I've written a lot about rural women's access to abortion over the years--academic writing (here, here, and here) and once in an op-ed as the case that became known as Whole Woman's Health v. Hellerstedt was argued to the Fifth Circuit in 2015. All of these writings implored advocates and courts to pay more attention to the burden of abortion regulations on rural women seeking abortion.
That finally started to happen in Whole Woman's Health v. Hellerstedt, decided by the Supreme Court in June 2016. I believe rural women finally got on the radar screen in that case because Texas provided such a great context for talking about the extraordinary distances so many women have to traverse in order to reach an abortion provider. After all, once numerous Texas abortion providers were shuttered because of inability to comply with (then) new state regulations, women in west Texas had to travel hundreds of miles each way to reach abortion providers in major population centers like Dallas-Fort Worth, Austin, and Houston. Few other providers remained available elsewhere in the state, with services in the impoverished Rio Grande Valley particularly hard hit.
In the end, advocates before the Supreme Court and, eventually, the Court itself wound up spending more time, energy and ink (well, toner cartridge) on rural women in Whole Woman's Health than in any other case to make it to the Supreme Court. As one who has advocated for more than a decade for courts to attend to the particular circumstances of rural women, I was pleased at this turn--though admittedly also a bit frustrated that my (yes, germinal) work on the issue was not acknowledged by advocates or the Court. When I appeared on Sacramento's NPR affiliate just after the Supreme Court decided Whole Woman's Health and suggested that, though women's right to abortion was much safer as a consequence of the decision, I added the caveat that a state less spatially and geophysically vast than Texas might present a tougher case for the Court. In other words, if the distances to the abortion providers were not as great as in the Lone Star State, the Court might conclude that the regulations and consequent provider closers did not rise to the "undue burden" legal standard.
Somewhat extraordinarily, just four years on, that is precisely what is happening. A Louisiana statute virtually identical to the Texas one struck down in Whole Woman's Health is under scrutiny by the Supreme Court. The oral argument in the case, June Medical Services, was heard on March 4. With the help of the (fabulous) UC Davis law librarians, I've perused the briefs and oral argument transcript and found far less attention to rural women--or the burden of distance generally--in June Medical than in Whole Woman's Health. What follows are the sum total of mentions of distance in the June Medical SCOTUS pleadings and oral arguments.
First, from the petitioner's brief (June Medical Services):
pp. 12-14:
Much like H.B.2’s effect in Texas, the district court found that two of Louisiana’s three abortion clinics (Hope and Delta) would close. Pet. App. 254a. [a clinic in New Orleans, in the southeastern corner of the state, would be able to remain open]pp. 29-30:
“If Act 620 were to be enforced, three of the five doctors”—Does 1, 2, and 6—“would not meet the admitting privileges requirement.” Id.; see also JA 704, 1315 (Doe 1); JA 377, 1318-19 (Doe 2); JA 1311 (Doe 6). Doe 5 would not meet the requirement in Baton Rouge but would in New Orleans. Pet. App. 244a- 45a, 253a-55a. And Doe 3, despite having privileges in Shreveport, would stop performing abortions because Hope [operated by June Medical] would not be a “viab[le]” going concern once Doe 1 (who provided over 70% of its abortion services) could no longer work there. Id. 156a, 256a. All told, only one provider (Doe 5) at one clinic (Women’s) would remain, to provide services for the approximately 10,000 women per year seeking abortions. Id. 255a-56a.
Just as in Whole Woman’s Health, the district court found that “fewer physicians” meant women will encounter “longer waiting times for appointments” and “increased crowding” and “will have to travel much longer distances”—burdens “which will fall most heavily on low-income women.” Pet. App. 258a, 274a. That would lead to “delays in care, causing a higher risk of complications, as well as a likely increase in self-performed, unlicensed and unsafe abortions.” Id. 260a. [emphasis added by L.R. Pruitt]
The district court here made findings showing that Act 620’s burdens would, if anything, be more severe than the Texas law in Whole Woman’s Health imposed. While the Court found that the Texas law led to the closure of about half of the state’s clinics, see Whole Woman’s Health, 136 S. Ct. at 2312, the district court found [Louisiana] Act 620 would force two of Louisiana’s three abortion clinics to close, leaving only one physician in the state who could provide care, Pet. App. 273a-74a. Consequently, 70% of women who currently obtain abortions in Louisiana would no longer be able to do so. Id. 256a.So, the June Medical petitioners are painting a picture of the burden of travel that focuses more on the overall loss of capacity in the state than it does on distance. That said, distance does matter, as indicated by that last point about the waiver of Texas's two-trip requirement--a waiver that is not part of Louisiana law.
The district court also found that the Act would impose burdens on women beyond clinic closures, including longer wait times and greater driving distances, which would lead to delay in obtaining abortions and therefore a higher risk of complications, as well as increased risk of self-performed, or unsafe abortions. Pet. App. 258a, 274a. Compare, e.g., Whole Woman’s Health, 136 S. Ct. at 2313 (relying on increased distances of 150 to 200 miles); with Pet. App. 262a (citing increased distance of 320 miles for some Louisiana women). (emphasis added) [bold emphasis added by L.R. Pruitt]
What is more, the district court noted several ways in which Louisiana women were less able than Texas women to overcome barriers to abortion access. Those included that Louisiana is the third poorest state in the country, and likely has a disproportionately higher percentage of women seeking abortion care who are living in poverty. Pet. App. 261a. Additionally, 75% of women seeking abortion in Louisiana—higher than the national average—already have at least one child, meaning a greater proportion would struggle to make childcare arrangements while juggling long-distance travel for medical services. Id. 261a-62a. And, unlike in Texas, where women living more than 100 miles from an abortion clinic are excused from the state’s otherwise mandatory two-trip law, Louisiana law has no such exception; it requires all women to make at least two trips to a provider before they can obtain an abortion, regardless of how far they have to travel. Id. 262a-63a. Compare Tex. Health & Safety Code § 141.012(a)(4); with La. Rev. Stat. § 40.1061.17(B)(3) (imposing 24-hour mandatory delay which necessitates two trips to clinic).
