Symposium: The chief justice restores the Casey standard even while undermining womens interests in Louisiana

Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute. Follow her at @erikabachiochi.

In comparison to the high courts bombshell opinion in Bostock v. Clayton County earlier this month, June Medical Services v. Russo would seem relatively straightforward. The challenged admitting privileges requirement for Louisiana abortion providers is virtually the same as the law struck down in Whole Womans Health v. Hellerstedt just four years ago; because a basic hallmark of justice is that courts treat like cases alike, stare decisis dictates that the Louisiana law be found unconstitutional too. Chief Justice John Roberts replaces Justice Anthony Kennedy as the fifth vote striking down the law, and we call it a day.

But June Medical is not nearly so simple. Although five members of the court struck down the Louisiana law as “nearly identical with the Texas statute in Whole Womans Health, Justice Stephen Breyers plurality opinion, resting as it does on his own majority opinion in Whole Womans Health, is not the one that ultimately governs the case. Rather, in yet another fragmented abortion decision, Roberts joins the plurality in reaffirming the basic determination of Whole Womans Health as to the admitting privileges law at issue, even as he corrects Whole Womans Healths misinterpretation of Planned Parenthood v. Caseys undue burden standard. And because Roberts concurrence rests on narrower grounds than the plurality does, his endorsement of Caseys substantial obstacle test which the four dissenting justices also support will govern abortion regulations going forward.

In both Whole Womans Health and June Medical, the Supreme Court reviewed state laws requiring abortion doctors to obtain admitting privileges at hospitals within 30 miles of the clinics in which they perform abortions. And in both cases, Breyer asserted that Casey requires courts to compare the benefits and burdens of such laws to ascertain whether they amount to an undue burden on womens ability to procure abortions. Lower courts, following Judge Richard Posner, had begun to read into Casey a balancing test in 2013, thereby enabling courts to strike down abortion regulations even if they did not in Caseys words have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion. Claiming that this novel approach was required by Casey itself, and relying on the findings of the district courts, Breyer found the admitting privileges statutes in both cases unconstitutional both because their benefits to womens health were minimal compared to their burdens, and because they resulted in a substantial obstacle to abortion access.

But as Justice Clarence Thomas argued in dissent in Whole Womans Health, and as Roberts argues in concurrence in the judgment in June Medical, Caseys standard of review focuses on whether the disputed law creates a substantial obstacle to womens abortion access — while otherwise granting wide discretion to state and federal legislatures in matters of health and safety. The Casey courts application of its undue-burden test to the regulations it reviewed, Roberts demonstrates, did not weigh the benefits and burdens of the regulation. When the Casey plurality discussed the benefits of abortion regulations, it did so merely to ascertain, as a threshold matter, whether the law at issue was reasonably related to a legitimate state purpose. Provided that requirement was satisfied, the only remaining issue was whether the law created a substantial obstacle to abortion access, a fact-intensive, state-by-state determination.

To confirm the error of Breyers balancing ways, Roberts scrutinizes how the balancing test might apply in a future case: How might courts go about weighing the states interests in protecting the potentiality of human life and the health of the woman against the womans liberty interest in defining her own concept of existence, of meaning, of the universe, and of the mystery of human life? Nowhere, Roberts argues, does Casey suggest that courts have the competency to make such a determination. Instead, he writes, [p]retending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an unanalyzed exercise of judicial will in the guise of a neutral utilitarian calculus.

In repudiating the newfangled balancing test, then, Roberts in his June Medical concurrence restores Caseys relatively more deferential treatment of abortion regulations (at least compared to Whole Womans Health — and Roe). His opinion will in fact have that effect, because the four dissenting justices expressly endorse the substantial obstacle test to the exclusion of Breyers balancing test. As Justice Brett Kavanaughs dissent points out, Today, five members of the Court reject the Whole Womans Health cost-benefit standard.

But even as Roberts provides the fifth vote for that partial overruling of Whole Womans Health, he joins the plurality in holding that the Louisiana regulation at bar must fall. Arguing that the courts benefits inquiry was unnecessary to its decision in Whole Womans Health, Roberts suggests that the Texas law could have been struck down under Caseys undue burden approach alone (basically rendering the Whole Womans Health benefits inquiry unnecessary dicta). And yet, even though he himself voted to uphold the Texas regulation, and even as he repudiates the Whole Womans Health test under which it fell, he refuses to overrule Whole Womans Health in its entirety, paying rather odd lip service to stare decisis along the way. In the end, since he sees no marked difference between the burdens of the Texas law and the burdens of the law in Louisiana, Roberts states that he is unable to find a clearly erroneous judgment on the part of the district court: The question is not whether we would reach the same findings from the same record, but whether “we are left with the definite and firm conviction that a mistake has been committed.

