June Medical v. Russo was a victory for Louisiana’s three independent abortion clinics and the thousands of people in the state they can now continue to serve. But, going forward, Chief Justice Roberts’ concurring opinion could pave the way for federal courts to bless a host of abortion restrictions that would make access to care more difficult.
To understand what might happen based on the Chief’s opinion, it’s instructive to look at Planned Parenthood v. Casey. In that case, the Court announced the undue burden test, a test that in theory could have had bite. Per the decision, “An undue burden exists, and therefore a provision of law is invalid, 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.”
However, in Casey itself, the Court applied the standard and upheld almost all of the restrictions before it — a parental interference requirement, an abortion-only extreme informed consent process, and a 24-hour mandatory delay. The only provision the Court struck down under the undue burden test was the requirement that a married woman notify her husband before having an abortion.
Between 1992’s Casey and 2016’s Whole Woman’s Health v. Hellerstedt, the Court treated the undue burden test as giving almost carte blanche to states to restrict abortion. The one restriction struck down in Casey was off the table — spousal notification — but almost everything else was allowed. In seven different cases after Casey’s undue burden standard was announced, the Court approved a public funding prohibition, a regulation of abortions after 20 weeks pregnancy, an extreme judicial bypass provision, a physician only requirement, a burdensome parental notification law, and a federal law banning so-called “partial birth abortion” (reversing course from an earlier case that struck down an almost identical state ban).
One possible interpretation of what the Court was doing in these years was that Casey’s undue burden test prohibited one — and only one — restriction, a spousal notification requirement. Everything else, short of banning abortion, is constitutionally permissible.
But then came Whole Woman’s Health. That case was significant for two reasons. First, it struck down both of the Texas abortion restrictions before it — an admitting privileges law and an ambulatory surgical center requirement. And second, it explained that an undue burden under Casey exists when an abortion restriction is more burdensome than beneficial. This balancing test proved very useful in the hands of lower courts, as the Court gave federal judges a tool to strike down burdensome abortion restrictions beyond those struck down in Casey and Whole Woman’s Health.
Now, though, the Chief’s opinion in June Medical could bring us be back to the pre-Whole Woman’s Health world in which the only unconstitutional abortion restrictions are those that are identical to the ones that the Supreme Court has previously struck down. After all, this was the basic reasoning of the Chief’s concurring opinion. He wrote that even though he dissented in Whole Woman’s Health, he was going to give its specific holding stare decisis effect only because “the two laws are nearly identical” and “[s]tare decisis instructs us to treat like cases alike.”
Nonetheless, the Chief was clear that he was not going to give any effect to the 2016 case beyond its specific holding. He, along with the four dissenters, disagreed with the Whole Woman’s Health balancing test. Instead, the Chief suggested that the proper way to analyze an abortion restriction was to look to Casey itself, which according to Roberts, requires a two-step analysis. First, determine whether the state has a rational basis for the law. Then second, determine whether the law places a substantial obstacle in the path of a woman choosing to obtain an abortion. Nowhere in either step are courts to assess the actual benefits of the state restriction.
The message to lower courts is that a very narrow reading of Casey is the proper way to analyze future abortion restrictions. The Chief wrote approvingly of the Casey Court upholding most of Pennsylvania’s restrictions except for the spousal notification requirement, and he made clear that he still disagreed with Whole Woman’s Health’s application of Casey to Texas’ admitting privileges and ambulatory surgical center requirements, even if he followed the specific holding in June Medical.
What this means is that we’re back to the post-Casey, pre-Whole Woman’s Health world. The Court has struck down specific provisions in those two cases, and those exact restrictions are off limits for states. But, beyond that, Chief Justice Roberts, the Court’s new abortion swing Justice, is signaling that he will likely see no constitutional problem with the panoply of abortion obstacles that states have placed (and will place) in the way of patients seeking an abortion (which sociologist Carole Joffe and I wrote a book about this year).
In other words, June Medical, like Casey, is good for one ride only. Beyond that, the Chief has no problem with patients suffering the consequences of burdensome abortion restrictions.
David S. Cohen is a professor of law at Drexel University’s Thomas R. Kline School of Law.