Dear Friends and Allies,
In the coming days, the U.S. Supreme Court will announce its decision in June Medical Services v. Russo, the first abortion case since Justices Gorsuch and Kavanaugh became members of the Court. The Court will be ruling on the constitutionality of a Louisiana law that is identical to a Texas law struck down by the Supreme Court in the 2016 case Whole Woman's Health v. Hellerstedt. In that case, the Court held that a Texas law was unconstitutional because it imposed a substantial and undue burden on women seeking abortions. The law required physicians who perform abortions to have admitting privileges at a local hospital. Three years later, when considering June Medical Services, the U.S. Court of Appeals for the Fifth Circuit ignored Whole Woman's Health, and held 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 the population who have the capacity for pregnancy - the precursor to needing an abortion. Stories from two other Supreme Court cases illustrate this inconsistency.
The first is from Roe v. Wade. The named plaintiff, Jane Roe, was a pregnant woman living in Texas when she brought a lawsuit challenging the constitutionality of the Texas law that made it a crime to procure an abortion. Roe, however, was not alone in bringing this lawsuit. A married, heterosexual couple called Mary and John Doe also wanted to challenge the constitutionality of the Texas 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 were to become pregnant, she would have wanted to terminate the pregnancy by having 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, they did not have standing because they had no actual injury. Rather, they had "only an alleged 'detrimental effect upon [their] marital happiness' because they [were] 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 rest[ed] 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 merely 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., 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 merely "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 if the Supreme Court is inconsistent in its rulings on whether laws limiting access to abortion create undue burdens or no burdens at all. We should remember that June Medical Services v. Russo 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 (akin to a term of incarceration) or a dismissible and inconsequential possibility with little or no impact on a woman's life (or, for that matter, her partner's).
Throughout history, women's capacity for pregnancy - rather than the fact that they were actually pregnant - has been used to limit their rights. For example, women have, pursuant to various past Supreme Court rulings, been denied the right to serve on juries, become lawyers, and work hours equal to those of men, again, not because of pregnancy but because of their ability to become pregnant. Given this history, women do not want their capacity for pregnancy to define or limit them. At the same time, they do not want this significant aspect of their biological and social lives to be ignored, minimized, or used, under the guise of abortion regulation, to deprive them of their civil and human rights.
We do not know what the Court's decision will be. Yet, we do know that whatever the Court decides, National Advocates for Pregnant Women will continue to do the hard work necessary to ensure that women's health is recognized and protected as human health, just as women's rights and the rights of all people with the capacity for pregnancy must be recognized and protected as human rights.
Lynn M. Paltrow
Founder and Executive Director
National Advocates for Pregnant Women
A version of these comments was originally published on Jurist.