Second, from the respondent's/opponent's brief (State of Louisiana):
pp. 34-35:
Then there is the extensive lower court record on clinic capacity and patients’ travel distances. Because of the small number of Louisiana abortion providers, that record is far more clinic- and doctor-specific than the record in Hellerstedt. App. 40a. The panel did not need to reach that subject in detail, and Plaintiffs leave it unaddressed. But if Act 620 might lead to clinic closures, that evidence would be crucial to analyzing any resulting burdens.I admit I don't understand the State's argument that the trial court's record on clinic capacity and "patients' travel distances" is not a matter that should draw the Supreme Court's attention, but then this is an advocacy document.
In short, the error-correction Plaintiffs request would require a massive commitment of resources to a case-specific record with little clear significance beyond the facts.
And finally from the March 4 oral arguments:
MS. RIKELMAN [litigation director for Center for Reproductive Rights, representing petitioners June Medical]: And, of course, the finding of every district court that has held a trial on a similar law has been that these laws will restrict access to abortion. And here the district court found that this law would leave Louisiana with just one clinic in one state to serve about 10,000 people per year.
And that would mean that hundreds of thousands of women would now live more than 150 miles from the closest provider. And the burdens were actually more severe than this Court found in Whole Woman's Health.
JUSTICE SOTOMAYOR: Can we go to Doe 3, the doctor who had the active OB-GYN practice? He's only a part-time doctor in Hope [the name under which the June Medical Clinic operates, in Shreveport, in northern Louisiana]
MS. RIKELMAN: That's correct.
JUSTICE SOTOMAYOR: There's been much talk about his statement or findings by the district court that he was a superseding cause to the Act because he, on his own, will not practice in that -- in Hope if this law goes into effect because he would be the only doctor.
But putting that aside, he also testified -- I'm sorry -- the Hope manager testified that he only does a limited number of abortions, and without the other doctor, that
clinic would have to close.
MS. RIKELMAN: That's absolutely right, Your Honor. The district court found
that without Doe 1, the primary provider at Hope, Hope would not be a viable going concern.
So regardless of Doe 3's testimony, Hope would have to close because Doe 3 was providing fewer than 30 percent of the abortion services of that clinic.
The primary provider was unable to get privileges, and Hope would close, meaning that women living in northern Louisiana would now have to travel hundreds of additional miles, for a law that has no benefit, in order to access abortion services.
JUSTICE KAVANAUGH: Could I --
JUSTICE SOTOMAYOR: There's no dispute here about Doe 1.More from the oral argument transcript at pp. 27-29:
MS. RIKELMAN: They [the restrictions on abortion providers] serve no valid state interest. And, in fact, the district court here found that this law was a solution for a problem that didn't exist and would actually jeopardize this -- health and safety of people –[emphasis added by L.R. Pruitt]
JUSTICE SOTOMAYOR: Would this be –
MS. RIKELMAN: -- in Louisiana.
JUSTICE SOTOMAYOR: -- different if --if they did something as limited as, for example, you have to be admitted somewhere, because some -- being admitted somewhere does further credentialing benefits? But this was you have to be admitted within 30 miles. Some of these doctors were admitted further away, but
they still were credentialed by someone, correct?
MS. RIKELMAN: That's correct, Your Honor. If credentialing were the true goal of this law, the 30-mile limit would make no sense. And one of the practical real-world impacts, if this law were to take effect, is that women in the Baton Rouge area would now have to travel miles back and forth to New Orleans to see the same exact physician that they previously could have seen –
JUSTICE SOTOMAYOR: How many –
MS. RIKELMAN: -- in Baton Rouge.
JUSTICE SOTOMAYOR: -- miles from the northern -- from the Hope area?
MS. RIKELMAN: It's 320 miles, Your Honor, from Shreveport to New Orleans. And from Baton Rouge back and forth, because of the two-trip law, it's 320 miles. And, again, they would be making that trip to see the same exact physician who had been previously providing services in Baton Rouge. And that has no benefit to women's health. It will only hurt their health, which is exactly what the district court found here.
JUSTICE GINSBURG: You haven't mentioned, and it's odd, the 30 mile from the clinic, when most of these abortions don't have any complications and the patient never gets near a hospital, but if she needs a hospital, it's certainly not going to be the one near the clinic. She will be home.
MS. RIKELMAN: That –
JUSTICE GINSBURG: And so –
MS. RIKELMAN: That's exactly right, Your Honor. That's what this Court recognized in Whole Woman's Health and one of the reasons why it concluded the law is medically unnecessary, because the -- the complication rate is extremely small to begin with, but when complications do occur, it's almost always after the woman has been left the clinic.
I hope, in a future post, to write more about how commentary on the case has addressed the issue of distance--or not. For now, it is worth noting that rural women were not mentioned in these pleadings and oral arguments in June Medical though distance and travel made at least cameo appearances.
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