Circuit Courts Ignore Precedent and Set Up Path to Gut Roe

Rachel Kuenzi

In the last few months, we stood alongside our allies across the country to oppose the confirmation of Brett Kavanaugh to the Supreme Court because we knew the dire threat he poses to women and families. While we were in the midst of that fight, judges in two U.S. Courts of Appeals unabashedly disregarded Supreme Court precedent that protects women’s right to abortion.

The 5th and 8th Circuit Courts ignored clear precedent when they upheld harmful abortion restrictions to the detriment of women in Louisiana and Missouri. Perhaps even more concerning, these Circuit Court rulings appear intended to set up a direct path to overturn Whole Woman’s Health v. Hellerstedt and Roe v. Wade at the Supreme Court.

In 2016, the Supreme Court decided in Whole Woman’s Health that a Texas law which placed medically unnecessary restrictions on abortion providers was unconstitutional. The court ruled that these requirements created an undue burden on Texas women seeking access to safe and legal abortion.

These kinds of laws — known as TRAP (targeted regulation of abortion providers) laws — do nothing to benefit women’s health and have no medical justification. Rather, these requirements are an effort to close down clinics that help women access not only abortion but also health care services for issues such as cervical and breast cancer, HIV and other STIs, and infertility.

Louisiana and Missouri — among many other states — have passed very similar laws to those struck down in Texas. Under the Supreme Court precedent in Whole Woman’s Health, these laws should be declared unconstitutional — same law, same ruling.

But in the Louisiana case, the 5th Circuit upheld a law that will close abortion clinics throughout the state by requiring physicians performing abortions to have admitting privileges at a local hospital. Gaining these privileges is nearly impossible to accomplish, according to the doctors’ testifying in the case.

Prior to the 5th Circuit ruling, the District Court held that the requirement was unconstitutional, and found that the doctors were unable to obtain privileges despite a good-faith effort to do so. The court found that the law placed an undue burden on Louisianan women because there will only be one remaining licensed abortion provider in Louisiana when the law goes into effect on October 18th. Ignoring that logic, the Circuit court overturned the District Court, manipulating the legal test from Whole Woman’s Health, and unabashedly signaled a desire to overturn Roe. The court stated that if “decisions of the United States Supreme Court [creating a constitutional right to abortion] are ever reversed…[the] policy of this State to prohibit abortions shall be enforced.”

Similarly, the 8th Circuit recently ruled that even if Missouri’s statute contained the exact same language as the Texas statute, the “underlying facts” in Missouri fundamentally changed the cost-benefit analysis of the undue burden standard. However, Whole Woman’s Health held that the Texas law was an undue burden because it reduced the number of clinics to seven — Missouri will see the number of clinics reduced to an even more drastic number: one. Closing abortion clinics will harm the health care of all women in Missouri, but it will have a particularly devastating effect on low-income women who cannot afford to travel to the one clinic located in St. Louis. Socioeconomic status and geography should not dictate a woman’s ability to access her constitutional right.

With Kavanaugh now on the bench, the Court seems poised to take up the opportunity presented by these recent decisions. As we said throughout the confirmation fight, there is a real possibility Whole Woman’s Health and Roe will be overturned or undermined such that women will no longer have any meaningful access to our constitutional right to abortion. We know that Justice Kavanaugh and this Supreme Court pose the greatest threat to reproductive rights and health care in more than a generation. But we are not giving up the fight! To find out how you can join us in our fight to defend and advance access to abortion care sign up here.

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