Trellis Blog - Legal Analytics

A New Louisiana Law Could Undo Roe v. Wade and Decades of Choice. Is California next?

Feb 18, 2019 8:00:33 AM / by Jennifer

roevwade

Between the White House shutdown, the Polar Vortex, and a sad year for Super Bowl commercials, you might have missed that a little case called Roe v. Wade could be overturned very soon. Yes, we do mean Roe v. Wade: the 1973 landmark case that legalized abortion and empowered women’s right to choose nationwide.

In the never-ending saga of What Will Trump Do Next to Women’s Reproductive Rights?, Act 620 is the latest law to appear before the Supreme Court of the United States (SCOTUS). Depending on how our conservative majority SCOTUS reacts, Act 620 could change the future of Roe v. Wade and women’s access to abortion and other reproductive health care nationwide.

Lucky for us in sunny California, we enjoy a plethora of state laws that codified the right to choose years ago. Even if SCOTUS and POTUS teamed up with Ultron himself to dismantle reproductive rights for women all over the U.S., they can’t just change California law. (More on that later.) But be forewarned: there are a multitude of other ways the federal government can restrict abortion access, patient rights, and reproductive health care practices, even in California. How? Let’s dive in.

What’s the big deal around Louisiana’s Act 620 anyways?

From Louisiana comes a new law called Act 620. This statute requires Louisiana doctors who perform abortions to have admission privileges at a hospital within 30 miles of their clinic.

Interestingly, Act 620 is almost word-for-word identical to a prior Texas statute. In a 2016 decision, SCOTUS struck the Texas statute down in a case called Whole Woman’s Health v Hellerstedt. At the time, they cited that it was an “undue burden” on the constitutional right to abortion access. Basically, it was an additional restriction that wouldn’t actually improve women’s health, and that’s a no-no.

But that was then. In 2016, Justice Anthony Kennedy was still around to be the swing vote to strike down this law. Today, Kennedy has been replaced by none other than Justice Brett Kavanaugh, known for his commitment to a conservative stance on abortion rights. Perhaps in anticipation of the new SCOTUS slate, the Fifth Circuit decided to uphold Act 620 in June Medical Services v. Gee. This time, the circuit concluded that it would create only minor burdens for women.

Why would a situation that was an undue burden before suddenly become only be a minor burden now? #ConservativeLogic

What’s going on with SCOTUS?

Thankfully, challengers to Act 620 asked SCOTUS to stay the law while they appealed the Fifth Circuit decision in June Medical Services. By a 5-4 margin, SCOTUS accepted, which means that Act 620 is now temporarily blocked.

While the stay is a temporary victory for women’s reproductive rights in Louisiana, SCOTUS’ next big decision to make is whether to hear the appeal. Should SCOTUS decide not to take the case, the stay ends immediately, and Act 620 goes into effect. What does that mean for Louisiana? Oh, just that a third of the state’s abortion clinics will close. According to Slate, only one doctor who performs abortion services in the state has admission privileges to a hospital. Per CNN, about 10,000 women seek an abortion in Louisiana every year.

It doesn’t take a genius to do the math and figure out that’s not sustainable.

Should SCOTUS take on the case, will it follow precedent from Whole Women’s Health and strike down the Louisiana law? Or will it reverse itself, and in the process potentially overturn decades of reproductive health care protections set from Roe v. Wade?

With a conservative majority, it’s entirely possible that SCOTUS would rule to uphold Louisiana’s law. What this means more broadly speaking: it would signal that the states are free to ignore Whole Woman’s Health and pass stricter laws for abortion clinics.

More importantly, it would signal that SCOTUS is no longer enforcing Roe v. Wade, leaving it up to the states to decide what to do with all of those women seeking medical options.

What this could mean for California

As mentioned earlier, California was one of the first states in the country to legalize abortion. In a 1972 ballot initiative, California ensured the right to privacy in its constitution.

California is also one of nine states with laws that have codified a woman’s right to choose. The Reproductive Privacy Act, passed in 2002 by the state Legislature, gave California residents “the fundamental right” to an abortion, and to “choose or refuse birth control.”

As far as California rights to reproductive health care go, we’re in a pretty good place. Overturning Roe v. Wade can’t just magically change California law.

However, there are other ways the conservative SCOTUS could change abortion access, even in our state. In an article with KQED, Crystal Strait, CEO of Planned Parenthood Affiliates of California, shared a few hypothetical ways SCOTUS could restrict patient rights in California.

For example, President Trump has in the past proposed “gag rules” for clinics that accept federal Title X funds. If SCOTUS upholds these rules, doctors could be restricted from sharing medical options with their patients.

In Daniel Corona v. White Memorial Medical Center, a Los Angeles case, the court ruled that it’s not medical malpractice to not tell a patient her medical options for abortion, if the fetus is viable and if the issues that come up during the pregnancy were not lethal. Assuming more restrictive gag laws, suppose the doctor did find that the fetus was viable and that the pregnancy had issues that could be lethal? Under Daniel Corona, it would seem that the doctor is obliged to share medical options. But under gag rules, would it be medical malpractice to not advise her on her options? Or would it simply be following the law?

As another example, SCOTUS could legally redefine the meaning and scope of abortion. Even with health care services in California intact, additional rules and regulations could make it more difficult for women to seek out reproductive health care.

We’ll be watching to see how SCOTUS weighs in on Roe v. Wade over the coming months.

Written by Jennifer

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