Without Precedent

June 4, 2020

Photo by Joe Ravi licensed under CC BY-SA 3.0

A new, more conservative Supreme Court is about to rule on its first major cases involving reproductive health and rights. What are the potential implications for access to care?

Listen to the full episode below or scroll down for the transcript and more information.

Sen. Dianne Feinstein: What would you say, your position today is on a woman’s right to choose?

Brett Kavanaugh: As a judge, it is an important precedent of the Supreme Court. By it I mean, Roe v. Wade…it has been reaffirmed many times…And I understand the significance of the issue.

Neil Gorsuch: Senator, Roe v. Wade decided in 1973 is a precedent of the United States Supreme Court…So a good judge will consider it as precedent of the U.S. Supreme Court worthy of treatment as precedent like any other.

Dan Gorenstein: Justices Kavanaugh and Gorsuch are just the two most recent Supreme Court nominees grilled before the Senate on our country’s history of reproductive health laws.

Although they both said they respected previous court rulings, we’ve all known the true test would come only when the cases did.

And now they’ve arrived…one on abortion and another on birth control…with rulings expected any day.

From the Annenberg Studio at the University of Pennsylvania, an overview of the first reproductive health cases to come before the new, more conservative Supreme Court.

I’m Dan Gorenstein, and this is Tradeoffs.

Mary Ziegler: People are waiting for, you know, like when Trump gases the protesters and walks to the church, like moments like that where everybody can tell that that was a bad idea. Right. The Supreme Court is never or rarely that obvious about what they’re doing.

Mary Ziegler

Mary Zeigler, JD, Stearns Weaver Miller Professor, Florida State University College of Law. Credit: Bill Lax/FSU Photography Services

DG: Mary Ziegler is a professor of law at Florida State University, who’s written several books on the legal history of Roe v. Wade, including her most recent Abortion and the Law in America. She says the two cases in front of the court sound more technocratic, than constitutionally sweeping.

MZ: It’s sort of puzzling why we’re even focusing on what seem like these sort of bizarrely technical questions, but the consequences of those questions are really, really significant.

DG: That significance…says Mary, is two fold.

First, you’ve got the immediate impacts on people’s health and lives.

Then, there’s the signals they send about where this Court may head on abortion and contraception in the long run.

DG: Let’s really sort of take each case here one by one, Mary. Can you really walk us through the June Medical case?

MZ: On the surface, the case is pretty simple. It involves a Louisiana law that requires abortion doctors to have admitting privileges at a hospital within 30 miles of a clinic.

DG: Requiring abortion clinics to make hospital-level care available is a strategy anti-abortion groups have embraced in recent years.

These regulations sounds like they’re in the interest of women’s safety. But researchers have proven them medically unnecessary, and ultimately a ploy to bury clinics in a mountain of costly bureaucracy.

The Supreme Court agreed just four years ago, overturning a similar law in Texas…calling it a “substantial obstacle in the path of women” seeking abortion.

News clip: A historic win for abortion rights activists at the nation’s highest court. In a 5-3 decision…

MZ: But now Louisiana is back essentially asking the court either to narrow its earlier ruling or overturn it altogether.

DG: If the Court does uphold the Louisiana law, Mary says we’d see two major fallouts.

The first is all about access for women in Louisiana.

MZ: The trial court, which heard pretty extensive evidence on the subject, found that if the law went into effect, Louisiana would have only one remaining abortion clinic. So the law would potentially have pretty significant ramifications in Louisiana and probably beyond Louisiana. Quite often when the Supreme Court upholds an abortion restriction. National anti-abortion organizations then use that as a blueprint across the country.

DG: The Texas experience illustrates just how big of an impact laws like these can have.

Half of the state’s clinics closed and more than tripled the number of women living more than 150 miles from a clinic.

That’s hours…even days…and money that not everyone can afford to spend seeking care…not just for abortion, but other basic services…like pap smears and birth control.

The second issue impacts the whole country.

A decision in favor of Louisiana would send a clear sign by directly contradicting the Texas ruling that’s just four years old.

MZ: If the Supreme Court is to overturn a precedent on abortion, that of course, is going to send a powerful message about its most significant abortion precedent, Roe v. Wade.

DG: Finally, there’s one other thing lurking in the weeds of June Medical.

MZ: Louisiana is additionally asking the court to hold that abortion providers and clinics can no longer bring constitutional lawsuits at all, essentially arguing they’re not to be trusted with women’s well-being and women’s health. It’s the fox guarding the henhouse. 

DG: There’s a reason why virtually all major abortion cases since the 1970’s have been brought by providers and clinics…while a pregnant woman could bring a case, she’s got to be pregnant, giving her suit a pretty tight timeframe.

The other big case before the Court is superficially about birth control…and whether it’s included in the insurance that more than 40 million women get through work.

Let’s walk through the Little Sisters of the Poor case a little bit more. Mary, what are the key questions there?

MZ: The second case, Little Sisters of the Poor, involves regulations introduced by the Trump administration to protect the religious liberty of employers with conscientious objections to birth control.

DG: The administration introduced those regulations in an attempt to build on a big win that conservatives scored back in 2014 in a case known ..as Hobby Lobby.

News clip: The Supreme Court minutes ago punched a hole in the Affordable Care Act. Justices ruled private corporations can reject insurance coverage of birth control based on their religious beliefs.

MZ: So the Trump administration introduced these regulations that pretty dramatically increase who qualifies for such an exemption. Some estimates suggest this is going to result in about 70,000 women losing birth control coverage under the Affordable Care Act.

DG: As significant as that ruling could be for tens of thousands of women, that impact is dwarfed by the case’s much larger implications.

MZ: So much as kind of June Medical gives us some insight into where the Supreme Court is going under this new conservative majority when it comes to abortion. Little Sisters of the Poor is going to give us insight into how expansively this court is going to define religious liberty.

DG: The concern is that ‘Little Sisters’ gives employers more discretion to exert their religious beliefs through health insurance plans…and Mary says many Americans could find more than just their contraceptive coverage in jeopardy.

MZ: Justice Alito was suggesting that if you want to know when there is a burden on religious exercise, all you have to do is ask the person who’s complaining. It’s hard to see what the limiting principle of that would be. Right. If an employer has an objection to providing some kind of health care for an LGBT employee or an employee who needs fertility treatment. It’s hard for me to imagine that the court would go that broad in defining religious liberty. But it’s on the table.

DG: These two cases are a chance for the Court’s new conservative majority to dip their toes in the raging hot waters of America’s war over reproductive rights.

Mary says that intrigue, along with the cases’ legal minutia, make it easy to forget what else is at stake.

MZ: The outcomes for people’s health care and lives are the same, right, even if they’re being framed in a technical way

DG: From racial disparities in maternal mortality to rising rates of sexually transmitted infections, gaps in access to quality reproductive health remain across America.

At best, these decisions could maintain that imperfect status quo.

At worst, they could leave many more without care.

As the first of many chances this new Court will have to shape our country’s health care system…these two cases will signal what’s to come.

I’m Dan Gorenstein, and this is Tradeoffs.

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Episode Resources

Episode Credits


Mary Ziegler, JD, Stearns Weaver Miller Professor of Law, Florida State University

The Tradeoffs theme song was composed by Ty Citerman.

This episode produced by Sabrina Emms and Leslie Walker. It was mixed by Andrew Parrella.

Additional thanks to:

Leah Litman, Monica McLemore, Alina Salganicoff, Laurie Sobel, the Tradeoffs Advisory Board…

…and our stellar staff!