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Substantial Obstacles after June Medical Services: ACOG v. FDA

By Rachel Rebouché

In June Medical Services v. Russo, the Supreme Court held that a Louisiana law requiring that physicians obtain admitting privileges at a nearby hospital was unconstitutional. Had the law taken effect, all but one provider would have lost the ability to deliver abortion care in the state. Despite the result, a number of commentators have expressed concern about the future of abortion rights. The source of their concerns is the Chief Justice’s application of the undue burden test—the standard for judging the constitutionality of an abortion restriction—established in Planned Parenthood v. Casey.

Justice Breyer, who wrote the judgment of the Court in June Medical Services, balanced the benefits and burdens conferred by the law, finding that the statute offered no benefit for people’s health and created significant burdens on the delivery of abortion. The admitting-privileges requirement does not protect patients’ safety because complications from abortion are rare and thus rarely will a patient need admission to a hospital. Moreover, admitting privileges, which the district court found each provider had pursued in good faith, do not determine a physician’s competency or credentials.

Although Chief Justice Roberts’s concurrence provided the fifth vote to strike down the law, Roberts wrote separately to emphasize that whether the Louisiana law had any identifiable benefit for patients was immaterial. The Court need only address what burdens the law imposed—if a law establishes “significant obstacles” to abortion. Roberts’s concurrence clearly departs from Breyer’s approach of weighing the law’s benefits against its burdens. Breyer’s formulation would render a law unconstitutional if it had no health benefits but erected a minimal obstacle to abortion care. Roberts’s approach would not: a law only fails the undue burden test—no matter how unsuccessful legislation is in achieving its purported goals—if the restriction renders abortion access substantially more difficult.

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