, are deeply affected by poverty. The law itself doesn’t offer any health benefits to the women it affects – rather, the court said that “the burdens of Act 620 would fall most heavily on low-income women in the state, one of the poorest in the country.” The decision also said that “the vast majority of women who undergo abortions in Louisiana are poor” and that “42% of women having abortions in the U.S. in 2008 subsisted at or below the federal poverty line.”
The court also highlighted that when access to abortion is restricted, women turn to dangerous methods when their desperation turns to motivation. “Women without financial resources are at the greatest risk” of seeking unsafe or self-induced abortions. Those acts come with significantly higher risks of death and complications for women whose access is cut off and are forced to resort to risking their life to end a pregnancy. Women in these situations, the court said, “must choose between paying for an abortion and paying for other basic necessities” – and when they lack a meaningful choice over their reproductive lives, the results can be deadly or disastrous.
Despite all of this, history repeats itself. In January 2019, after Louisiana appealed, the United States Court of Appeals for the Fifth Circuit upheld Act 620 and said that this restriction doesn’t present an undue burden. It said it was constitutional. And it said it should go into effect.
The Court of Appeals ignored the widespread damage its decision will cause. The court acknowledged that it will hit hardest on low-income and marginalized women in Louisiana, but still claimed that the effects will be different than they were in Texas. It ignored that in both cases, the proposed restriction would shutter all but one abortion clinic for the entire state. It promoted interstate travel for women deprived of meaningful abortion access – a costly logistic for women already lacking resources or financial stability. It ignored that in Whole Women’s Health, the Court specifically noted that by encouraging women to cross Texas’s borders to access clinics in other states, Texas officials were conceding that the restriction was not crucial to promoting women’s health and safety. In June Medical Services, the Court of Appeals said that the worst-case scenario would see Act 620 affecting up to 30% of all women living in Louisiana, pushing them across state borders to try and access reliable and safe abortions – and this, according to the court, isn’t an undue burden.
When deprived of access to abortion, women face higher risks to their own health, wellness, and financial agency. And when talking about survivors of domestic violence, the consequences can spiral out of control. Women already fighting to maintain control over their lives will lack the finances to afford a road trip to Mississippi, Arkansas, or Texas. To afford the cost of an abortion out-of-pocket if they rely on welfare support and state health insurance programs. To grapple with more obstacles and boundaries between themselves and the future they are trying to plan.
History repeats itself. This isn’t a dystopian prediction. These are the real consequences when women are deprived of crucial and meaningful access to abortion procedures and the choice over their own reproductive health.
In 2012, the average cost of an abortion in the first trimester was about $400. One study broadly asked women how they would afford a $400 emergency in their lives. The answers were bleak – half of women responded that they would borrow or sell something to cover the cost. Or, some answered that they’d simply be unable to come up with the money. When we keep increasing the costs of abortion, we make sure that more women turn to desperate measures to secure control over their reproductive health and their own lives.
If the Supreme Court chooses to refute its own precedent and undo the progress gained in Whole Women’s Health, the impact will be devastating for poor and rural women in Louisiana. It will hurt women already lacking support and choices in their own lives. Obstacles between survivors of domestic violence and abortion access often always involve economic consequences at a terrible price. And the most profound destruction will harm the lives of women of color, survivors of domestic violence, and other populations already struggling to find stability in tumultuous experiences. History repeats itself. Let’s make sure we’re on the right side of it again.
Rachel Levy is a law student at Villanova University Charles Widger School of Law, graduating in May of 2021. She is interested in women’s rights advocacy and securing access to reproductive rights. She hopes to work as a civil rights litigator to promote women’s equality and defend against gender violence.