By Mitchell LaCombe
Earlier this summer, the Supreme Court rendered the most recent decision in its abortion jurisprudence.[1] Yet June Medical Services (“JMS”) has, in a sense, taken us back in time.
In Planned Parenthood v. Casey, the 1992 decision that supplanted Roe v. Wade as the leading case in the law of abortion rights, the Supreme Court held that a law is unconstitutional if it imposes an “undue burden” on a woman’s “right to decide whether to terminate a pregnancy” prior to viability.[2] This, the joint opinion of the three-Justice plurality explained, means that an abortion law is unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”[3]
Four years ago, in Whole Women’s Health v. Hellerstedt (“WWH”), Justice Breyer, writing for the Court, informed us for the first time that courts applying Casey’s “undue burden” test must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[4] Curiously, although WWH retains Casey’s “substantial obstacle” language,[5] some courts and commentators have concluded that it removes the substantial-obstacle requirement altogether.[6] Advancing this interpretation, the petitioners in JMS argued that, under WWH, an abortion law is invalid if its burdens outweigh its benefits, “at least when those burdens are more than de minimis.”[7]
In JMS, the Supreme Court invalidated a Louisiana law that established an admitting-privileges requirement nearly identical with that which was struck down in WWH.[8] The district court found that this provision, which required abortion providers to have admitting privileges at hospitals within 30 miles of their clinics, would have left no more than two abortion providers for the entire state.[9] After JMS, however, the “balancing” requirement of WWH no longer remains good law.[10] Although the plurality in JMS (per Justice Breyer) followed WWH’s balancing approach,[11] Chief Justice Roberts rejected it as a distortion of Casey,[12] and his opinion—not the plurality’s—is controlling.[13] Under the Roberts approach, if an abortion law is “reasonably related” to a “legitimate” state interest, “the only question . . . is whether [the] law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’”[14]
By limiting the inquiry to burdens (as opposed to burdens and benefits),[15] Roberts purports to avoid the value incommensurability problem inherent in the plurality’s balancing test.[16] To weigh the interests of individuals in being free to decide whether to terminate a pregnancy against the interests of the state in protecting the health of its citizens, he submits, “would be like ‘judging whether a particular line is longer than a particular rock is heavy.’”[17] I do not wish to resort to “a game of ‘jurisprudential gotcha.”[18] However, it must be asked how Roberts was able to “balanc[e] the importance of having constitutional questions decided against the importance of having them decided right”[19] in determining whether to adhere to precedent.[20] If these values are commensurable (as Justice Thomas would deny)[21] and the competing interests at stake in JMS are not, Roberts does not tell us why.
The loss of WWH’s balancing test in JMS has led some commentators to conclude that, for those of us who wish to see the Court develop a more robust doctrine of abortion rights, the decision is—while a temporary win for the women of Louisiana—a significant jurisprudential defeat.[22] Although I do not completely disagree, these commentators overread WWH and the plurality opinion in JMS. The latter indicates that WWH did not remove the substantial-obstacle requirement, the satisfaction of which it treats as a prerequisite for balancing.[23] Indeed, the plurality opinion ends up appearing less favorable to abortion rights than the concurrence, for it accommodates a law that imposes a “substantial obstacle” to abortion access if its benefits are deemed sufficiently great.[24]
More disconcerting is the failure of the Justices to seriously consider the purpose/design of Louisiana’s law. While defended as a health regulation, the Louisiana law provided no meaningful health or safety benefits[25] and was almost undoubtedly designed to obstruct access to abortion.[26] The law was modeled after other state laws that, to quote an email from an anti-abortion activist to the law’s primary sponsor,[27] had “tremendous success in closing abortion clinics and restricting abortion access.”[28] JMS presented an opportunity for the Court to take a principled stance against pseudo-health legislation “designed to strike at the right itself.”[29] While the significance of the “win” should not be discounted, alas, that opportunity was missed.
