Jurisprudence

Ladies’ Week at the Supreme Court Again

Yes, there’s an important abortion case being heard this week. But women lose when we focus too much on individual cases.

Protesters hold up signs that say things like "Keep abortion safe and legal" and "Safe abortion is a human right."
Activists demonstrate in front of the Supreme Court on Jan. 24. Oliver Douliery/AFP via Getty Images

America is in in the grips of one of those weeks I’ve come to think of as Ladies’ Weeks, wherein a major abortion case is on the Supreme Court docket (in this case, to be heard Wednesday), and women are correspondingly ramping up visibility and making plans to gather on the steps of the Supreme Court to be heard. I am, to be sure, planning to be there as well, and glad of the company, but the problem with designating Wednesday “Ladies’ Day” at the high court this year is the same problem I have when dive bars designate a Ladies’ Night every third Tuesday. Women represent more than half the voting population in this country. We shouldn’t accede to a single day to be seen at the Supreme Court, any more than we need a designated day to drink at the Sidewinder. Every day can be Ladies’ Day in America, just as every day can—and should—be Ladies’ Day at the Supreme Court. We accept tiny wins as ladies’ victories when we define the scope of women’s constitutional issues as small.

I say this only because women are frantic about Wednesday’s oral arguments in June Medical Services v. Russo, the case before the Supreme Court that raises fundamental questions about the future viability of reproductive freedom in America. They are right to be frantic. The issue, which was resolved definitively just four years ago in Whole Woman’s Health v. Hellerstedt, is whether Louisiana’s unconstitutional law, which demands that physicians who perform abortions must have admitting privileges at local hospitals, is constitutional. It’s interesting because Louisiana’s law is identical to the provision struck down in Texas in Whole Woman’s Health. So, the question isn’t really whether it’s constitutional, but whether it’s constitutional given that Brett Kavanaugh has replaced Anthony Kennedy on the Supreme Court. That’s the only question, and yet the court has not only agreed to hear the case but also to hear an expanded question about whether abortion providers may bring lawsuits on behalf of pregnant plaintiffs, as they have been permitted to do for decades. Should the court decide that from now on only pregnant women can challenge abortion restrictions, we will certainly see far fewer challenges in the future, which is only one way in which June Medical purports to be a simple lawsuit about maternal health, while acting as a poison pill that can all but eviscerate the right to choose, without ever explicitly saying so. Doing away with what’s known as “third party standing” also serves to pit abortion physicians against pregnant women in ways that will hollow out the holding in Roe and go beyond the simple admitting privileges at issue in June Medical.

As vitally important as the issues in Wednesday’s arguments may be, hyperfocusing on one, single lawsuit sets women up for the same kind of traps we see time and again from the Roberts court. Just a few weeks after June Medical, for instance, the court will rehear a case about the Little Sisters of the Poor and the contraception mandate. As was the case several years ago, when women focused on the Hobby Lobby suit and all but ignored the Little Sisters case that followed, we minimize the religious war on contraception to hyperfocus on abortion at our long-term peril. Here’s another problem with narrowing the lens to June Medical:  It also distracts from the states that slowly chip away at abortion rights by enacting TRAP laws (the targeted regulation of abortion provider laws that serve no purpose beyond shuttering clinics) as compared to the states that have passed all-out bans, which are on hold in courts around the land. In the time of Brett Kavanaugh on the bench, those moves in the states are also uniquely dangerous. The anti-choice wing at the court desperately wants us to believe that the only issue around which women should rally and organize and march this year is whether the words “Roe v. Wade is overturned” show up in the body of the final June Medical decision. But there are a million ways in which abortion, contraception, abortion funding, and women’s reproductive care are under threat by the states and the federal government, and June Medical is a part of that story but hardly all of it. What happens in Louisiana is vital, indeed, but it’s a skirmish in a larger war.

And even if we zoom out to contemplate all the assaults on women’s health at the court this year, that focus will still be too narrow. Because so many other issues on the docket, all to be decided this spring, materially affect women, children, families, and public health, too. Whether it’s the rescission of the Deferred Action for Childhood Arrivals policy that will affect tens of thousands of Dreamers, or the challenge to a New York City gun law that could change the scope of Second Amendment protections nationwide, or the case assessing the span of Title VII’s protections offered to LGBTQ and transgender workers, or the future of the Consumer Financial Protection Bureau, or the newly granted case on the future of the Affordable Care Act, almost every one of the hot-button items on the docket this term, or next, directly implicates the health of our children, the safety of our schools, and access to justice in our workplaces. It’s a lot to ask, I know, but widening the aperture to include every single issue that affects women, children, economic regulations, and public health is also a necessary part of understanding what is really at stake in June Medical.

Here is why it is so critical to keep an eye on the whole board and not just on the future of TRAP laws: Last term, Chief Justice John Roberts was feted for the Solomonic act of splitting the baby when he gave liberals a win in finding that a citizenship question could not be added to the U.S. census and then gave conservatives a win in finding that courts can no longer adjudicate partisan political gerrymanders. It required everyone to look much harder at the whole picture before we could see that the former had been an insane Hail Mary effort to suppress minority vote via pretext while the latter fundamentally changes the way America votes for the foreseeable future. The two lawsuits were not created equal, and the consequences of losing one and winning the other did not create some kind of voting rights equipoise. Gerrymanders were blessed, perhaps forever, while a bad plan to suppress minority turnout didn’t come to fruition.

So too, a tendency to focus too narrowly on the outcome of the admitting privileges law in isolation from everything else—the risk to third party standing; the risk to life-saving contraceptive care; the risk of all-out abortion bans being passed in states seeking to nullify Roe; the seating of rabidly anti-Roe, anti-IVF, anti-surrogacy jurists to lifetime appointments on the federal bench; and the wholesale assault on affordable medical care under the Affordable Care Act—is an act of acceding to a broader framing that is simply inaccurate. The high court may not uphold one type of TRAP law in Louisiana. One clinic may yet remain in that state. Roe may not be formally overturned this spring. But none of these potential outcomes will be a “win,” nor will they be a “compromise.” They are all merely baby steps in a yearslong project to end abortion without anyone truly seeing it happen, in ways that will affect the poorest, most vulnerable, and minority women immediately and in some cases fatally.

If the past three years have taught American women anything at all, it is that if you’re feeling that you’re being gaslighted, you’re probably being gaslighted. And if you’ve persuaded yourself that access to basic reproductive care can be contained to a single ruling, or a single line in a decision, or a single week in court, you may have just gaslighted yourself. We may feel powerless to change the composition or the ideology of the current Supreme Court, or the federal courts that will decide the scope and nature of women’s rights. But the one power that should not be given away is our awareness of how very much is on the line and the salience of so many other cases that will affect women, their bodies, their incomes, and their families for a generation. Not totally losing an abortion case in 2020 is not a win in that context.

John Roberts doesn’t want you to turn out to vote in 2020 based on what his court decides in June Medical. But the court is on the ballot, no matter what happens in this case and in every other case on the docket this term. The court is on the ballot because of what is happening in all the other cases, across all the other federal courts every single day. June Medical is not Ladies’ Day at the Supreme Court; every day materially affects women’s rights in America. Allowing Roe to slide away slowly, rather than collapse overnight, is not a win for women. Women can and should decide the next election based on the fact that reproductive justice, race and gender equality, immigration policy, gun safety, and a functioning administrative state are all on the docket, today and every day until the end of this term. The docket in its entirety highlights the fact that half a loaf in any one case is still a rolling catastrophe for women. No matter who sits on the court, the power to define the stakes still belongs to women. And we get to decide what a win looks like, this week and as long as we insist upon it.