Upholding the Louisiana Abortion Law Would Shred the Supreme Court's Credibility on the Constitution—and on Race | Opinion

Tomorrow, the Supreme Court will hear arguments in the case of June Medical Services v. Russo. While the name of the case may not be widely known, the issue raised has been a centerpiece of partisan politics for half a century—namely, abortion rights. If the Court upholds the Louisiana law at issue, requiring doctors performing abortions to obtain admitting privileges at nearby hospitals, only one doctor at a single clinic would be permitted to provide abortions in the entire state of Louisiana. This result will be devastating to the women of Louisiana, most particularly Black women. And, of equal importance, such a ruling will mark the death knell of the Supreme Court's credibility as an institution and protector of the rule of law.

Forty-seven years ago, the Supreme Court upheld a woman's constitutional right to terminate her pregnancy. Twenty-eight years ago the Supreme Court prohibited laws that impose an unconstitutional undue burden upon a woman's ability to terminate her pregnancy. June Medical threatens these precedents by giving states carte blanche to erect insurmountable barriers to abortion access with regulations that burden both physicians and women. The right to have an abortion would be rendered meaningless if states can prevent women from accessing those services.

Worse, ruling in Louisiana's favor would be an overt signal from the Court that the rule of law is in serious jeopardy. Just four years ago, in a 5-3 opinion, the Supreme Court struck down a Texas law that is identicalto the Louisiana law now before the Court. In doing so, the Court applied the "undue burden" test and found that the Texas law provided no health benefits to women but imposed an undue burden on women seeking abortions. The rule of law requires a lower court to adhere to the rulings of a higher court. It also requires the high court to adhere to its own precedents unless changes in society or the law dictate that an abrupt change in the law is warranted. There are no circumstances here that would satisfy this test. Nevertheless, this rule was blatantly ignored by the appellate court in the June Medical case; and, today, 207 overwhelmingly Republican members of Congress are calling on the Court to ignore these precedents and overturn Roe v. Wade. However, departing from Roe and its progeny would be a lawless act flying in the face of these bedrock principles.

Also important, however, is a closer look at the undue burden test in this case. Who is it that will suffer disproportionately if the Louisiana law is upheld? The evidence in this case reveals, beyond doubt, that the victims of this law—should it be permitted to take effect—are poor Black women. These women are not members of Congress, their voices are not often heard in the public discourse, and they do not contribute heavily to political campaigns. But I, and many others, have beseeched the Court to hear them as they will suffer most from an adverse ruling.

There is no question that the Louisiana law will most heavily burden Black women. Here are the most relevant facts. Abortion is a constitutional right. As the Court found in Whole Woman's Health but four year ago, the Texas admissions privilege law infringed on that right by erecting a particularly high barrier to abortion access for poor, rural, or disadvantaged women. Arguably, women in Louisiana fare even worse than those in Texas. Louisiana is the third poorest state in this country and thirty-three percent of Black women there live below the poverty line. Thirty-five percent of Black women in Louisiana work in service jobs: one of the highest percentages in the country and twice the rate of white women in the state. Because of this, it is often very difficult to arrange time off, and rarely with pay. Because Black women in Louisiana (61.2 percent of those who accessed abortion in 2018) are disproportionately low-income, the costs of transportation, time off from work, and childcare can render intra-state travel to an abortion clinic financially and logistically unattainable. For example, 48 percent of the residents of East Carroll Parish live in poverty, but would be forced to travel 260 miles to the only remaining clinic should this law be enforced.

Abortion access under these conditions would be impossible even for Black women who live above the poverty line. In 2018, this group's median annual income was just $27,058, compared to $37,485 for white women, and $56,843 for white men. Even if a woman were to somehow scrape together the funds to travel to a distant clinic, she would likely face a host of dire financial consequences, including an inability to pay rent or purchase food—a dramatic example of how income inequality seriously undermines Black women's ability to exercise their constitutional rights. If upheld, this law will render abortion access nearly impossible for low-income women, who are disproportionately Black. Moreover, these facts say nothing of the myriad ways, in which forcing a woman to bear children continues the unending cycle of poverty.

Constitutional rights should not be available only to the economically privileged. What kind of a country do we want and what are the values of the country in which we live? The Supreme Court will be required shortly to answer these question. It is my hope, and the hope of millions of Americans who support a woman's right to choice, that the Court will provide the answer that will permit us to continue to believe in the rule of law and in our democracy.

Shira A. Scheindlin is a former United States District Judge in the Southern District of New York. She is the co-chair of the Board of the Lawyers' Committee for Civil Rights Under Law.

The views expressed in this article are the author's own.​​​​​