After the Latest Supreme Court Ruling on Abortion, the Women’s Health Protection Act Is More Important than Ever
In June Medical Services v. Russo, a plurality of the U.S. Supreme Court struck down a Louisiana admitting privileges requirement for abortion providers that would have devastated abortion access in the state. While undoubtedly a win for the Louisiana clinics that can continue providing care—and all of the patients they serve—the ruling does not alter the reality that access to abortion in the United States is highly dependent on where someone lives and the resources available to them.
The Supreme Court decision includes a troubling opinion from Chief Justice John Roberts essentially inviting antiabortion lawmakers to double down on restrictive policies that cut off access to abortion—an invitation that, if accepted, will only serve to exacerbate existing disparities in access. If experience has taught us anything about antiabortion zealots, it is that they will always find another way to get between pregnant people and the care they need.
That is why the Women’s Health Protection Act (WHPA) is as necessary today as it was before the June Medical Services decision—and even more so. Congress must take action to put an end to medically unnecessary restrictions and bans on abortion, and WHPA is a critical part of that work.
Antiabortion Efforts Escalate
State lawmakers hostile to abortion have sought to undermine the constitutional right to abortion and impede access to care ever since Roe v. Wade was decided in 1973. These efforts have escalated over the past decade: Since January 2011, states have enacted more than 450 new abortion restrictions, constituting nearly 40% of all restrictions on abortion enacted since the beginning of 1973.
One trend that emerged in the years immediately following the 2010 midterm elections was the proliferation of clinic shutdown laws thinly veiled as safety measures. When the Supreme Court struck down two prominent examples of these laws in Whole Woman’s Health v. Hellerstedt in 2016, the decision was a clear victory for abortion rights, but the reprieve was only temporary.
Antiabortion activists and lawmakers immediately pivoted to other campaigns, focusing on restrictions that were less about shutting down clinics and more about interfering in the practice of medicine and the patient-provider relationship. In their rush to erect roadblocks to abortion, lawmakers imposed and extended waiting periods before abortion care, forced providers to deliver biased and inaccurate counseling, and mandated specific procedures such as ultrasounds.
The retirement of Justice Anthony Kennedy in 2018 ushered in another phase of antiabortion policymaking. Replacing him with Brett Kavanaugh tilted the balance of the Court against abortion rights, and state lawmakers around the country quickly dropped any remaining pretenses about their end goal: In 2019 alone, state legislatures (primarily across the South, Midwest and the Plains) enacted 58 abortion restrictions, 25 of which would ban all, most or some abortions. Lest any doubt remain about the cruel lengths to which antiabortion policymakers are willing to go, nearly a dozen state governors also sought to shut down abortion care as part of their initial responses to the COVID-19 pandemic.
As the decade since the 2010 elections comes to a close, the state and region someone lives in determines whether their access to abortion is supported or thwarted by government policies—a gross miscarriage of justice that hollows out the promise of Roe v. Wade for many people. The cumulative impact of restrictive policies falls hardest on communities that already face the greatest obstacles accessing health care, including people living on low incomes, people of color, young people, LGBTQ+ people, immigrant communities and rural communities.
Moreover, the decision in June Medical Services serves as a troubling harbinger of legislative and judicial action to restrict access to abortion in the years ahead. The lack of a clear majority opinion, in and of itself, will embolden antiabortion lawmakers around the country. Adding insult to injury, Chief Justice Roberts carefully conveyed his desire to weaken—or even abandon—the undue burden standard used by the Court to evaluate abortion restrictions. In doing so, he essentially invited opponents of abortion to double down on cruel and devastating abortion restrictions, implying they need only present the Court with different facts or laws in the future—anything he can more easily differentiate from Whole Woman’s Health than the Louisiana case.
We are facing a grim reality: Disparities in access to abortion are going to get worse, not better, unless Congress takes decisive action.
What WHPA Does
The Women’s Health Protection Act would protect pregnant people’s access to abortion—whether someone lives in California, Texas, Indiana or Maine—by establishing federal statutory rights for providers to provide and patients to receive abortion care free from medically unnecessary restrictions and bans. The bill explicitly protects against some of the most common and burdensome restrictions favored by antiabortion lawmakers, including:
- Previability bans: It is unconstitutional for states to ban abortion prior to viability, but that has not stopped state lawmakers from trying. In addition to bans based on gestational age, lawmakers have imposed bans on a specific method of abortion and bans based on someone’s reason for seeking abortion care.
- Mandatory medical procedures: Forcing patients to undergo medical tests or procedures, such as an ultrasound, when they are not medically indicated is demeaning and unethical and can increase the cost of abortion care.
- Medically inaccurate counseling: State requirements that abortion providers give patients inaccurate or false information about abortion intrude on the provider-patient relationship and infringe patients’ rights to receive relevant, accurate and unbiased information prior to obtaining medical care.
- Telemedicine abortion restrictions: Medication abortion can be safely and effectively administered via telehealth, which can help extend care to underserved communities and increase patient privacy and comfort. That is precisely why opponents of abortion have sought to ban the use of telemedicine for abortion.
- Targeted Regulation of Abortion Providers (TRAP): Admitting privileges requirements for abortion providers, like the Louisiana law struck down in June Medical Services, are just one example of the many ways states have singled out abortion providers with requirements that are burdensome, costly, difficult to comply with and unnecessary for patient safety or health.
- Forcing extra trips: Requirements that force patients to make medically unnecessary in-person visits to a clinic or health care facility prior to receiving abortion care create additional burdens and barriers, including increased travel time, transportation costs, time off from work and child care.
In addition, recognizing that antiabortion activists and lawmakers will continue to seek out new ways to restrict abortion care, WHPA would also guard against policies that are the same or similar to those explicitly barred by the bill, or that operate similarly by singling out abortion care with restrictions that impede access. To help courts assess these types of policies, the bill lays out a number of factors for consideration, including whether the restriction is reasonably likely to cause delays in accessing care or result in a decrease in availability of abortion services in the state or region. It would also require courts to take into account the cumulative impact of applicable abortion restrictions.
Congress Must Act
With so many barriers to timely, affordable abortion care in place around the country, supportive state legislatures can and should make every effort to ensure that abortion is available and accessible in their jurisdictions. However, supportive states alone cannot solve this problem or guarantee that everyone in the country has meaningful access to the constitutional right to abortion.
Congressional action is urgently required to put an end to the relentless march of oppressive state laws restricting abortion, and to ensure that the ability to get abortion care does not depend on someone’s income or zip code.
To be clear, equitable access to abortion will only be possible when lawmakers enact a range of policies to guarantee that everyone has access to timely, affordable care. In addition to passing WHPA, Congress must ensure that people across the country can afford the care they need, regardless of their income or source of health insurance, by lifting racist and discriminatory abortion coverage bans like the Hyde Amendment. Congress must also take action to ensure that young people can access abortion care free from unnecessary and burdensome restrictions that require involvement of their parents. Such policies deny young people’s bodily autonomy and can result in added delays and stress.
For now, these steps can and must be taken in the U.S. House of Representatives, where a majority of legislators profess support for abortion rights—support that must be turned into clear, decisive action lest it ring hollow. Fortunately, many of the next steps are already at their fingertips, including the Women’s Health Protection Act.