Symposium: June Medical Services v. Russo: When a “win” is not a win

Gretchen Borchelt is vice president for reproductive rights and health at the National Women’s Law Center. She filed an amicus brief on behalf of NWLC and 72 other organizations in support of the petitioners in June Medical Services v. Russo.

In June Medical Services v. Russo, a plurality of the Supreme Court struck down a Louisiana law that would have thwarted abortion access to such a degree that it would have left “thousands of Louisiana women with no practical means of obtaining a safe, legal abortion.” The decision is being reported as a victory. And it is a victory for people seeking abortion in Louisiana. It is a victory in that it does not completely obliterate the rule of law. But it is not the victory Roe v Wade and its progeny demand. And it’s not the victory we need and deserve.

On its face, June Medical Services has the makings of a significant win: Chief Justice John Roberts – who has previously voted against abortion access in the Supreme Court’s major rulings – sided with Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan to strike down an anti-abortion law and reject a challenge to abortion providers’ standing. This decision will end Louisiana’s pretense that this law does not burden people seeking abortion. And it will allow abortion providers to continue bringing legal challenges on behalf of their patients, as they have done for decades.

But that is where the win ends. Roberts took pains to write an opinion that cabins the plurality. It is a concurrence that goes out of its way to find common ground with the dissenters, including disdain for the Supreme Court’s most recent precedent. It argues for a return to a system that left people seeking abortion without access to the care they need. In his concurrence, Roberts plants a flag to mark the battlegrounds for future abortion fights.

Roberts had no wiggle room

Roberts concedes that stare decisis dictated his decision for two reasons. 1) The Louisiana law is “nearly identical” to the Texas law struck down by the Supreme Court just four years ago in Whole Woman’s Health v. Hellerstedt. 2) He can’t find “clear error” with the district court’s factual conclusions (issued in a thorough 116-page decision). Therefore, he must respect those findings, which he acknowledges show that “Louisiana’s law would restrict access to abortion in just the same way as Texas’s law, to the same degree or worse.”

In other words, if Roberts believes in the rule of law, as he claims, he has no wiggle room because the Louisiana case is too similar to the Texas case. If there were any doubt, he reiterates the command to “treat like cases alike,” explains the principle of stare decisis and makes clear his logic in a footnote (“Appreciating that others may in good faith disagree, however, I cannot view the record here as in any pertinent respect sufficiently different from that in Whole Woman’s Health to warrant a different outcome.”). He makes it crystal clear that his hands are tied by stare decisis.

Roberts limits scope to Louisiana’s law

Roberts clarifies that his concurrence only covers Louisiana’s admitting privileges law by endorsing Justice Samuel Alito’s dissenting opinion that “the validity of admitting privileges laws ‘depend[s] on numerous factors that may differ from State to State.’” Rather than stopping the proliferation of admitting privileges laws and other state laws meant to shut down clinics, Roberts’ concurrence is likely to have the opposite effect: It will encourage anti-abortion politicians to more strategically deploy such laws.

Roberts wants to jettison Whole Woman’s Health

Roberts spends the bulk of his concurrence on his disdain for Whole Woman’s Health, a disdain he shares with the dissenters.

In Whole Woman’s Health, the court explained that the undue burden standard from Planned Parenthood v. Casey requires courts to balance the burdens a law imposes against any benefits it confers. If burdens outweigh benefits, the law is unconstitutional. Roberts instead wants to return to what he says is the correct analysis of undue burden from Casey. In his view, when considering an abortion restriction, courts should not balance burdens against benefits. Rather, a court need only consider whether the law imposes a substantial obstacle in the path of a person seeking abortion, and whether the restriction survives rational basis review. Only if there is a “substantial obstacle,” or if the law somehow fails rational basis review, will it be invalidated.

But this is a smoke screen. Roberts has never met an obstacle to abortion he actually believes is substantial. In Gonzales v. Carhart, he did not consider a nationwide ban on an abortion procedure with no exception for women’s health to be a substantial obstacle. In Whole Woman’s Health, he did not believe the Texas law presented a substantial obstacle, despite its closing half of the state’s abortion clinics.

Roberts does not mention that the decision in Whole Woman’s Health was necessary in part because lower courts had been inconsistently and incorrectly applying the Casey undue burden standard. After Casey, numerous states passed hundreds of abortion restrictions – over 450 in the last decade alone – that led to a patchwork of abortion laws across the country that left far too many without abortion access. Courts ignored the harm of those restrictions to people seeking abortion, did not consider how multiple restrictions compounded to make abortion access all but impossible, and permitted anti-abortion politicians to pass medically unnecessary laws intended only to restrict abortion and shame those who sought abortion care. This is the standard to which Roberts wants to return.

Whole Woman’s Health clarified the undue burden standard established in Casey in order to eliminate confusion in abortion law, provide guidance to lower courts for analyzing abortion restrictions and halt the proliferation of laws that have made a person’s right to abortion largely dependent on their zip code. But Roberts’ concurrence in the current case and his wish to return to the previous norm of misinterpreting and incorrectly applying the undue burden standard established in Casey will lead to uncertainty and turmoil. It will effectively sanction anti-abortion laws enacted to test interpretations of “substantial obstacle,” target individuals seeking abortion and the doctors who provide that care, and increase litigation. And make no mistake, increased litigation will yield more instances of judges upholding abortion restrictions that should be struck down, in defiance of Whole Woman’s Health, because President Donald Trump has successfully filled the lower federal courts with judges hostile to abortion rights –200 and counting.

Roberts appears open to an even weaker standard

Despite proclaiming his fealty to Casey’s undue burden standard (at least his interpretation of it), Roberts appears open to revisiting even that standard when he says, “No one asked the Court to reassess the Constitutional validity of the undue burden standard.” That is not a statement of fact; it’s an invitation.

Roberts is explicit: He is striking down the Louisiana law only because he must, as chief justice, show some semblance of respect for the rule of law. He is implicitly promising a different outcome in a case with different facts or in a case with a different anti-abortion law, one that he believes is not squarely governed by Whole Woman’s Health. He is openly stating his preference for a weaker undue burden standard to assess the constitutionality of abortion restrictions – one that allows a devastating range of abortion restrictions to be upheld. He’s even inviting a challenge to the undue burden standard. In the process, he is muddying the waters for lower court judges who must consider abortion restrictions. And it is most certainly not lost on the chief justice that the lower courts now contain many judges who are hostile to abortion, or that there are numerous abortion restrictions working their way through the lower courts.

Roberts is doing all he can to chip away at abortion rights, building on an unfortunate legacy at the Supreme Court. Already, too many live in the shadow of Roe v. Wade, rather than in its full light. People who seek abortion are judged and shamed, subjected to violence and harassment from protestors, forced to drive hundreds of miles and sometimes out of state to exercise what should be their right. They are prohibited from using insurance coverage to pay for the procedure, forced to listen to lies, given misleading information and made to wait a specified period of time after they’ve made their decision, because that decision is not trusted. And those who are living in poverty, those in the Black, Latinx, Indigenous and Asian American Pacific Islander communities, LGBTQ people, immigrants and rural communities are the ones that feel the impact of these laws the most.

We deserved a sweeping Supreme Court decision that recognizes and supports both the right to abortion and access to abortion. A decision that takes account of those who are most affected by abortion restrictions, including Black people who are at the center of our country’s current reckoning with racism and white supremacy. We need a decision that connects abortion to the current movement for gender justice in this country, to equality and to freedom. This, regrettably, is not that decision.