Symposium: June Medical decision is no cause for congressional complacency

Richard Blumenthal is the senior United States senator from Connecticut. He joined an amicus brief on behalf of 197 members of Congress in support of the petitioners in June Medical Services v. Russo. He is the Senate lead sponsor of the Women’s Health Protection Act.

Today’s Supreme Court decision in June Medical Services v. Russo is a landmark legal victory against radical politicians relentlessly attacking reproductive rights cross the country. Roe v. Wade is safe—for now. This ruling is an important vindication of the fundamental right to abortion. But the decision, which did not garner a majority opinion, concerning a restrictive state law “almost word-for-word identical” to one the court struck down only four years ago, is no cause for complacency. In fact, it calls out for congressional action to pass the Women’s Health Protection Act. These rights are too important to leave in the hands of an increasingly politicized court that, even in this decision adhering to Whole Woman’s Health v. Hellerstedt, has demonstrated that the fundamental right to choose is in need of stronger protections than the courts alone can provide.

The court’s opinion affirmed that principles of stare decisis do in fact govern the laws that impact access to abortion. The law at issue was the same as in Whole Woman’s Health; the facts at issue were the same as in Whole Woman’s Health; the only allowable result, and the one the court thankfully reached, is the same as in Whole Woman’s Health: The law at issue is unconstitutional. As Justice Stephen Breyer put it so pointedly: “This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion.” Even Chief Justice John Roberts, who reiterated his opposition to the court’s opinion in Whole Woman’s Health, conceded that “[t]he Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law,” and that therefore “Louisiana’s law cannot stand under our precedents.”

The U.S. Court of Appeals for the 5th Circuit in this case went out of its way to try to undermine the Supreme Court’s command in Whole Woman’s Health, so much so that it even violated another foundational principle of adjudication—that a district court’s finding of facts can only be reviewed for clear error. The precedent here was utterly clear, and the 5th Circuit’s departure from it plainly egregious. In a world in which the Supreme Court were truly committed to protecting the fundamental right to abortion, and to upholding the principle of stare decisis, this case would have resulted in a swift, per curiam, unanimous opinion. Instead, we have a 45-page plurality opinion, in which Breyer had to meticulously pick apart the 5th Circuit’s treatment of the factual record (and the dissents’ arguments), a concurrence and four dissents. The fact that we are today celebrating that the Supreme Court, by a hair, came to the obviously correct conclusion is cause for concern. In a system governed by the rule of law, we would never have cause to doubt that the court would continue to protect the constitutional right to abortion. If the court’s pronouncements on abortion were taken as seriously as its commands in other areas, Louisiana would never have even pressed this case.

The Louisiana law at issue, just like the Texas law that the court struck down in Whole Woman’s Health, required abortion providers to “hold ‘active admitting privileges at a hospital’ that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” Just as the court found only four years ago, this requirement offers no discernible health benefits to individuals seeking abortions. As Breyer cogently elaborated, abortion is in fact too safe a procedure for abortion providers to warrant admitting privileges at hospitals—they simply do not send enough people to the hospital to meet many hospitals’ requirement that physicians “undergo a process of ‘focused professional evaluation,’ in which they are observed by hospital staff as they perform in-hospital procedures.” Further, “opposition to abortion played a significant role in some hospitals’ decision to deny admitting privileges”; indeed, gaining admitting privileges to certain hospitals would actually prevent health care providers from performing abortions altogether because “[s]ome hospitals expressly bar anyone with privileges from performing abortions.” The fact that, in at least some cases, admitting privileges are directly tied to anti-abortion policies makes clear that the admitting privileges requirement is a thin veneer beneath which the state of Louisiana attempted to disguise its anti-abortion agenda.

But this was only one among many tactics that states have used to attack the right to abortion. Since 2011, states have passed over 450 restrictions on abortion access, including provisions requiring wider doors in clinics, unnecessary waiting periods and, just like Texas and Louisiana, admitting privileges. In fact, Breyer’s opinion points to some of the obstacles that Louisiana has enacted that this decision does not directly displace: Louisiana prohibits abortions after 20 weeks of gestation, and women seeking an abortion are required to undergo an ultrasound and receive mandatory counseling at least 24 hours before the procedure. And doctors and patients continue to face open hostility from their colleagues and communities for providing essential reproductive health care. As the plurality opinion pointed out, some of the abortion providers in the case could not receive admitting privileges because the hospital had anti-abortion policies; some could not get other doctors to agree to be their “covering physician” because they themselves harbored anti-choice sentiment or had been subject to intensely hostile anti-choice protests. One doctor was forced to leave his position at a Baton Rouge hospital because of such protests; the protesters even targeted his children.

The court’s opinion today should serve as a caution against relying on the judiciary to protect these essential rights. The dissents make clear that there are currently four strong votes on the Supreme Court to abrogate, if not outright overturn, Whole Woman’s Health. This month, President Donald Trump confirmed his 200th federal judge, making this an even more perilous time to look to the courts to vindicate the right to abortion. But, even in a world where we did not fear that the courts would inappropriately depart from precedent, the scale of the attack that abortion providers face across the country is not one that we could ever reasonably ask the courts to address alone.

Clearer direction from Congress is sorely needed, which is why it is more important than ever that we pass the Women’s Health Protection Act, which I introduced last year. This bill would address the various, medically unnecessary restrictions that states have imposed on abortion by explicitly prohibiting laws imposing burdens on the provision of abortions that are not imposed on comparable medical procedures. These laws – known as targeted restrictions on abortion providers – do nothing to improve the health of people seeking an abortion, and instead seek to close clinics and leave women with few or no options. These restrictions will not disappear because of this decision, nor will their radical proponents rest because of the plurality opinion in this case.

Thankfully, Whole Woman’s Health and Roe will live to fight another day. But reproductive freedom is too important, and activists and advocates have worked too hard for too long, for Congress to stay silent. We have the chance to act and pass the Women’s Health Protection Act before irreparable damage is done; we must take it.