On Wednesday, the Supreme Court will hear its biggest abortion case in years. At a glance, the case does not appear to involve the usual matchup. June Medical Services v. Russo instead asks the court to weigh in on whether abortion hurts women.
Louisiana passed a law requiring doctors performing abortions to have admitting privileges at a hospital within 30 miles. The state claims the law guarantees patients continuity of care when they suffer post-abortion complications. Here’s the problem: The Supreme Court rejected an identical law four years ago, and the justices suggested abortion rarely harms anyone.
But Louisiana isn’t just asking the court to change its mind. The state is also asking the court to hold that abortion providers should not be able to challenge the constitutionality of any abortion law. “Abortion providers and their patients have an obvious conflict in the inevitable trade-off between cost and safety,” Louisiana argues. Antiabortion amici likewise oppose third-party standing, arguing that patients were “deceived, misrepresented, inadequately protected, less than adequately informed and severely injured by the abortion industry.”
So where did this “protect women” argument come from, and why is it back?
Early arguments focused on fetal rights
Arguments that abortion hurts women date to the 1960s and the early years of the abortion reform movement. While reformers highlighted the health benefits of certain abortions, abortion foes responded that the procedure caused psychological and physical harm. Roe v. Wade made abortion rights the law of the land, but that didn’t stop arguments that abortion hurts women. Historian Karissa Haugeberg has shown these arguments spread rapidly in the crisis pregnancy centers set up by Catholic women to persuade women in their communities not to end their pregnancies.
But for decades after Roe, larger antiabortion organizations were another story. These groups organized to promote a constitutional amendment banning all abortions nationwide. Organizations like Americans United for Life and the National Right to Life Committee were happy to set up groups for women who regretted their abortions, but fetal rights were still the point.
Eventually, abortion foes switched gears. They weren’t getting traction on a constitutional amendment, so abortion foes mapped out a different plan to overturn Roe v. Wade. Starting in the mid-1980s, these activists worked to influence races for the Senate and the White House, to shape who was on the federal bench, to pass laws against abortion, and then to defend them in court. Still no big group showed much interest in arguments about women. Fetal rights arguments had brought many to the movement in the first place. More extreme organizations such as Operation Rescue, which blockaded clinics in the late 1980s and early 1990s, simply saw women as perpetrators, not victims deserving support.
Casey declared that women’s equality relied on abortion — but opened a window for abortion opponents
The road to June Medical began in 1992, when the Supreme Court surprised everyone by saving Roe. Presidents Ronald Reagan and George H.W. Bush had nominated more than enough justices to end abortion rights, but in Planned Parenthood v. Casey, the court defied expectations. It reasoned that women had relied on abortion to lead more equal lives, and so it preserved the right.
However, Casey put in place a less protective standard by which to measure abortion regulations: the undue burden standard, which invalidated only laws that created a substantial obstacle for patients seeking abortion. Further, Casey upheld a law requiring patients to hear information about fetal development, child support, adoption and so on. In doing so, the court suggested providers sometimes failed to tell women what they needed to know and uninformed patients could regret what they had done.
Enter arguments about protecting women
After Casey, leading antiabortion groups felt they had no choice but to argue that abortion hurts women. The justices had saved the right to abortion by emphasizing women needed it. To eliminate that right, then, abortion foes wanted to show what women really needed was to be protected from abortion. Besides, in between, a rash of extremists violently attacked women’s health clinics and abortion providers, in some cases killing staff or physicians. Focusing on women could give the antiabortion movement a kinder, gentler image.
Fast-forward a few years, and arguments that abortion hurts women were everywhere — in Canada, as well as in the United States, as political scientists Paul Saurette and Kelly Gordon have shown. Antiabortion groups tried to pass laws that claimed abortion was linked to breast cancer and suicidal thoughts. Meanwhile, states passed laws requiring doctors to have hospital admitting privileges — or demanding clinics comply with regulations governing ambulatory surgical centers. Sometimes, these laws required building renovations that cost millions of dollars. When it came to admitting privileges, doctors struggled, too — either because not enough patients had complications to meet a hospital quota or because hospitals did not want to wade into the abortion issue.
Then the Supreme Court got involved. In the 2016 decision Whole Woman’s Health v. Hellerstedt, the justices held not only that an admitting-privileges law would force most clinics to close but also that the law was useless — and that abortion itself was safe.
Major antiabortion groups didn’t give up on arguments that abortion hurts women. The 2020 March for Life, the annual antiabortion demonstration in Washington, highlighted claims that “pro-life is pro-woman,” portraying such groups as women’s true defenders.
These arguments might be key to reversing Roe. No one in the court’s conservative majority is likely to believe the Constitution protects abortion. But Chief Justice John G. Roberts Jr. might worry about the court’s reputation — and thus might want to show some respect for precedent.
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To persuade these holdouts, abortion foes invite the court not to think of abortion as a zero-sum game pitting women’s rights against fetal rights. Instead, the activists argue, the last thing women need is abortion. In June Medical, we will have our first chance to see whether the court is buying it.
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Mary Ziegler is a law professor at Florida State University and author, most recently, of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).