JURIST Guest Columnist Lynn M. Paltrow, Executive Director of National Advocates for Pregnant Women, writes about the Supreme Court's upcoming June v. Gee case and how it continues a pattern of inconsistency on the topic of abortion...

This year, the U.S. Supreme Court will consider June Medical Services v. Gee, the first abortion case since Justices Gorsuch and Kavanaugh became members of that court. The Court will rule on the constitutionality of a Louisiana law that is identical to a Texas law struck down by the Supreme Court in 2016. In Whole Woman’s Health v. Hellerstedt, the Court held that a Texas law requiring physicians who perform abortions to have admitting privileges at a local hospital was unconstitutional because it imposed a substantial and undue burden on women seeking abortions. Three years later, the U.S. Court of Appeals for the Fifth Circuit ignored this precedent and reached the opposite conclusion, deciding that an identical admitting-privileges law in Louisiana did not impose a substantial or undue burden.

Contradictory? Yes. But these rulings are also in keeping with a Court that has never arrived upon a consistent view of the rights of the 51% of people who have the capacity for pregnancy – the precursor to abortion. Stories from two other Supreme Court cases illustrate this.

The first is from Roe v. Wade. The named plaintiff, Jane Roe, was pregnant and living in Texas when she brought a lawsuit to challenge the constitutionality of the Texas law that made it a crime to procure an abortion. Roe, however, was not alone. A couple, called Mary and John Doe, also wanted to challenge the law.

Like Jane Roe, this couple wanted to see Texas’ abortion law declared unconstitutional. According to their complaint, Mrs. Doe was suffering from a neural-chemical disorder and her physician had advised her to avoid pregnancy until her condition had materially improved. Pursuant to medical advice, she had discontinued use of birth control pills (that were at the time manufactured with dangerously high levels of estrogen). If she did become pregnant, she wanted to terminate the pregnancy by an abortion performed by a “competent, licensed physician under safe, clinical conditions.”

The Supreme Court denied the Does the right to sue in the federal court system. According to the Court, this married couple did not have standing because they had no actual injury. Rather, they had “only an alleged ‘detrimental effect upon [their] marital happiness’ because they are forced to ‘the choice of refraining from normal sexual relations or of endangering Mary Doe’s health through a possible pregnancy.’” As the Court explained, “Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine.”

In other words, the Does’ injuries were speculative, not real or actual.

Eight years later, however, the Supreme Court saw the possibility of pregnancy in quite different terms when it considered the constitutionality of a California statutory rape law that penalized underage sexual intercourse for males but not females.

In Michael M. v. Sonoma County, a 17-year-old boy, Michael M. and, had sexual intercourse with a 16-year-old girl. The boy alone was charged with statutory rape. Michael M. challenged the law’s constitutionality as a violation of his right to equal protection.

In a complete about-face from the rationale used to deny the Does their day in federal court, the Court in Michael M. held that the possibility of pregnancy was a profoundly influential, ever-present factor in a woman’s life; in other words not “speculative.” Although the 16-year-old girl that Michael had sex with did not get pregnant, the Court saw pregnancy and its potential consequences including abortions, the medical risks associated with pregnancy, and the social consequences of childbearing as so concrete that the Court concluded that the mere possibility of pregnancy provided a substantial deterrent to girls under 18 from engaging in sexual intercourse. And since, according to the court, no similar “natural sanctions” deter males from having sex, the Court upheld the male-only criminal sanction because it served to roughly “equalize” the deterrents on both sexes. Specifically, in Michael M., the Court concluded that the risk of pregnancy and its consequences are so definite and substantial that they are equivalent to the threat of arrest, conviction and a prison term of 4 years.

Considering Michael M. and the Court’s ruling on standing in Roe, we should not be surprised by the Court’s inconsistency in deciding whether laws limiting access to abortion create undue burdens or no burden at all. We should remember that June Medical Services v. Gee will be decided not only by a court with two new members committed to overturning Roe v. Wade, but also by an institution that hasn’t made up its mind whether the capacity for pregnancy is an ever present threat to women’s freedom (like a term of incarceration) or is a dismissible and inconsequential possibility with little or no impact on a woman’s life (or, for that matter, her partner’s).

Lynn M. Paltrow is the Executive Director of National Advocates for Pregnant Women.

Suggested citation: Lynn M. Paltrow, June v. Gee: When the issue involves pregnancy and abortion inconsistency should come as no surprise, JURIST – Professional Commentary, February 16, 2020, https://www.jurist.org/commentary/2020/02/lynn-paltrow-june-v-gee/

This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org