Share All sharing options for: No matter what the Supreme Court decides, abortion opponents have already won

WASHINGTON, DC — Standing in front of the US Supreme Court on Wednesday morning, Dennis McKirahan was in a hopeful mood.

“It’s a great day,” he said, glancing at the blue sky. “The sun is shining in me and outside.”

He and around a dozen other activists were with the group Shofar Call International, a Christian group that blows a horn typically used in Jewish ceremonies called the shofar as part of anti-abortion demonstrations and religious events. “In Hebrew the Shofar is also referred to as the Bat Kol or the Voice of Heaven,” the group’s website states. “When the enemy hears the Voice of Heaven being proclaimed in the earth, he trembles in fear.”

On Wednesday, the horns had the effect of partially drowning out the speakers in the abortion-rights rally, organized by the Center for Reproductive Rights and other groups, taking place across the street.

In fact, the sidewalks outside of the Supreme Court were bustling with hundreds of activists on both sides of the issue shouting and waving signs on the morning justices were to hear oral arguments in a case that has the potential to transform abortion law in America.

June Medical Services v. Russo concerns a Louisiana law requiring abortion providers to have admitting privileges at a local clinic. Louisiana legislators and abortion opponents say the measure is meant to protect patients. But abortion-rights advocates argue that such laws have no medical purpose and are simply aimed at creating more red tape to ultimately shut clinics down. And if the Supreme Court upholds the Louisiana law, clinics not just in Louisiana but around the country could close as a result.

Restrictions in Louisiana and elsewhere are “just pushing abortion out of reach for people, and specifically for people who are already struggling to make ends meet,” Ravina Daphtary, director of state strategies at the abortion-access advocacy group All* Above All, told me outside the courthouse on Wednesday.

While the Court won’t issue a decision in the case until this summer, the optimism among anti-abortion activists — and the concern among abortion-rights supporters — on Wednesday reflected a larger reality: In many ways, abortion opponents have already won when it comes to restricting the procedure around the country. In the last 10 years, a wave of new laws have closed clinics across the South and Midwest — Louisiana today has just three clinics, and six other states have just one.

Meanwhile, President Trump has repeatedly delivered on anti-abortion priorities, including enacting a rule last year barring health care providers that refer or provide abortions from getting federal family planning funds.

Overall, McKirahan believes the country is moving toward an end to abortion: “there’s great things happening,” he said, “because God is moving people and stirring their hearts to change.”

It’s one thing both abortion-rights activists and abortion opponents in front of the Supreme Court on Wednesday agreed on: While Roe v. Wade remains the law of the land for now, the landmark 1973 decision is hanging by a thread. And regardless of what happens in June Medical Services v. Russo, that thread is getting thinner and thinner.

Abortion opponents are essentially getting a redo of a 2016 case

In a way, the fact that the Louisiana law is before the Supreme Court again at all is a victory for abortion opponents. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down a nearly identical Texas measure. At that time, the Court found that the Texas law did not provide enough benefit to patients to justify the barriers to access it created — namely, the closure of more than half the clinics in the state.

That decision slowed states’ efforts to pass admitting-privileges laws. But Louisiana had already passed one, in 2014. Hope Medical Group (whose corporate name is June Medical Services) challenged the law, but in 2018, the Fifth Circuit Court of Appeals upheld it. Hope appealed that ruling to the Supreme Court, and last year, the Court agreed to take the case.

Essentially, abortion opponents in Louisiana were given an opportunity for a redo of Whole Woman’s Health. But this time, thanks to Trump’s nomination of Justices Neil Gorsuch and Brett Kavanaugh, many believe the majority of justices on the Court take a favorable view of abortion restrictions.

Hope and many abortion-rights advocates argue that the Fifth Circuit violated Supreme Court precedent by upholding the Louisiana law — that, in essence, we shouldn’t be here at all.

“The feeling in the courtroom was déjà vu all over again,” Nancy Northup, president of the Center for Reproductive Rights, which is arguing the case on behalf of Hope, told reporters after the oral arguments on Wednesday. “It is not right that we have to be here re-fighting a legal battle that we have already won.”

Some of the justices seemed to feel a sense of déjà vu as well. The state of Louisiana argues that admitting privileges are important in part because requiring them is a way of credentialing doctors, weeding out the ones who are underqualified. But Justice Elena Kagan noted that the Court had already rejected that argument in Whole Woman’s Health, finding that in Texas, admitting privileges are granted or denied for reasons having nothing to do with whether a doctor is qualified (often abortion providers are unable to obtain privileges simply because so few of their patients ever go to a hospital — which is one reason why abortion-rights advocates say these requirements are unnecessary).

“It was true in Texas and it’s true here,” Kagan said. “It seems that Whole Woman’s Health precludes you from making this credentialing argument, doesn’t it?”

Even Chief Justice John Roberts, seen on today’s Court as a swing vote on abortion issues, seemed skeptical of the state of Louisiana’s case, as Vox’s Ian Millhiser reports. Louisiana argues that its law does not violate Whole Woman’s Health because the medical and legal landscapes are different. But Roberts twice seemed to question this argument, asking at one point why each state should be treated differently if the purported benefits to patients of admitting privileges laws (which the Court had previously found were not enough to justify the burdens) are the same everywhere.

