Right to Choose—Death by a Thousand Cuts

Pictured: Person in sweatshirt holding up a black sign that says, “Girls just wanna have fundamental rights.” Photo by lucia on Unsplash

By Andy Ball

On June 28, two Louisiana doctors asked the Supreme Court of the United States to stay a law that would restrict access to abortions across the state.[1]  The law, known as The Unsafe Abortion Protection Act or Act 620, requires abortion providers to obtain admitting privileges at a hospital within thirty miles of their clinic.[2]  The challengers of the law argue that the requirement would essentially reduce the number of abortion clinics in the state to one.[3] Louisiana argues that the law is intended to “promote women’s health.”[4] However, Act 620 does not confer medical benefits that are sufficient to justify the burdens it imposes on individuals seeking to get an abortion; therefore, SCOTUS should find the Act to be unconstitutional.[5] 

This thirty-mile admitting privileges restriction contemplated in Act 620 is the same type of restriction found in the Texas law, HB2, at issue in Whole Women’s Health v. Hellerstedt; in that case, the Supreme Court found HB2 to be unconstitutional.[6] The Whole Women’s Health Court found that the law posed a substantial obstacle to individuals seeking abortions without actually advancing the governmental interest it is alleged to protect: the health and safety of those individuals.[7]

In June Medical Services, a three-judge panel of the Fifth Circuit reversed a district court decision that found Act 620 unlawful.[8] The Fifth Circuit found that the facts in June Medical Services are “remarkably different” from those in Whole Women’s Health and that Act 620 was unlikely to force any clinics to close.[9]  The court noted that in Texas, for a doctor to maintain admitting privileges at a hospital, he or she had to admit a minimum number of patients annually.[10] In Louisiana, no such requirement exists at hospitals; therefore, theoretically, it would be easier for a doctor to obtain admitting privileges.[11] However, the Fifth Circuit ignored the remarkable safety of abortions and the reality that requiring admitting privileges contributes nothing to that already existing safety.[12]

The full Fifth Circuit refused to rehear the case, and the doctors filed an emergency application to stay the law.[13] The Supreme Court initially responded to the doctors’ application on February 1, stating that the mandate of the Fifth Circuit is administratively stayed to give the Court more time to review filings regarding the application.[14]  Since that time, the Court has decided to extend the stay pending the timely filing and disposition of a petition for a writ of certiorari.[15]

While Louisiana believes this law protects individuals seeking abortions, the state ignores the potentially devastating consequences the closure of abortion clinics could have on low-income individuals who have to travel to receive reproductive health care.[16]  This result alarms reproductive health care advocates, considering that, in Louisiana, approximately 10,000 individuals seek to have the operation done annually.[17] In Whole Women’s Health, after the Fifth Circuit upheld HB2, all but eight out of forty clinics in the state of Texas closed.[18] Presumably, similar results would occur if June Medical Services stands.

The Louisiana legislature enacted the bill with the intent to “protect maternal health and the safety of the unborn.”[19] The Fifth Circuit found that Act 620 results in a potential increase of wait time for thirty percent of individuals seeking abortions.[20] Yet, the District Court found that should Act 620 be enforced, seventy percent of the individuals seeking an abortion would not be able to get one.[21] It concluded that the Act would likely prevent four doctors from performing abortions due to the admitting privileges requirement.[22]

Should the Supreme Court find the Act lawful, it will provide a roadmap for lower courts to restrict access to abortion and etch away at reproductive sovereignty and bodily autonomy.  However, doing so would neglect precedent because Act 620 does not confer medical benefits sufficient to outweigh the burdens it imposes on individuals seeking reproductive health care. With the new Court, it is unclear how it will turn out. For now, reproductive health advocates can find some reprieve as the Court decided to grant the doctor’s request to stay the law.[23] However, the fight for reproductive health is far from over, as the Court will likely hear a challenge of the law on its merits in the Court’s next term in October.[24]


[1] Emergency Application for Stay Pending the Filing and Disposition of a Petition for Writ of Certiorari, June Med. Services L.L.C. v. Gee, 2019 U.S. LEXIS 815, at *1 (2019).

[2] La. Stat. Ann. § 40:1061.10 (A)(2)(a) (2014).

[3] Emergency Application for Stay Pending the Filing and Disposition of a Petition for Writ of Certiorari, June Med. Services L.L.C. v. Gee, 2019 U.S. LEXIS 815, at *3 (2019).

[4] June Med. Servs., L.L.C. v. Gee, 905 F.3d 787, 805 (5th Cir. 2018).

[5] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2318 (2016).

[6] Id. at 2312-13.

[7] Id. at 2318.

[8] June Med. Servs., L.L.C. v. Gee, 905 F.3d 787, 790 (5th Cir. 2018).

[9] Id.

[10] Id.at 791

[11] Id

[12] Id. at 817-818.

[13] June Med. Servs., L.L.C. v. Gee, 905 F.3d 787, 810 (5th Cir. 2018).

[14] June Med. Servs., L.L.C. v. Gee, 2019 U.S. LEXIS 815, at *1 (2019).

[15] Id.

[16] June Med. Servs., 905 F.3d at 801. 

[17] Id. at 791.

[18] Id.

[19] Id. at 791-92.

[20] Id. at 827.

[21] Id.

[22] Id

[23] June Med. Servs., L.L.C. v. Gee, 2019 U.S. LEXIS 815, at *1 (2019).

[24] Adam Liptak, Supreme Court Blocks Louisiana Abortion Law, N.Y. Times (Feb. 7, 2019), https://www.nytimes.com/2019/02/07/us/politics/louisiana-abortion-law-supreme-court.html