By Mary Ziegler
Before the Supreme Court’s decision in June Medical Services v. Russo, many wondered if the Supreme Court’s new conservative majority would begin to do away with precedents, starting with the 2016 decision in Whole Woman’s Health v. Hellerstedt. But Chief Justice John Roberts voted with his liberal colleagues that Louisiana’s admitting privileges law could not “stand under our precedents.” And yet he felt curiously free to rewrite the very same precedents he claimed to respect.
Whole Woman’s Health devastated the antiabortion movement not because the Court went out of its way to understand the experiences of people who need abortion or even the constitutional justifications for abortion access. No, Whole Woman’s Health stung because it gave the undue burden test real meaning.
Not anymore. Roberts made sure that the lower courts will no longer balance the benefits and burdens of a law. More tellingly, he stressed that ever since the Supreme Court upheld the federal Partial-Birth Abortion Ban in Gonzales v. Carhart, “state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
Scientific uncertainty is no longer just a buzzword from the Gonzales decision. As Roberts well knows, scientific uncertainty is the justification for many of the abortion restrictions on their way to the Supreme Court.
Seventeen states ban abortion twenty-two weeks after a woman’s last missed menstrual period to prevent fetal pain. Most research suggests that fetal pain is not possible until the third trimester. But by design, National Right to Life Committee (NRLC), the organization championing these bans, has used scientific uncertainty to inch closer to criminalizing abortion outright.
“While some dispute the capacity of the 20-week unborn child to experience pain,” NRLC explains, “Gonzales makes clear that medical unanimity is not required in order for legislatures to make and act on determinations of medical fact.”
Roberts’ remarks on scientific uncertainty greenlight a second major restriction, so-called dismemberment abortion bans. NRLC designed these laws to ban the most common dilation and evacuation procedure, the technique most often used after the first trimester of pregnancy. Ten such bans have been signed into law. Some require patients to undergo an additional procedure before having a D&E while others ban the technique completely. These laws all cater to Roberts’ ideas about scientific uncertainty.
So do so-called heartbeat bans, which outlaw abortion when a physician can detect fetal cardiac activity, usually around the sixth to eighth week of pregnancy. Faith2Action, the group that designed these laws, knows full well that they contradict Roe and Casey. That is the point. Abortion opponents confident in the Supreme Court’s new conservative majority want to force a reckoning on Roe v. Wade. But even Faith2Action justifies its bill by relying on Roberts’ lauded scientific uncertainty.
The group claims to improve on viability, the point at which states can currently outlaw abortion. “[W]hile viability is uncertain and ambiguous,” testified Janet Folger Porter of Faith2Action, “the point at which an independent fetal heart rate is detectable is unambiguous and a strong predictor of survivability to term.”
As long as Whole Woman’s Health stood, these laws faced an uncertain fate. Now, antiabortion lawyers should be feeling much more confident.
By now, everyone has heard that John Roberts is an institutionalist, a tactician preoccupied with the Supreme Court’s legacy. That means that the thought of backlash might keep Roberts up at night. And nowhere is backlash more likely than with abortion. Most Americans have heard of Roe v. Wade and do not want it to be overruled.
June Medical illuminates how Roberts may be able to make his opinions backlash-proof, even as he unravels abortion rights. For the average layperson, June Medical is not easy reading. After all, Roberts joined his more liberal colleagues. Louisiana’s law is unconstitutional. Readers familiar with the idea of precedent recognize how much Roberts celebrated it.
Only those in the know recognize how much Roberts did to revive what had been the most promising antiabortion strategies. But the Chief Justice wants it that way. For there will be no backlash to any decision undoing abortion rights unless enough people understand what the Court has done. June Medical previews just how the Roberts Court may move past Roe and Casey.
Do not put it past Roberts to dismantle precedent while praising the idea of stare decisis. He has done it once already.
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law.