Justice Samuel Alito, however, focused his questions on another issue in the case: whether clinics like Hope should be allowed to challenge abortion laws, or whether patients should be the ones to do so. The state of Louisiana and anti-abortion groups have argued that clinics and doctors just want to avoid regulation and don’t have their patients’ best interests at heart, and Alito seemed sympathetic, peppering Julie Rikelman, the attorney arguing the case for the Center for Reproductive Rights, with questions about situations where doctors’ and patients’ interests might be in conflict.

If the justices do decide to uphold the Louisiana law, two of the state’s remaining clinics, including Hope, could close. And abortion-rights advocates fear more would follow around the country, as more states pass admitting-privileges laws and other restrictions on clinics. Meanwhile, if the Court decides that abortion clinics don’t have the standing to challenge abortion laws, those laws could become much harder to fight — and more could stay on the books, even if they might be unconstitutional.

No one will know exactly what the justices are thinking until they issue a decision this summer, and many abortion-rights advocates hold out hope that the Court may strike down the Louisiana law.

“We were here before, four years ago, discussing the very same law and were able to successfully show the true intent of these terrible bills,” Daphtary of All* Above All told me.

But many in the anti-abortion movement are bullish about Louisiana’s chances. “We’re cautiously optimistic,” Alexandra Seghers, director of education at the group Louisiana Right to Life, told me, saying that Louisiana was “such a different landscape” from Texas.

“And of course the Supreme Court is a different landscape,” she added.

And while some heard Roberts’s questions as a bad sign for the Louisiana law, Clarke Forsythe, senior counsel for the group Americans United for Life, which filed an amicus brief in the case, told me by phone that he “did not sense any skepticism by the Chief Justice” on Wednesday.

The Court is likely to make a narrow decision in the case, he said — there’s no indication that the justices will use it to overturn Roe v. Wade, the decision that established the right to an abortion in America.

But the decision could still have an impact on abortion laws around the country. “In prior cases when the Court has upheld an abortion regulation, many states have moved ahead to pass similar regulations,” Forsythe said.

This case, and this law, are likely to be no different.

Abortion restrictions have whittled away access around the country

But anti-abortion groups’ optimism — and abortion-rights advocates’ fears — go far beyond June Medical Services v. Russo.

While abortion remains legal in all 50 states, it’s becoming harder and harder to access, especially for low-income Americans. “Even if the Court strikes down the Louisiana law, there are still going to be a lot of people who still don’t really have access to abortion,” Monica Edwards, federal policy manager at the group Unite for Reproductive & Gender Equity (URGE), told me as she watched the abortion-rights rally on Wednesday.

A lot of the reason for that is restrictions on abortion doctors and clinics, which have proliferated since Republicans took control of statehouses around the country in 2010. Since then, the South and Midwest have lost more than 80 clinics, leaving many people hundreds of miles from the nearest facility where they can get an abortion.

In the years since 2010, many states have also passed laws requiring an ultrasound and a 24-hour waiting period before a patient can get an abortion, making the procedure more time-consuming and expensive for patients who now have to take two long trips to a clinic instead of one. Those laws “really keep the most marginalized — specifically people of color, queer and trans folks — out of the ability to access care,” Edwards said.

Meanwhile, since the election of Trump, states around the country have imposed blanket bans on abortion, with six states last year banning it six weeks into pregnancy, or even earlier. All of those laws have been blocked in court, but states around the country continue to move to restrict abortion.

Florida, for example, recently passed a law requiring minors to get parental consent before an abortion, and legislators in Utah have proposed a bill that would ban abortion automatically if Roe is overturned. Eight states already have similar laws on the books.

“They’re coming in fast because God is moving,” McKirahan said of the measures in Florida, Utah, and elsewhere.

Supporters of abortion rights still see signs of hope. Most Americans understand that access to abortion “is a legal right right now and should stay that way,” Jessica Crabtree, who was attending the abortion-rights rally, told me. Indeed, a majority of Americans, including Republicans, support leaving Roe v. Wade in place.

“I am concerned that we are heading in a direction that’s going be taking access away from people,” she said, “but I think it’s more likely with crowds like this and with support like this that’s growing, that we won’t actually head in that direction.”

But abortion-rights groups and some Democratic legislators are also preparing for a post-Roe reality — one that, in some states, has already essentially arrived. Those preparations include laws that guarantee the right to an abortion if Roe is overturned, as well as efforts to remove legal penalties for self-managed abortion so that people who do the procedure themselves with medication or herbs are not prosecuted later.

While June Medical Services is unlikely to be the case that does it, many now believe that a showdown over Roe is all but inevitable.

“The expectations of the country are clearly moving in the direction of expecting the Court sooner or later to send the abortion issue back to the people,” Forsythe said. “The Court will sooner or later have to revisit Roe v. Wade.”

And when that happens, the odds are good that Kavanaugh and Gorsuch will still be sitting on the Court. If Trump is reelected in November, he could have the chance to nominate even more justices — and he has promised to pick justices who would overturn Roe.

On abortion, “a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong,” Justice Stephen Breyer said during Wednesday’s oral arguments. “I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”

But advocates on both sides of the issue seem to agree on one thing: as Kate Doyle, attending the rally as part of the reproductive-rights group If/When/How, put it, “Roe is experiencing a death by 1,000 cuts.”

And in many ways, for many Americans, it’s already dead.

Melissa Lyttle is an independent photojournalist based in Washington, DC.