Symposium: Chief Justice Roberts reins in the cavalry of abortion providers charging toward the elimination of abortion regulation

Cynthia Yee-Wallace is deputy attorney general of the state of Idaho. She filed an amicus brief on behalf of the state in support of the respondent in June Medical Services v. Russo, along with Brian Kane, who is the assistant chief deputy attorney general for the state of Idaho.

Abortion providers won the most recent skirmish invalidating Louisiana’s admitting privileges law in June Medical Services v. Russo. But a close read of Chief Justice John Roberts’ concurring opinion will likely operate to sharply check the ongoing efforts of opponents of abortion regulation. Roberts, although adhering to the precedent in Whole Woman’s Health v. Hellerstedt, did so through an exceptionally narrow window, effectively carving out the precedential value of Whole Women’s Health and reorienting the Planned Parenthood v. Casey equation to negate future judicial balancing tests.

While June Medical was making its way to the U.S. Supreme Court, a decisive battle was being waged across the country between abortion providers and the states. Following the Supreme Court’s 2016 decision in Whole Woman’s Health, abortion providers systematically filed lawsuits in several states in a unified effort to eliminate both old and new abortion regulations using a uniform interpretation of Whole Woman’s Health that relied on the deployment of a balancing test, the net result of which was that state abortion regulations were facing a decidedly uphill analysis. Had the Supreme Court adopted this interpretation of Whole Woman’s Health in its June Medical decision, it would have had the effect of invalidating states’ ability to enforce abortion regulations going forward. Regulations subject to invalidation included laws that states had historically relied upon as constitutionally permissible regulations based on the court’s prior precedents. Roberts’ concurring opinion cast aside abortion providers’ uniform interpretation of Whole Woman’s Health and saved a catalog of abortion precedent, preserving the states’ ability to regulate abortion.

Following the decision in Whole Woman’s Health, abortion providers filed suit in Louisiana, Montana, Mississippi, Texas, Virginia, Indiana, Idaho, Wisconsin, Arizona, Minnesota, Maine and Alaska, seeking to invalidate laws that have been in effect for years and were drafted in reliance on Supreme Court precedent, including laws that restrict the performance of abortions to physicians only. To do this, abortion providers advanced a one-sided and uniform interpretation of Whole Woman’s Health that sought to bring abortion jurisprudence back to the immediate post-Roe v. Wade era when essentially no abortion regulations could be upheld if they regulated abortion with the first two trimesters of pregnancy. This reversion assumed that the Casey framework had been completely remodeled by Whole Woman’s Health. The Casey decision brought abortion jurisprudence in balance, rejecting the trimester framework under which to evaluate abortion regulations and allowing previability abortion regulation so long as such regulation did not amount to an substantial obstacle to a woman’s right to choose a previability abortion.

In interpreting Whole Woman’s Health in cases across the country, abortion providers sought to undo the balance created by Casey. First, they argued that all abortion regulations—both old and new—are subject to a state-by-state fact- and record-specific examination, irrespective of the state’s interest. This interpretation allowed abortion providers to argue that Supreme Court precedent that had previously upheld abortion regulations, such as physician-only laws, was confined to the particular state whose laws were under attack based upon the specific evidentiary record that existed when the case was filed. This argument in effect invalidated the value of Supreme Court precedent nationwide. Ironically, the petitioners made the opposite argument for invalidating Louisiana’s admitting privileges law in June Medical, and the chief justice specifically emphasized the value of Supreme Court precedent in overturning Louisiana’s law on stare decisis grounds.

Second, abortion providers advocated for strict scrutiny as part of the undue burden standard, placing on states the burden to prove that their laws are “necessary.” Third, they asserted that states must identify and prove that their laws confer a number of benefits on women seeking abortions or their providers. Fourth, abortion providers argued that Whole Woman’s Health set forth a proportional balancing test: The trial court was required to weigh any purported benefits of the law against the purported burdens of the law, and if the benefits did not outweigh the burdens, the law was invalid. Had this particular interpretation of Whole Woman’s Health prevailed or at least gone unchecked, abortion jurisprudence would have been drastically transformed. This is because few if any state abortion laws could survive such a standard, which gave trial courts almost unbridled discretion to determine that a law must provide sufficient judicially perceived benefits before it could be upheld. Fifth and finally, abortion providers argued that they should only be required to show what is akin to “but for” causation, provable by circumstantial or common sense evidence that the law at issue caused the burdens they allege.

In his concurring opinion in June Medical, Roberts laid to rest much of the abortion providers’ unified interpretation of Whole Woman’s Health. Roberts affirmed the importance and validity of the court’s prior abortion precedent, noting that “[r]espect for precedent ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’” Roberts reiterated the central holding in Casey, which affirmed not only a woman’s right to choose a previability abortion, but also states’ “important and legitimate interests in … protecting the health of pregnant women and in protecting the potentiality of human life.”

Roberts made it clear that when defending their abortion regulations, states do not have to prove that their regulations are necessary to further a legitimate state interest. Instead, as set forth in Casey, states must prove that there is a legitimate purpose for the regulation at issue and that the regulation is reasonably related to advancing that purpose. Once this showing is made, the sole question for a trial court is to determine if the law creates a substantial obstacle on a woman’s right to choose a previability abortion. Through this analysis, Roberts made it clear that Whole Woman’s Health did not create a balancing test under which trial courts must review abortion regulations.

Roberts went on to note that it is not the job of the courts to weigh the costs and benefits of an abortion regulation. Rather, analyzing the policy costs and benefits of such measures is a task left to legislators. To the extent that courts look at the benefits of an abortion law, they are to do so only as a component of the threshold requirement that states have a legitimate purpose for the law and that the law is reasonably related to that purpose.

The chief justice simplified the role of the judiciary in analyzing abortion regulations to a pair of straightforward questions: (1) Does the state have a legitimate purpose in adopting the regulation? and if so, (2) Does the regulation create a substantial obstacle to a woman’s right to a previability abortion? With this formulation, Roberts brought the balance of Casey back into the equation by making clear that courts analyzing abortion regulations as an undue burden are required to focus on whether the law creates a substantial obstacle to the abortion decision, not on whether the benefits of the law outweigh its costs. State abortion regulations will continue to be valid and enforceable if a challenger is unable to show that the law at issue is a substantial obstacle to women’s right to choose a previability abortion. Importantly, Roberts (and presumably the four dissenters) interprets a substantial obstacle as requiring more than a simple showing that the law makes it harder to obtain an abortion. It should not be overlooked that Roberts dissented in Whole Woman’s Health, and concurred in June Medical solely on the basis of stare decisis. In other words, states may enact admitting privileges regulations that can meet the Casey requirements, but a law identical to Texas’ or Louisiana’s will fall.

Abortion providers’ one-sided interpretation in Whole Woman’s Health sought to invalidate the states’ ability to regulate previability abortions for a legitimate purpose. The chief justice clarified that Casey continues to be the lodestar for legal and judicial interpretation of state previability abortion regulations. June Medical looks to be a critical victory for states because it reaffirmed the straightforward two-question inquiry that Casey created, and demonstrates that states may continue to regulate abortion within the well-defined boundaries of Supreme Court precedent.