In the coming months, the Supreme Court of the United States will hear its first abortion case since the court became dominated by conservative justices, giving Americans their clearest look yet at how powerful the anti-abortion movement’s narrative is in the face of medical facts.
The case, June Medical Services v. Gee, concerns a Louisiana law passed in 2014 that requires abortion providers to have admitting privileges at a local hospital. The law’s supporters say it’s intended to protect those who have emergency complications from abortion procedures ― a talking point that, on its surface, people on both sides of the issue could get behind.
But in reality, the law the Supreme Court is reviewing ― which would leave just one abortion provider in the entire state of Louisiana ― is based on the falsehood that abortion is a dangerous procedure.
“It’s one of the safest medical procedures you can have, with a less than 1% [major] complication rate,” said Dr. Bhavik Kumar, a family medicine physician in Texas and the medical director for Planned Parenthood Gulf Coast, which operates two clinics in Louisiana.
“Anything that hints at or creates the possibility that abortion is not safe is absolutely untrue.”
Ninety-five percent of women who have abortions in the U.S. receive them in clinics or offices like those operated by Planned Parenthood, and those settings are perfectly equipped for such a procedure, according to a large study published last year by the National Academies of Sciences, Engineering, and Medicine.
“Anything that hints at or creates the possibility that abortion is not safe is absolutely untrue,” Kumar continued, noting that the procedure is also incredibly common, with 1 in 4 women receiving an abortion in her lifetime.
Moreover, complications are almost always manageable in a clinic, Kumar said, and in the rare instances that they aren’t, patients would be admitted to a hospital for emergency care with or without a law requiring abortion providers to have admitting privileges.
The low rates of abortion-related complications, which may include blood clots or pelvic infections, are listed on the Louisiana Department of Health’s website, and the large-scale National Academies study found “no evidence indicating that clinicians that perform abortions require hospital privileges to ensure a safe outcome for the patient.”
The Louisiana law’s supporters have painted a different picture.
“Abortion has known medical risks,” state Rep. Katrina Jackson (D), the 2014 law’s author, said in a statement last month, “and the women of this state who are often coerced into abortion deserve to have the same standard of care required for other surgical procedures.”
That’s the type of rhetoric that anti-abortion activists and lawmakers are leaning on now instead of messaging about protecting a fetus, said Michelle Erenberg, the executive director of Lift Louisiana, an organization focused on women’s health in that state.
There’s a movement of people behind these laws “focusing more on trying to regulate the safety of abortion under the guise of protecting women’s health,” she said.
“I think it was actually a pretty clever move on their part,” Erenberg continued, “because it’s easier for people to see these regulations as reasonable and not as just an effort to prohibit abortion or shut down abortion clinics, even though we all know that that is their impact.”
In reality, Erenberg noted, there’s a higher rate of hospitalization for wisdom tooth removal than there is for abortion.
“It’s easier for people to see these regulations as reasonable and not as just an effort to prohibit abortion or shut down abortion clinics, even though we all know that that is their impact.”
Anti-abortion activists also take the approach of “demonizing” abortion providers as “bad health care professionals that are hurting women and that don’t care about women,” Erenberg said.
Sen. John Milkovich (D), who wrote Louisiana’s recent abortion ban bill, called providers “the abortion cartel” in May, Erenberg noted. In addition to Jackson’s baseless suggestion that doctors coerce women into abortions, Louisiana Right to Life’s executive director, Benjamin Clapper, said last month that the law heading to the Supreme Court would protect against “[s]ubstandard physicians and for-profit providers unable to meet health requirements.”
But the reason abortion providers can’t easily obtain hospital admitting privileges has nothing to do with being substandard health care providers and a lot to do with excessive paperwork and resistance from hospitals, opponents of such requirements say.
Kumar, who is also a board member for Physicians for Reproductive Health, was working as a physician in Texas in 2015 when the Supreme Court took up Whole Woman’s Health v. Hellerstedt, a case concerning a Texas law nearly identical to the one at question in Louisiana; he knows firsthand how cumbersome it is for doctors to obtain those admitting privileges.
“The process is a lot of paperwork, a lot of time and a lot of resources. Over those perhaps two years that I had them, just in case I needed to comply with that law ... I did not need to use them one time,” he said.
Hospitals are hesitant to give out admitting privileges for a number of reasons, Erenberg added.
“I think the hospitals are concerned about there being a public backlash and having protesters show up,” she said, and they don’t want to “appear to weigh in on on the issue of abortion in general” by giving out admitting privileges to abortion providers. And private hospitals, she added, are often affiliated with religious institutions that morally oppose abortion.
Hospitals often set up impossible-to-meet benchmarks for outside OB-GYNs seeking admitting privileges. When a federal judge struck down a similar law in Wisconsin in 2015, he pointed to examples of hospitals rejecting doctors because they wouldn’t be likely to admit a minimum of 20 patients a year and because they didn’t meet the OB-GYN department’s requirement of having delivered 100 babies within the last two years.
There’s already a clear example of the effect this would have in Louisiana. Barriers on abortion providers caused the number of Texas clinics offering the procedure to drop from 40 to 20 before the Supreme Court struck down that state’s law in 2016.
The Supreme Court didn’t say why it decided to take up such a similar law again, but there’s one key difference at play this time: Justice Anthony Kennedy, who cast the decisive fifth vote in the Texas case, has retired and been replaced by President Donald Trump’s appointee Brett Kavanaugh, whose position on the Louisiana law is pretty clear. In February, he wrote the dissent against blocking the Louisiana law from going into effect while it played out in the courts, saying abortion providers should try harder to obtain admitting privileges.
There are already far fewer abortion providers in Louisiana than in Texas: Only one doctor at one clinic currently meets the admitting requirement.
And therein lies the great irony of the law before the Supreme Court: Leaving people with fewer abortion providers forces them to delay the procedure, either because of the wait time to see that one doctor or the time it takes to find the time and money to travel out of state. While the risk of complications from abortion at any gestational stage is extremely small, the risk increases the longer a pregnant person has to wait.
Meanwhile, lawmakers in several states ― including Louisiana ― are actively attempting to block abortions at six weeks of pregnancy, making the added wait time that comes with an admitting privileges law even more damaging to reproductive rights.
“We know from rigorous studies that barriers to access abortion care in a timely manner create harm, rather than actually increasing the safety profile,” Kumar said. “When laws that are masked as promoting the health and safety of our patients are actually harming them, that’s when I think a lot of us become concerned.”
Oral arguments in June Medical Services v. Gee will likely begin in the Supreme Court in early 2020.