Conservative Courts Are Coming for Our Health Care: How We Fight Back
Partially cross-posted from our joint Raising Women’s Voices campaign.
This week we’re celebrating the 47th anniversary of Roe v Wade, one of the most significant advancements in women’s health, economic well-being, and individual autonomy in the last fifty years.
As we’re highlighting the big gains we’ve made under Roe—and reflecting on the areas where its promise hasn’t yet been fulfilled—we’re also preparing for the legal challenges that lie ahead. Fittingly, this week also marks the next phase in conservatives’ ongoing assault on the Affordable Care Act.
We’ve been closely following the Trump takeover of the federal judiciary and the hollowing out of the U.S. Justice Department. In two big court cases recently, one that conservatives hope can be used to dismantle Roe and one to repeal the ACA entirely, government lawyers and conservative judges have been willing to embrace embarrassingly weak legal theories in order to pursue blatantly partisan ends. Taken together, the two cases offer a warning about how far health care opponents will go to warp the federal judiciary to their ends and what we must do to fight them.
Abortion rights under attack
On March 4, the U.S. Supreme Court will hear oral arguments in its first big abortion case, June Medical Services v Gee, since the confirmation of Trump Justices Neil Gorsuch and Brett Kavanaugh.
The case involves a Louisiana TRAP law requiring abortion providers to have admitting privileges at nearby hospitals, a law that is nearly identical to one in Texas that the Court struck down just four years ago in Whole Woman’s Health v. Hellerstedt. While a lower court had overturned the Louisiana law, citing Whole Woman’s Health, the conservative Fifth Circuit Court of Appeals upheld the law in late 2018, falsely claiming that Louisiana’s requirement is less burdensome than Texas’s. Their decision reflected the cynical calculation that while the jurisprudence hadn’t changed in four years, the Court’s ideological makeup had, dispensing with the pretense that Court decisions are based on sound legal theory instead of rank partisanship.
Earlier this month, more than 200 members of Congress signed an amicus brief calling on the Court to go beyond the relatively narrow legal issues in June to use the case as an excuse to overturn Roe entirely. But even more likely than a full frontal assault on Roe, the Roberts Court could use June to gut the ability of abortion providers to sue on behalf of their clients while also declaring that legal victories won by individual patients only apply to those specific patients. In other words, a woman seeking an abortion could win a court order for herself but not for anyone else.
As Vox reported, “Should this argument prevail — and there’s a good chance it will appeal to conservative justices who want to quietly roll back abortion rights while avoiding a political backlash — it would fundamentally alter the landscape of abortion rights. Its immediate effect would likely be to shut down suits challenging anti-abortion laws before those laws take effect.” Over the long-term, it “could make it nearly impossible for anyone to obtain an abortion in states that bar the procedure.” The result? “Roe v. Wade doesn’t mean much if no one can sue to enforce it.”
The “small but deadly serious” threat to the ACA
On Tuesday, the Supreme Court declined to expedite its review of California v Texas (formerly Texas v Azar and Texas v United States), the case that legal scholar Nicholas Bagley has called “a small but deadly serious threat to the ACA.” Though it could still ultimately agree to take the case next term instead of sending it back to the lower courts first, this week’s outcome ensures that no decision will be made before the 2020 elections.
As Politico reported, that comes “as a relief to President Donald Trump and Republicans, who’ve been wary of the lawsuit’s potential to scramble their election hopes. … The outcome means Trump will face less pressure to articulate an Obamacare replacement plan during the campaign. Republicans failed to agree on an Obamacare replacement when they had complete control of the federal government in the first two years of Trump's presidency, and they haven’t come up with a new plan since then.” As the Washington Post noted, the Supreme Court is “sav[ing] Republicans from themselves.”
Of course, teeing up full ACA repeal while also ensuring that the process drags out long enough to protect Republicans’ reelection chances has been conservatives’ strategy all along.
First, in December 2018, federal court judge Reed O’Connor issued a sweeping opinion striking down the ACA on legally shaky grounds. Writing for Raising Women’s Voices, we noted at the time that the “intensely political judge” had delayed issuing his ruling for months, raising speculation that he was doing so to help Republicans get through the midterm elections, in which health care was a top issue for voters. Then O’Connor seemed to time his ruling—the night before the last day of open enrollment, when a rush of last-minute sign-ups were expected—to create confusion and inflict maximum damage on the ACA, whether his decision stands up against appeal or not.
