SCOTUS ‘TRAP law’ case and the erosion of abortion rights

Actress Michelle Williams got some traction when she used her Golden Globe acceptance speech to champion abortion rights, saying she was “grateful to have lived at a moment in our society where choice exists.” But the moment she spoke of may be fleeting.

Three days before Willams’s speech, over 200 members of Congress signed onto an amicus brief urging the Supreme Court to reconsider, if not overturn, Roe v. Wade, the 1973 landmark decision legalizing abortion in the U.S.

To those who support women’s rights, this is very disheartening, but hardly shocking. Overturning Roe has been a cornerstone of the conservative agenda for decades. The strategy has been to stack the Supreme Court and the lower federal courts with anti-choice justices and gradually chip away at abortion rights until Roe itself falls. Thanks to President Donald Trump and Senate Majority Leader Mitch McConnell (R-Ky.), the strategy is dangerously close to achieving its goal.

With Justices Neil Gorsuch and Brett Kavanaugh on the Supreme Court bench, overturning Roe may be within reach. And it’s not just the Supreme Court; since taking office, Trump has appointed 185 judges to the lower federal courts. State abortion restrictions that would have been swiftly overturned as unconstitutional by the lower federal courts a couple of years ago are now making their way up the judicial ladder.

One such case, June Medical Services v. Gee, was the occasion for that amicus brief asking the Supreme Court to reconsider Roe, which 39 senators and 168 representatives signed. At issue is the legality of a 2014 Louisiana law requiring doctors who perform abortions to have admitting privileges at a nearby hospital. The Court will hear the case in March.

The brief, written by the national anti-abortion organization Americans United for Life, cites what it alleges to be the “unworkability of the ‘right to abortion’ found in Roe.” But there is nothing unworkable about Roe itself.  It’s just that several states have tried to make it unworkable to exercise abortion rights by passing Targeted Regulation of Abortion Providers (TRAP) laws.

In-clinic abortions in the U.S. are proven to be safe, effective, and have few complications. Yet TRAP laws misleadingly use the rhetoric of protecting women’s health safety to restrict and deny abortion access. They go far beyond what is required to protect patient safety, piling on medically unnecessary requirements for ambulatory surgical centers or for doctors who provide abortions to obtain hospital admitting privileges, ostensibly for post-abortion emergency care. But it’s highly unlikely that emergency care would be needed after an abortion. And with the growing number of Catholic hospital networks in the U.S., it’s getting harder for abortion doctors to acquire admitting privileges at local hospitals. TRAP laws’ real agenda is to invent bogus, onerous requirements that prevent more doctors from providing abortions.

June Medical Services v. Gee isn’t the first Supreme Court case involving TRAP laws. In 2016, the Court struck down a Texas law — that was nearly identical to the Louisiana law — in Whole Woman’s Health v. Hellerstedt because the law imposed an undue burden on those seeking abortions. In her concurring opinion, Justice Ruth Bader Ginsburg wrote that modern abortions are so safe that imposing such restrictions in the name of safety would violate constitutionally protected abortion rights.

But that was then, and this is now. With the new makeup of the Court, that decision could be reversed, and Louisiana’s TRAP law could very well be upheld. The Court may not go so far as to overturn Roe in this session, but that day may be getting closer.

If Roe’s constitutional protections are eventually overturned, the status of abortion rights will be determined by the states, as they were prior to 1973. That makes it critically important for states to pass their own laws protecting abortion rights. Fortunately, many are starting to do so. In 2019, nearly 950 bills aimed at protecting reproductive rights were introduced across 49 states and Washington, D.C. Almost 150 of those bills were enacted in 38 states and D.C.

That’s laudable, but if the Supreme Court overturns or limits Roe and its constitutional protections, it will still curtail Americans’ abortion rights. It will mean that a person’s reproductive health and rights will increasingly depend on what state they live in.

For example, if a woman lives in New York, her rights are guaranteed under state law. But if she lives in South Carolina, she may find abortion illegal after the sixth week of pregnancy. Anti-choice state lawmakers are trying to enact the six-week ban now.

In response to the ban, a pro-choice legislator in South Carolina introduced the “Pro Birth Accountability Act.” Should the abortion ban be adopted, the accountability act would require the state to compensate the women it forces to carry unwanted pregnancies, similar to how surrogates are paid for their services. While it’s very unlikely the accountability act will pass, it’s intended to illustrate the cluelessness and tone deafness of anti-abortion laws, and to force anti-choice lawmakers to reckon with the real-life consequences of abortion bans.

In the same way, the Supreme Court needs to come to grips with what it would really mean to strike down abortion rights. If Roe is ultimately overturned, Michelle Williams and millions of other Americans will sorely miss living in a time when choice existed.

This op-ed by Population Institute Director of Research Bridget Kelly originally ran on January 13, 2020 in The Hill.