Following the Supreme Court’s decision in Roe v. Wade in 1973, abortion became one of the most polarizing topics in America’s political and public discourse. On March 4, 2020, the Supreme Court will again address the legality and nuance of abortion legislation in the United States, affording the 2020 presidential candidates ample opportunity to comment on, and discuss, the subject.[1] This upcoming case, June Medical Services, LLC v. Gee, revolves around restrictions that legislators have attempted to place on abortion procedures in the state of Louisiana. A similar case was heard by the Court in 2016 that concerned abortion laws in Texas, which resulted in similar abortion restrictions being struck down, but June Medical Services, LLC v. Gee will be the first time that President Trump’s newest judicial appointees, Justice Kavanaugh and Justice Gorsuch, will contribute to the Court’s decision.[2] While this case is important for several reasons, its potential to expose abortion providers to criminal charges in Louisiana has garnered substantial attention and numerous comments from the legal community.
June Medical Services, LLC v. Gee reached the Supreme Court after several Louisiana House Bills aimed to place restrictions on abortion procedures and limit who can perform such procedures.[3] These bills called for the following changes, to name a few. First, no “institution, board, commission, department, agency, official, or employee of the state, or of any local political subdivision thereof” could award funding to institutions or centers that performed abortions.[4] Abortions would also be deemed illegal if performed after twenty weeks of gestation, even if there was a detected abnormality.[5] All physicians who could legally perform abortions would have to be board-certified in obstetric medicine or gynecology, or otherwise be under the direct supervision of a board-certified obstetrician or gynecologist.[6] It would also prohibit medical facilities or individuals from donating fetal tissue after an abortion is performed. [7]
So, what do all of those restrictions really mean? If upheld by the Supreme Court, this legislation would substantially reduce the number of doctors that could legally perform abortions in the state. According to these bills, abortions may only be performed by doctors that have admitting privileges at a hospital within thirty miles of the facility in which the abortion is performed.[8] It has been projected that this restriction alone would limit legal abortion providers to only one in a state consisting of 4.5 million people.[9]
Doctors who perform abortions illegally may face a plethora of charges depending upon the state in which the procedure is performed. For example, the state of Georgia recently passed a law that made abortions performed after six weeks of gestation illegal, while simultaneously defining fetuses as legal persons.[10] Commentators have been quick to point out that women who seek abortions in Georgia, and providers who perform abortions in that state after the six week cut-off period, can face hefty penalties, including homicide and capital punishment charges.[11] Although Louisiana has not deemed fetuses as legal persons, if the Supreme Court were to uphold the proposed restrictions, doing so would be a plausible next step, as that would effectively increase the restrictiveness of abortion procedures in the state.
President Donald Trump said during his 2016 campaign that abortions should be made illegal and “there has to be some form of punishment” for those who have abortions.[12] As Justice Kavanaugh and Justice Gorsuch were appointed by President Trump and are conservative justices, it is reasonable to be concerned that the Court will uphold Louisiana’s restrictions. Justice Roberts, who is considered to be a relatively conservative justice, dissented during the Texas case heard in 2016, but voted in favor of blocking the Louisiana law that is eerily similar, so it is difficult to theorize how he will ultimately vote on this issue.[13] Although Louisiana has not yet determined that fetuses are to be classified as legal persons, penalties for performing abortions without having admitting privileges could still lead to grave penalties and criminal charges being brought against the doctors who perform these procedures and the women who seek out doctors without the proper privileges.
This case is receiving increased attention not only because it addresses abortion, but because it will set a precedent for how the Court’s newly appointed conservative majority will approach issues concerning all reproductive rights.[14] The decision will determine what restrictions a state can place on who performs abortions and what legal implications medical practitioners may face if they continue to illegally perform certain procedures. Doctors who continue to perform these procedures without having admitting privileges may face homicide, assault, battery, and a myriad of other charges if the Supreme Court upholds Louisiana’s restrictions. This case could set a precedent for other states, meaning that doctors who perform abortions across the U.S. could potentially face criminal convictions if they do not meet certain criteria. Based on the present ideological makeup of the Court, we must prepare ourselves for the possibility that doctors in Louisiana may potentially face criminal charges for performing procedures that they have routinely practiced if this case is upheld.
[1] https://thehill.com/policy/healthcare/abortion/472113-supreme-court-sets-date-for-louisiana-abortion-case
[2] https://www.washingtontimes.com/news/2019/dec/26/supreme-court-to-hear-louisiana-abortion-case-in-2/; https://thehill.com/policy/healthcare/abortion/472113-supreme-court-sets-date-for-louisiana-abortion-case
[3] June Medical Services, LLC v Gee, 280 F. Supp. 3d 849 (M.D. La. 2017)..
[4] See Id. at 854-58.
[5] See Id. at 854-58.
[6] See Id. at 854-58.
[7] See Id. at 854-58.
[8] https://www.cnbc.com/2019/10/04/supreme-court-abortion-louisiana.html
[9] https://www.cnbc.com/2019/10/04/supreme-court-abortion-louisiana.html
[10] https://www.washingtonpost.com/outlook/2019/05/17/new-abortion-laws-wont-return-us-pre-roe-era-theyll-do-much-worse/
[11] https://www.washingtonpost.com/outlook/2019/05/17/new-abortion-laws-wont-return-us-pre-roe-era-theyll-do-much-worse/
[12] https://newrepublic.com/minutes/132263/donald-trump-abortions-illegal-there-form-punishment-women-them
[13] https://www.nytimes.com/2019/02/07/us/politics/louisiana-abortion-law-supreme-court.html
[14] https://www.cnbc.com/2019/10/04/supreme-court-abortion-louisiana.html