Then, the Fifth Circuit also sat on the case for months, finally announcing its 2-1 decision to remand the case back to O’Connor on the same day in December that the U.S. House of Representatives was debating articles of impeachment on the House floor—guaranteeing public attention would be elsewhere. Why did the Fifth Circuit wait so long only to send it back to O'Connor?
Writing for The Atlantic, Bagley noted that “The Fifth Circuit’s cowardice may be strategic. By refusing to say how much or little of the law has to go, the opinion avoids creating an immediate headache for Republicans going into the 2020 election. … For now, the Fifth Circuit’s decision changes nothing on the ground. But it stands as evidence, if any more were needed, that traditional legal restraints have become fragile in a time of partisan warfare.”
How to fight back when the courts are openly partisan
In both June and California, even conservative legal scholars have questioned the legal merits of the cases—the architect of the original challenge to the ACA’s constitutionality has called the current challenge “bananas”—and yet at each step along the way, Trump and Bush appointees to the federal bench have been willing to put their names on laughably bad legal doctrine.
That suggests that there’s almost no limit to the kinds of attacks on women’s health that we can expect to be greenlit in the lower courts. It also tells us that while strong legal arguments are necessary, they aren’t sufficient.
We can defend women’s health in the courts by defending it at the ballot box—if the public knows what’s at stake.
At the NWHN, we’re taking a two-fold approach to fighting back.
First, advocacy, education, and public engagement.
Partisan judges have cynically demonstrated that they know their agenda is unpopular and could hurt Republican electoral chances; they have tried to time their decisions to mitigate the fallout. The silver lining for health care activists is that, for better or worse, these judges have proven that they’re sensitive to public outcry and that they know their best chance to push through attacks on women’s health is if the public is disengaged from what’s happening.
Roe and the ACA are two of the biggest victories for women’s health care in modern history. We can defend them in the courts by defending them at the ballot box if the public knows what’s at stake.
And second, self-help.
From its founding more than 40 years ago, the NWHN has valued the ability of women to help themselves and each other. If Roe falls, abortion rights will be protected in just 21 states under current state laws, potentially forcing pregnant people who want or need clinic access to travel long distance at significant expense.
But for those who want to self-manage their abortions in the privacy of their own home, extremist courts should know that they can’t stop us. From menstrual extraction—a self-help method of removing the contents of the uterus to avoid having a period or to eliminate an early pregnancy—to herbs and other methods used by women to manage their reproductive health for millennia, we will help each other. 
In particular, the NWHN has been working to get the word out that self-managed abortion using FDA-approved medication is a safe and effective way to terminate a pregnancy. (You can find all of our materials on abortion HERE.)
From a medical perspective, there is no physically significant difference between a medication abortion and a spontaneously occurring miscarriage. The physical process, risks, warning signs, potential complications, and treatments are the same. For example, the medicines used in medication abortion are used to help safely manage an incomplete miscarriage.
That’s important to know because it means:
- Medication abortion simply initiates the body’s same natural process for when an early pregnancy ends. Whether a miscarriage occurs spontaneously or is induced with FDA-approved abortion pills, it usually resolves safely without medical intervention, and serious complications are rare.
- There is no test to determine if you have taken abortion pills. If you aren’t comfortable telling a medical provider that you’ve had a medication abortion instead of a spontaneous miscarriage, it is not necessary to do so. Your body won’t give you away.
Learn more about medication abortion, self-managed abortion, and women helping women at nwhn.org. Then speak up to let the courts know that you’re watching them and that you vote.
Sarah Christopherson, MA, is the Legislative Director for the social justice campaign, Americans for Tax Fairness, and the NWHN’s former Policy Advocacy Director. Her 10 years working for Congress and her deep knowledge of health policy and consumer protection make her the NWHN’s issue area expert on federal health reform implementation and defense, drug and device safety and efficacy, and sexual and reproductive health.
Read more from Sarah Christopherson.
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