As much as Roberts is right to correct the missteps of Whole Womans Health, he makes a few rather obvious missteps of his own. In rather passively joining the plurality on the standing issue, he misses the opportunity to reckon with the deep contradiction at the heart of this case and really at the heart of abortion jurisprudence as we know it. Not only is Thomas correct that the Supreme Court has had it wrong constitutionally from the start, but allowing abortion providers to sue on behalf of women puts womens interests in the hands of abortion providers with adverse economic interests. A jurisprudence that treated womens interests as distinct from those of abortion providers might come rather to see abortion for what it really is: a quick, easy, and relatively cheap way to keep women from demanding more, more of men, more of employers, more of medicine, more of the community at large. From this perspective, its no surprise that Katrina Jackson, the chief sponsor of the bill June Medical struck down yesterday, is an African-American whole life Democrat who sees abortion, touted by Casey as a means for economic and social progress, as actually a tool of racial and economic oppression.

As in Whole Womans Health and in Roe itself, doctors interests take center stage here again, with the five justices in the majority including three women! — maintaining that a regulation meant to protect womens health and safety is unduly burdensome to women simply because it places significant requirements upon doctors who would serve them. And yet, as Justice Samuel Alitos questioning loudly hinted at oral argument and as he now argues in dissent, the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. In any other case involving business regulation say, tobacco, or better yet, gun regulations — we would readily see the clear conflict of interest. If gun manufacturers attempted to stand on gun owners Second Amendment rights (rights that are actually in the text of the Constitution) to argue against a burdensome safety regulation of the manufacturers, we would not think courts should so readily strike down the law; indeed, requiring the manufacturers be limited to [their] own rights, in Alitos words, would mean that the law would need to pass only very deferential rational basis scrutiny, and thats it.

Some have even criticized these women-protective regulations as targeted regulation of abortion providers; Justice Ruth Bader Ginsburg referred to them as such in her Whole Womans Health concurrence. Yet, in striking down these laws in Whole Womans Health and now in June Medical, it is rather the Supreme Court that has carved out an exception just for abortion providers. After all, in passing Act 620, the Louisiana legislature merely sought to ensure that abortion doctors enjoyed the same relationship with area hospitals that every other doctor who performs outpatient surgery enjoys; they wished to bring abortion regulation in line with other medical care. Indeed, the legislature acted in response to an impressive record of complaints of negligence and substandard clinic conditions, a hefty record that itself distinguishes the Louisiana case from that of Texas in Whole Womans Health, as Justice Neil Gorsuch argues in dissent. The record itself shows that abortion providers, on their own, were clearly not looking out for womens best interests. It is strange for those now characterizing abortion as basic health care not to want to be held to the same standards as, well, basic health care.

And although perhaps not a perfect means of ensuring that doctors provide adequate medical care in the process of providing abortions, admitting privileges are a good start. Unlike a state medical licensure, such privileges require applying doctors to undergo an extensive investigative process the clinics do not require, and they provide continued oversight and monitoring. Such oversight measures ensure the best possible medical care for women seeking abortions, even if the hospital privileges themselves are, in the great majority of individual cases, thankfully unutilized.

All that said, it is not surprising that abortion providers find it difficult to obtain admitting privileges at area hospitals. After all, doctors profess to preserve life, not end it. And so, while there are surely many reasons hospitals may decline providers applications for even courtesy privileges (those not requiring a threshold number of hospital admissions), abortion may well seem to many in the profession the very antithesis of medical care. Only one in four OB-GYNs, at the most, is willing to perform abortions, with the adverse majority citing, most commonly, personal, religious or moral reasons for their unwillingness. And yet their largest professional organization, alongside insurance companies and other corporate entities, now routinely campaigns to protect the procedure. Just as many companies seem to prefer quick abortions to generous work-family policies, professional medical associations would save face politically by lobbying for a procedure most doctors in their ranks themselves decline ever to perform.