[1] June Med. Servs. v. Russo, 140 S. Ct. 2103 (2020). [2] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992). [3] Id. at 877. [4] Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016). [5] Id. at 2300, 2309, 2312, 2316, 2318. [6] E.g., Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1055–56 (E.D. Ark. 2017) (“The regulation will not be upheld unless the benefits it advances outweigh the burdens it imposes.”), vacated and remanded, 968 F.3d 912 (8th Cir. 2020). Stephen G. Gilles, Restoring Casey's Undue-Burden Standard after Whole Women's Health v. Hellerstedt, 35 Quinnipiac L. Rev. 701, 737 (2017) (stating that, under WWH, “even if an abortion regulation does not impose a ‘substantial obstacle,’ it is unduly burdensome if its ‘asserted benefits’” are outweighed by the (albeit comparatively insubstantial) burdens imposed). [7] Brief for Petitioners at 49, June Med. Servs., 140 S. Ct. 2103 (2020) (No. 18-1323). [8] June Med. Servs., 140 S. Ct. at 2112-13 (plurality opinion); id. at 2139 (Roberts, C.J., concurring in the judgment). [9] June Med. Servs. v. Kliebert, 250 F. Supp. 3d 27, 87 (M.D. La. 2017). [10] Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *2 (8th Cir. Aug. 7, 2020); June Med. Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) (“Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard.”). [11] See June Med. Servs., 140 S. Ct. at 2132 (plurality opinion). [12] Id. at 2135-39 (Roberts, C.J., concurring in the judgment). [13] Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *2 (8th Cir. Aug. 7, 2020) (“Chief Justice Robert’s . . . separate opinion is controlling) (citing Marks v. United States, 430 U.S. 188, 193 (1977)). [14] June Med. Servs., 140 S. Ct. at 2138 (Roberts, C.J., concurring in the judgment). [15] This needs qualification. Chief Justice Roberts concedes that Casey allows for consideration of “benefits in considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’” Id. (Roberts, C.J., concurring in the judgment). [16] Id. at 2135-36 (Roberts, C.J., concurring in the judgment). [17] Id. at 2136 (Roberts, C.J., concurring in the judgment) (quoting Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment)). [18] William Baude, Precedent and Discretion, 7 S. Ct. Rev. 313, 329 (2019) (quoting Justin Driver, Judicial Inconsistency as Virtue: The Case of Justice Stevens, 99 Geo. L.J. 1263, 1265 n.7 (2011)). [19] Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring). [20] See June Med. Servs., 140 S. Ct. at 2133 (“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”). [21] See Gamble v. United States, 139 S. Ct. 1960, 1988 (2019) (Thomas, J., concurring) (“The Court's multifactor balancing test for invoking stare decisis has resulted in policy-driven, arbitrary discretion. The inquiry attempts to quantify the unquantifiable and, by frequently sweeping in subjective factors, provides a ready means of justifying whatever result five Members of the Court seek to achieve.”) (internal quotation marks and citation omitted). [22] Gretchen Borchelt, June Medical Services v. Russo: When a “Win” is Not a Win, SCOTUSblog (June 30, 2020, 12:31 PM), https://www.scotusblog.com/2020/06/symposium-june-medical-services-v-russo-when-a-win-is-not-a-win/ [https://perma.cc/43YV-BZPU]. [23] June Med. Servs., 140 S. Ct at 2132 (plurality opinion) (concluding that “Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana,” then “turn[ing] finally to the law’s asserted benefits”). [24] Cf. id. at 2181 (Gorsuch, J., dissenting) (“[U]nder the concurrence’s test it seems possible that even the most compelling and narrowly tailored medical regulation would have to fail if it placed a substantial obstacle in the way of abortion access.”). [25] E.g., id. at 2131 (plurality opinion) (affirming the district court’s finding that the law had “no significant health benefits”); Brief of Amici Curiae American College of Obstetricians and Gynecologists et al. Supporting Petitioners, at 6, June Med. Servs., 140 S. Ct. 2103 (2020) (Nos. 18-1323 & 18-1460) (“There is no evidence that an admitting privileges requirement improves patient safety when it comes to outpatient abortion care.”); id. at 10-14 (observing that the admitting-privileges law served no useful “credentialing, or qualifying, function”). [26] See June Med. Servs. v. Kliebert, 250 F. Supp. 3d 27, 55-56 (M.D. La. 2017). [27] Rep. Katrina Jackson. For her defense of the law, see Katrina Jackson, I Wrote Louisiana's Pro-Life Law. The Supreme Court Ruled Against Women's Health, USA Today (June 30, 2020, 8:00 AM), https://www.usatoday.com/story/opinion/voices/2020/06/30/supreme-court-abortion-june-medical-services-louisiana-column/3281423001/ [https://perma.cc/ZEK4-2KW9]. [28] Kliebert, 250 F. Supp. 3d at 56. [29] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992).