TRAPped: Justice Kavanaugh & the Actual Evidence in June Medical Services v. Gee
Once upon a time, Sen. Susan Collins (R-ME) insisted that Supreme Court Justice Brett Kavanaugh believes that precedent “is a constitutional tenet that has to be followed except in the most extraordinary circumstances.”[1] Shockingly, it seems that after four months on the bench, Justice Kavanaugh has already identified those “most extraordinary circumstances”: opportunities to restrict women’s constitutionally protected right to abortion.
On February 7, Justice Kavanaugh voted to deny a temporary stay of a Louisiana TRAP (targeted regulation of abortion providers) law nearly identical to a measure declared unconstitutional only two years ago in Whole Woman’s Health v. Hellerstedt. Again, shockingly, Kavanaugh jumped at the chance to write a dissent in his first abortion case.
Let’s unpack what he wrote.
Justice Kavanaugh contends that because Louisiana’s law has not yet gone into effect, we cannot possibly know whether it imposes an undue burden on women seeking abortions. Essentially, the Justice accepts at face value Louisiana’s assertion that abortion providers will be able to easily obtain admitting privileges and that the state will not “move aggressively to enforce the challenged law” during the 45-day transition period.[2] What Justice Kavanaugh completely misses in his quest to erode abortion rights by any means necessary is what Whole Woman’s Health made abundantly clear: “in evaluating a restriction’s benefits and burdens, courts must not simply defer to a State’s assertions about any purported benefits or burdens, but must consider actual evidence.”[3]
So what is the actual evidence in June Medical Services v. Gee?
Notably, there is no federal or state statute defining uniform standards for granting admitting privileges; instead, these rules vary from hospital to hospital with no set time limit to act upon applications. What’s more, hospitals may deny privileges or decline to consider an application for myriad reasons unrelated to the physician’s competency including the mission of the hospital and the physician’s status as an abortion provider. Louisiana providers testified that requiring references as to the applicant’s “character” as well as identification of staff who will cover the applicant’s patients if he/she is unavailable inject staff and public hostility to abortion into the credentialing process.
Ultimately, due to the credentialing process used by Louisiana hospitals, the actual evidence proves that abortion providers would not be able to comply with the law by obtaining admitting privileges at a nearby hospital. This is not at all surprising given that TRAP laws are literally designed to close abortion clinics by imposing onerous and medically unnecessary requirements on facilities and providers.
The resulting burdens on Louisiana women seeking abortions can hardly be overstated. In Whole Woman’s Health, the Court concluded that Texas’ TRAP law would force remaining state facilities to serve between 7,500 and 10,000 patients each year. Similarly, implementation of Louisiana’s TRAP law would shutter two of the state’s three remaining abortion clinics and leave only one provider qualified to care for the nearly 10,000 Louisiana women seeking abortions each year.
Low-income women would undoubtedly suffer the heaviest burdens. Louisiana is one of the poorest states in the country and few have insurance that covers abortion. Significantly, women of color in the state make less money than anywhere else in the country — just 47 cents for every dollar earned by white men — and one in three live in poverty. Absent implementation of the TRAP law, over 63% of Louisiana women already live in parishes without abortion clinics; with the law in place, traveling distances to clinics and difficulties in securing transportation would only be exacerbated. Finally, due to the state’s 24-hour waiting period, women would be forced to make two trips to the clinic or to pay for lodging overnight, compounding the expense of taking two days off work. In the end, “[w]omen who cannot afford to pay the costs associated with travel, childcare, and time off from work may have to make sacrifices in other areas like food or rent expenses, rely on predatory lenders, or borrow money from family members or abusive partners or ex-partners, sacrificing their financial and personal security.”[4]
These are facts. This is actual evidence of what would happen to real women if Louisiana’s TRAP is implemented. How many women must travel 320 miles from their homes in Shreveport to the state’s only clinic in New Orleans in order to satisfy Justice Kavanaugh? How many women must carry an unwanted pregnancy to term or seek unlicensed care? Pregnant individuals should not have to suffer just so Justice Kavanaugh can be convinced of the evident burdens imposed by this law. Weighed against the non-existent benefits — the Supreme Court has already recognized that abortion is safe and that admitting privileges requirements “provide[] few, if any, health benefits for women” — it is clear that the burden is, in fact, undue.[5]
Far more than the rights of Louisiana women are at stake in this case. State legislatures across the country are currently considering bills to ban abortion as early as six weeks, before most women even know they are pregnant. Inspired by conservative backlash against monumental progressive legislation like New York’s Reproductive Health Act, Republican senators have reintroduced a nationwide 20-week ban (a strategy that failed before). Despite a temporary victory in the Supreme Court, conservative justices remain poised to undermine Roe v. Wade at the earliest — or perhaps most politically advantageous — opportunity. If the Supreme Court refuses to fulfill its constitutional duty by upholding settled abortion law, this case could mark the beginning of the end for safe and legal abortion.
Frustrated? Outraged? Me too. Want to do something about it? Introduce legislation to codify Roe v. Wade and protect access to safe and legal abortion in your state. Write a letter to the editor, op-ed, or blog post conveying your passionate support for a woman’s right to make her own moral and faith-informed decisions about her body, health, and future. Visit, call, or email your state and federal lawmakers to urge them to support proactive legislation safeguarding reproductive health, rights, and justice and to oppose bills meant to render our constitutional rights meaningless. With Roe hanging in the balance, the time is NOW to voice your commitment to creating a world where all people, regardless of race, class, gender, sexuality, ability, or immigration status, have the right to make their own informed decisions about their bodies and futures.
[1] Stavros Agorakis, Read the Full Transcript of Sen. Collin’s Speech Announcing She’ll Vote to Confirm Brett Kavanaugh, Vox (Oct. 5, 2018), https://www.vox.com/2018/10/5/17943276/susan-collins-speech-transcript-full-text-kavanaugh-vote.
[2] June Medical Services v. Gee, 586 U. S. ____ (2019) (Kavanaugh, J., dissenting).
[3] June Medical Services LLC v. Kliebert, 250 F. Supp. 3d 27, 32 (M.D. La. 2017).
[4] Id. at 83.
[5] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2317 (2016).
