Bench Memos

Law & the Courts

One Step Back, Two Steps Forward: a Road Map through June Medical

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As we settle into summer after the close of another U.S. Supreme Court term, I’m reflecting on what I’ve heard from many pro-life allies who feel discouraged by the result of June Medical Services v. Russo. The outcome was not what we sought, but there remain many reasons for hope.

Too much of the reporting on the Supreme Court’s decision in the Louisiana abortion case has been unbalanced because it is incomplete, by emphasizing Justice Breyer’s opinion for the four liberals and Chief Justice Roberts’ vote to strike down the Louisiana law. There’s much more to the story.

The starting point is that it was a 4–1–1–3 decision with six opinions from a badly fractured Court. Justice Breyer wrote an opinion joined by Justices Ginsburg, Sotomayor, and Kagan. Since only four justices joined that “plurality opinion,” it is not binding in future cases.

The Chief Justice did not join Breyer’s opinion but wrote his own, indicating that he was “concurring in the judgment” only (the invalidation of the Louisiana law but not the reasoning). His discussion of precedent (stare decisis) starts with the proposition that the Justices should “treat like cases alike.” Because the law and facts in the Louisiana case (June Medical) are virtually identical, in Roberts’s opinion, to the 2016 Texas case (Whole Woman’s Health) when the Court invalidated the Texas law, the Louisiana law must fall. (Roberts’s approach to precedent is objectionable for many reasons, but that must be left for another day.)

But then, at the end of his discussion about precedent, he subtly shifts gears. He wrote:

Stare decisis principles also determine how we handle a decision [meaning Whole Woman’s Health in 2016] that itself departed from the cases that came be­fore it [meaning Planned Parenthood v. Casey in 1992]. In those instances, “[r]emaining true to an ‘intrinsi­cally sounder’ doctrine established in prior cases [Casey] better serves the values of stare decisis than would following” the recent departure [Whole Woman’s Health].

This signals an abrupt shift from what he is doing in June Medical to what he will do in the future. The implications are uncertain. But if he can apply the “remaining true to an intrinsically sounder” doctrine to Whole Woman’s Health, why not to Casey or to Roe?

When joined with the dissents of Thomas, Alito, Gorsuch, and Kavanaugh, Roberts’s statement implicitly “overrules” Whole Woman’s Health’s balancing test. Justice Kavanaugh directly says it: “Today, five members of the Court reject the Whole Woman’s Health cost-benefit standard.”

Then the Chief Justice shifts to an extensive discussion of Casey and what it means for him. Roberts reiterates the best parts of Casey — the passages most favorable to deference to the states in protecting maternal health and fetal life — and he distances himself from Breyer’s opinion in June Medical. Roberts explains that he will not apply Whole Woman’s Health and how he will apply the more deferential standards of Casey to future abortion cases.

Roberts’s opinion then needs to be read in conjunction with the four dissents by Justices Thomas, Alito, Gorsuch, and Kavanaugh, because they make up a five-justice majority on the future of abortion law.

Justice Thomas, writing for himself alone, makes a direct argument against Roe v. Wade — that it was wrongly decided and unworkable and should be entirely overturned: “Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.”

Justice Alito — joined by Thomas, Gorsuch, and Kavanaugh in the principal parts — wrote a thorough dissent largely focused on the underlying facts in support of Louisiana’s law. All four joined Alito’s conclusion: “there is ample evidence in the record showing that admitting privileges help to protect the health of women by ensuring that physicians who perform abortions meet a higher standard of competence than is shown by the mere possession of a license to practice.”

Justice Gorsuch, in a lone dissent, questioned the Court’s abortion doctrine: “To arrive at today’s result, rules must be brushed aside and shortcuts taken . . . . a sign we have lost our way.”

There was additional progress in June Medical. Louisiana nicely teed up a challenge to the preposterous practice of abortion providers going into court to tell federal judges why their patients don’t need health and safety standards. That issue will hopefully be more directly addressed by the Court in a future case.

What does this mean? The implications became clearer on July 2, when the Court reversed two pro-abortion decisions in cases from Indiana and sent them back for reconsideration in light of the opinions in June Medical.

The first, called Box II, involves an Indiana law that women considering abortions have an ultrasound, as part of the informed consent process, followed by 18-hour waiting period before the abortion. The second, called Box III, involves an Indiana law that requires that parents be given notice of their minor daughter’s intended abortion.

Though Roberts may have restored Casey, Casey is merely a half-way house to overturning Roe. Roberts still gives no clear evidence that he would be willing to overturn Roe or Casey. He may think that giving more deference to the States is enough to “fix” Roe v. Wade. Political conditions will have to change the Court. That may mean two more justices, not just one.

In the near-term, June Medical changes very little politically. A sixth or seventh justice will be needed to overturn Roe. The future pace for overturning Roe will be determined by the presidential and senate elections. State legislators in many states in 2021 will still be focused on passing the strongest possible limits on abortion. There’s no certainty in which direction the Court will move. Roe is as unsettled as at any time since 1973. Those factors were true before and after June Medical.

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