June 27, 2020

Reproductive rights under attack, say advocates. Here’s what you can expect.

Alyssa Schukar/Center for Reproductive Rights

Abortion rights supporters organized by the Center for Reproductive Rights rally as the U.S. Supreme Court hears oral arguments in June Medical Services v. Russo on Wednesday, March 4, 2020 in Washington.

The U.S. Supreme Court is expected to make major reproductive health care decisions early next week.

Monday and Tuesday will be the final two days this term that the justices will issue opinions, according to the Supreme Court’s blog. Historically, the court has handed down decisions on abortion on the last day of the session, Nancy Northup, executive director of the Center for Reproductive Rights said last month. But in this case, the court has two reproductive health care decisions to rule upon in the final days of the session.

The two cases are June Medical Services LLC v. Russo and Trump v. Pennsylvania. June Medical Services operates Hope Clinic, an abortion provider in Shreveport, Louisiana, which, with help from the Center for Reproductive Rights, sued the Louisiana Department of Health and Hospital Interim Secretary Stephen Russo. Louisiana passed a law in 2014 that requires an abortion clinic to have admitting privileges with a hospital 30 miles from the clinic.

The Supreme Court heard a virtually identical case four years ago with Whole Women’s Health v. Hellerstedt. In that case, Texas had passed the same law and the court struck it down in 2016, saying that the law did not “confer medical benefit sufficient to justify the burdens upon access,” and that it placed “a substantial obstacle in the path of women seeking a previability abortion” and created an “undue burden on abortion access.”

Now the court must answer the same question—but it is a more conservative bench. President Donald Trump has appointed two new justices—Justice Brett Kavanaugh and Justice Neil Gorsuch — since the court heard the Texas case. Also, when the court decided Whole Women’s Health in 2016, Justice Antonin Scalia had already passed away and, since the Republican Senate  blocked President Barack Obama’s pick, Judge Merrick Garland, Scalia’s seat was still empty.

If the court overturns its own precedent, which it set four years ago, it would have a ripple effect across states, making it possible, as well as probable, that many state legislatures will enact similar laws, abortion rights advocates have said.

While New Mexico is not likely to be one of those states, Ellie Rushforth, reproductive rights attorney for American Civil Liberties Union of New Mexico, told NM Political Report that politicians could and do change. Rushforth said another outcome could be that since New Mexico would be one of what could be a handful of states that would continue to allow abortion access, anti-abortion groups could “turn their sights on New Mexico along with motivated and well-funded backers.”

“Rural and isolated places already suffer the most when abortion is restricted,” Rushforth said.

In addition, Planned Parenthood officials have said they believe women from other states would be forced to travel to New Mexico for an abortion.  

Related: With a health care crisis under way, New Mexico could be critical for abortion access

Another outcome could be what the Center for Reproductive Rights described last month as a split decision, where the court overturns the Louisiana admitting privileges law but agrees with Louisiana on third party standing – an issue that came up during the court battle.

Third party standing is a legal term that allows abortion providers to challenge laws that place a barrier for women seeking abortion. There are different ways the court could decide third party standing.

The state of Louisiana argued before the Supreme Court that the abortion provider should not be the one to bring the lawsuit, arguing that that represented a conflict of interest. If the court agrees with Louisiana on third party standing, it would mean an individual woman would have to sue a state every time she sought an abortion but faced obstacles due to what abortion rights groups call TRAP (Targeted Regulation of Abortion Providers) laws already in place.

Pursuing a lawsuit that could take three to four years when a pregnancy lasts for about nine months would place a level of burden on women that would make it virtually impossible for TRAP laws to be challenged in court,  Rushforth said.

Third party standing has had legal precedent in abortion law for nearly 50 years, Rushforth said. Rushforth said various organizations not related to reproductive rights, such as the Sierra Club, sue using third party standing because the nonprofit organization sues on behalf of its members.

Rushforth said if the court disregards precedent on third party standing and rules in favor of Louisiana on that portion of the suit, it could do so narrowly so that it would affect abortion providers only.

“I’m hopeful that the Supreme Court will listen to its own precedents. We work within a system that is built on the idea of respecting precedent,” Rushforth said.

Contraceptive care

The other reproductive healthcare lawsuit waiting for the court’s ruling is Trump v. Pennsylvania.  The Trump administration tried to expand exemptions for employers who opt out of allowing insurance coverage to include contraception, as mandated by the Affordable Care Act (ACA).

The exemptions originally allowed religious or religiously affiliated groups to opt out. The courts then expanded that to include for profit companies, like Hobby Lobby, whose owners have personal objections. But in 2017 Trump expanded the rule to allow essentially any company to stop providing contraceptive care through employer-based insurance coverage. Pennsylvania and New Jersey sued, and additionally alleged that the expansion is invalid because the Trump administration did not allow public comment before changing the rule. Another question the court faced during oral argument in May was whether the lower court had the right to place an injunction on the rule going into effect.

U.S. Solicitor General Noel Francisco, appointed by President George W. Bush, argued the case on behalf of the Trump administration. The federal government estimates that between 75,000 to 125,000 women will lose contraception coverage if the court agrees with Trump, Francisco confirmed during oral argument.

Many abortion rights advocates say that access to contraception reduces unintended pregnancies. In addition, removing access to contraception during a pandemic “would complicate health care needs at a time when people are already facing health crises and economic uncertainty due to shrinking incomes and rising unemployment,” Planned Parenthood of the Rocky Mountains said in a statement to NM Political Report.

“It is deeply concerning that, in 2020, this is still up for debate,” Planned Parenthood of the Rocky Mountains said in the statement. “Birth control is essential health care. It’s not controversial.”

Rushforth called it “another attack on reproductive rights and health care.”

If the court rules in favor of Trump in this case, Rushforth said it would not impact New Mexicans because the state passed a law in 2019 that protects women by ensuring continued insurance coverage of contraception, Rushforth said. The law, signed by Gov. Michelle Lujan Grisham, went into effect at the beginning of 2020.

But, Rushforth said it’s not a reason for state residents to breathe a sigh of relief.

“Whether the unintended consequences of codifying discrimination into federal law could have ripple effects into New Mexico, we can’t anticipate,” Rushforth said. “The good news is we have this state law that requires employers to provide coverage.”