June Medical Services v. Russo

To protect women, Louisiana seeks to bring abortion clinic standards in line with other surgical facilities.

In response to revelations of the shoddy standards at Kermit Gosnell’s abortion clinic, which resulted in the death of a woman who came in for an abortion, Louisiana passed HB 60, a law to protect women by requiring that abortion clinics meet the same standards as other surgical centers in the state. The law passed with bipartisan support. One of the requirements for surgical centers in Louisiana is that all doctors must have admitting privileges at a hospital with 30 miles of the surgical center. This law protects women by ensuring a continuity of care when complications arise. 

Abortion clinics sue Louisiana for passing standards protecting women’s health.

A group of abortion clinics and abortionists sued the state, arguing that by requiring them to have admitting privileges, the state was creating an undue burden on their patients seeking abortions. After a trial court ruled in favor of the clinics, the Fifth Circuit reversed, holding that the clinics failed to prove that their doctors could not meet the requirements of HB 60. The clinics filed an appeal to the U.S. Supreme Court, arguing that the Fifth Circuit erred by holding that they had not met their burden to establish they could not obtain the necessary privileges. The State of Louisiana counter-appealed, arguing that the clinics lack standing to challenge the law on behalf of their patients. 

CLS explains to the Supreme Court that HB 60 allows hundreds of doctors to perform abortions who make the private choice not to perform abortions.

The U.S. Supreme Court granted cert and heard oral arguments on March 4, 2020. CLS filed an amicus brief arguing that because the question involves a woman’s right to abortion, and not a clinic’s right to perform abortions, the proper question is how many doctors are eligible to perform abortions under the law. CLS used available data to show that at least 400 doctors in Louisiana are qualified to perform abortions under HB 60, vastly more the six doctors that met the entire state’s demand prior to HB 60. Accordingly, the law does not present an obstacle to women seeking abortions. CLS also argued that the large fraction test introduced in Planned Parenthood v. Casey had the same problems of arbitrary application that caused the Court to limit the Lemon test in American Legion v. American Humanist Association. The Court is likely to issue its ruling in June. 

Importance:  States should be allowed to place common sense qualifications on abortion clinics to protect women.  Such restrictions do not create an undue burden on abortion access where sufficient doctors are eligible to perform abortions but make the private choice not to do so.