Roe v. Wade Soon Could Become a Right on Paper Only

The U.S. Supreme Court will soon hear oral arguments in June Medical Services v. Russo, and the stakes could not be higher for reproductive rights.

It ought to be a forgone conclusion. The Louisiana law at issue is virtually the same as a Texas law that was struck down by the Supreme Court in Whole Women’s Health v. Hellerstedt four years ago. But since then, Trump appointees Neil Gorsuch and Brett Kavanaugh have joined the Court and solidified a conservative majority.

The Louisiana law now under review requires doctors performing abortions to have admitting privileges at a nearby hospital. That may sound innocuous, but it’s a TRAP (Targeted Restriction of Abortion Providers) law aimed at shutting down abortion clinics, not at improving the safety of abortions. The practical effect would be to jeopardize access to abortion providers in Louisiana.

If the U.S. Supreme Court upholds Louisiana’s TRAP law, the ramifications will extend far beyond Louisiana, and accelerate erosion of reproductive rights across the U.S. Much has already been lost. Escalating state-level attacks on abortion rights, sex education, and family planning access are creating a deepening divide between those states actively promoting reproductive health and rights and those restricting access to services.

Louisiana is one of 20 states that just received a failing grade in the Population Institute’s annual 50 State Report Card on Reproductive Health and Rights. And for the first time, the report card lowered the overall U.S. grade to an “F.”

The failing national grade reflects escalating damage that the Trump/Pence administration is inflicting on federally supported family planning and reproductive health services.

Over the past three years, the administration has tried to turn back the clock on reproductive rights, for example with regulatory changes affecting contraceptive coverage provided by Medicaid and the Affordable Care Act. It is also seeking to abandon federal support for evidence-based sex education programs which are proven to reduce teen pregnancies. In their place, it is reinstating failed “abstinence-only” curricula, now repackaged as “sexual risk avoidance” programs.

Last year the administration took aim at Title X, a 50-year-old, highly successful federal program that has supported providing family planning services to low-income households. But Title X family planning providers are now prohibited — among other restrictions — from referring patients to abortion services.

Commonly known as the “domestic gag rule,” these new regulations forced Planned Parenthood clinics and several other Title X providers to drop out of program and reject federal funding, slashing the Title X network’s capacity in half. In place of traditional family planning clinics, Title X is now funding “crisis pregnancy centers,” often operated by medically unqualified abortion opponents.

These changes seriously jeopardize access to services for 4 million people who depend on Title X.

But an even greater threat to the future of Americans’ reproductive health and rights is coming from the federal judiciary, where the Trump administration has been appointing new judges who are overwhelmingly white, male and anti-choice. In addition to putting Gorsuch and Kavanaugh on the U.S. Supreme Court, the administration has appointed over 150 justices to lower federal courts.

If the worst happens and the Supreme Court upholds the Louisiana TRAP law in June Medical Services v. Russo, we could see a rush of states passing similar restrictions forcing clinics around the U.S. to close.

This could lead to a situation where Roe is still technically the law of the land but completely inaccessible to people who need it. We would have an America where the right to abortion is a right in name only. But for many Americans, especially low-income individuals and people of color, this is already their reality.

This op-ed by Population Institute Director of Public Policy Jennie Wetter originally ran on February 24, 2020 in The Hill