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Will the Roberts Court overturn Roe v. Wade?: Part III

In this last installment of our three-part series on reproductive health cases in the lower federal courts, we look at challenges to state laws that place restrictions on abortion providers, defund Planned Parenthood, restrict insurance coverage for reproductive health services, and restrict access to Plan B. Only time will tell if any of these cases will end up before the Court. If they do, will the Roberts Court take the opportunity to overturn Roe v. Wade?

Placing undue restrictions on abortion providers

According to the Supreme Court, a state cannot impose an undue burden on a woman seeking to terminate her pregnancy. However, states have been trying to circumvent this ruling by heightening restrictions on abortion providers.

On July 1, federal District Judge Daniel Jordan temporarily blocked a Mississippi law that would have required an OB-GYN who performs abortions to have hospital privileges, even though doctors who perform abortions are regularly denied hospital privileges in the state. As a result of Judge Jordan’s ruling, Mississippi’s only abortion clinic was able to remain open for the time being.

In Louisiana, a strict liability law was enacted to target abortion providers with a different malpractice standard than applies to other doctors in the state. Under this law, doctors who perform abortions could be held liable for malpractice regardless of whether the doctor acted negligently or was otherwise at fault for any harm. Abortion providers were also excluded from the state-run medical malpractice fund, leaving them particularly vulnerable in the face of a malpractice claim. In Hope Medical Group for Women v. LeBlanc, federal District Judge Helen Berrigan held in March that the Louisiana law placed an undue burden on a woman’s right to have an abortion and violated the Equal Protection clause because it treated abortion providers differently from other medical providers. The court found that the law was designed to scare doctors away from providing abortions in Louisiana.

Defunding Planned Parenthood’s non-abortion services

As we speak, Texas is trying to defund Planned Parenthood’s family planning and health services, even though this arm of the organization is separate from its abortion services. After the Texas Health and Human Services Commission decided to defund Planned Parenthood, the organization sued under § 1983 and the First and Fourteenth Amendments. On April 30, federal District Judge Lee Yeakel enjoined the state’s action in Planned Parenthood v. Suehs. On August 21, the Fifth Circuit lifted the injunction, finding that Planned Parenthood was unlikely to prevail in its claims, leaving the state free to withhold funds pending the October trial scheduled in the matter.

Denying health insurance coverage for reproductive health services

In a clever act to curtail abortions, Kansas enacted a law that prohibits insurers from covering abortions. In March, federal District Judge Julie Robinson held that the ACLU of Kansas and Western Missouri had a cognizable claim under the Fourteenth Amendment’s Due Process and Equal Protection clauses. In ACLU v. Praeger, the ACLU argued that the Kansas law would even limit access to abortions that women needed to protect their own health or because of a pregnancy that posed a severe fetal anomaly or was caused by rape or incest. The court found that having to pay out-of-pocket for an abortion placed an undue burden on women and allowed the ACLU’s claims to proceed.

Denying access to Plan B

Whether or not pharmacists can be required to provide Plan B has been challenged in several states. In Washington State, lawmakers passed a law requiring pharmacists to dispense anti-contraception pills. But in February, federal District Judge Ronald Leighton held in Stormans v. Selecky that the law was unconstitutional based on rather suspect reasoning. The court found that the Washington law was unconstitutional under the Free Exercise clause of the First Amendment because it targeted religious conduct, and unconstitutional under the Equal Protection clause of the Fourteenth Amendment because it did not apply to all citizens regardless of their religious affiliation. The end result of the court’s decision is that women in Washington State are being denied access to Plan B.

The future of a woman’s right to choose

As we approach the 40th anniversary of Roe v. Wade, anti-choice activists seem to be revving up their efforts to restrict a woman’s right to choose on a state-by-state basis. State legislatures have become bolder in trying to sidestep Casey’s “undue burden” test by incrementally restricting a woman’s right to choose. Once again, the federal courts must intervene to reinforce what the Supreme Court said definitively in 1973: that a woman’s right to choose an abortion is a fundamental right under the Constitution.