Featured Article

June Medical Services v. RussoPolitics As Usual, the Beginning of the End for Roe v. Wade…or Both?

Bioethics in Law & Culture                                                                                                                           Summer 2020     vol. 3  issue  3

Catherine Glenn Foster, M.A., J.D.

President & CEO of Americans United for Life

I. Introduction

 

On June 29, 2020, the U.S. Supreme Court released its ruling in June Medical Services v. Russo.[1] If you read the headlines about the Louisiana abortion decision, you probably got a skewed vision of what actually happened—what the Court determined, and what the case means for the future of abortion jurisprudence.

 

True, Chief Justice Roberts did join the pro-abortion wing of the Court to strike down Louisiana’s health and safety law, indicating that he was bound by precedent—the very precedent he had dissented from and still publicly recognizes as flawed. True, he could instead have joined with the four dissenters, Justices Thomas, Alito, Gorsuch, and Kavanaugh, who would have upheld the common-sense statute. And true, the outcome was a tragic loss for the women of Louisiana whose lives are on the line. But in June Medical Roberts also signaled that he would not apply the rationale of that precedent to future abortion cases, and that going forward, he will be more deferential to the states when reviewing abortion restrictions.

 

For the immediate future, nothing has really changed: The Court was not going to overturn Roe v. Wade in this case. It won’t be overturned until there is another Justice on the Court who recognizes that Roe was wrongly decided. But the Chief Justice has left a trail of breadcrumbs for pro-life advocates and life-affirming lawmakers to follow, showing us the way forward to overturn Roe. So instead of getting weighed down by the disappointing outcome of June Medical, we must focus our efforts on the next abortion cases coming through the pipeline from states dedicated to protecting women and children, and we must continue to help states pass smart abortion bills in 2021.

 

II. History and Legal Framework

 

In order to understand June Medical, we have to understand its history. June Medical began as a lawsuit brought by the abortion industry to challenge a Louisiana law that required abortionists to hold admitting privileges at a nearby hospital. This law was crafted to end abortion industry carveouts and bring abortionists in line with the standard of practice for outpatient care in the state. In fact, all other outpatient surgeons in Louisiana are required to abide by that rule. The purpose of the rule was to protect women, so that if things go wrong in the course of an abortion—as they all too often do—the woman has every chance to receive lifesaving care. Additionally, June Medical raised the question of whether an abortionist has legal standing to challenge patient health and safety laws—i.e., whether they should be allowed to sue in the name of the women whom the laws are designed to protect.

 

The law that Louisiana passed in 2014 required physicians who perform abortions to have active admitting privileges at a hospital within 30 miles of the facilities where they perform abortions.[2] Based on the statute, a physician has “active admitting privileges” if he or she “is a member in good standing of the medical staff” of a licensed hospital, “with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”

 

          There were three reasons for this law:

 

First, the law created a uniform standard by bringing abortionists under the same requirements that applied to physicians providing similar services (i.e., surgical procedures) at other surgical centers.

 

Second, it served a credentialing function. Hospitals perform more rigorous and intensive background checks than do abortion clinics in Louisiana. Requiring a physician to have admitting privileges at a hospital would help ensure that the physician has the necessary skills to perform relevant procedures—in this case, abortions.

 

Third, the law would help ensure that women who suffer complications from abortion procedures receive the correct standard of care by enabling the direct and efficient transfer of both the patient and her medical records to a local hospital.

 

Louisiana abortion business June Medical joined with two other abortion clinics and two abortionists to file a lawsuit on August 22, 2014, in the Middle District of Louisiana. June Med. Servs., LLC v. Kliebert, 250 F. Supp. 3d 27 (M.D. La. Aug. 22, 2014). The abortionists sought injunctive relief, arguing the law was an undue burden on women’s access to abortion. The district court granted a temporary restraining order, which prevented the law from going into effect as court proceedings progressed. After a trial, the judge granted a preliminary injunction enjoining the law, determining that the Louisiana law was unconstitutional.

 

The “undue burden” standard on which the plaintiffs relied comes from the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that case, the Court established the “undue burden” standard when considering whether an abortion regulation violates the Constitution. According to the Supreme Court, “[A]n undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[3]

 

In 2016, while the Louisiana suit was pending, the Supreme Court issued its decision in Whole Woman’s Health v. Hellerstedt.[4] By a 5-3 vote, the Court ruled that a provision of a Texas law, H.B. 2, that required abortion doctors to have admitting privileges at a local hospital, was unconstitutional. The Court’s rationale rested on the “undue burden” analysis as outlined in Casey.

 

The Hellerstedt decision also suggested that the Casey undue burden standard be interpreted to require a balancing test—that courts should “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” In effect, this adjustment would require every federal judge to conduct an intensive fact-finding exercise and examine science, social science, geography, and more in order to determine if a proposed regulation was more of a “burden” or a “benefit” to women. Rather than trust the legislative process, the Hellerstedt Court expanded its position as the National Abortion Control Board—despite the Court’s own prescient warning to courts in Gonzales v. Carhart not to strike down “legitimate abortion regulations . . . if some part of the medical community were disinclined to follow the proscription.”[5] Gonzales continues:

 

This is too exacting a standard to impose on the legislative power . . . to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether [it] is ever necessary to preserve a woman’s health . . . .[6]

 

One question that has been raised surrounding the June Medical litigation is whether the Louisiana law was materially similar or identical to the Texas law that the Supreme Court found unconstitutional in 2016 in Hellerstedt. But the Court’s ruling in Hellerstedt did not mean that all admitting privileges laws are per se unconstitutional—particularly for those Justices who believe that the “balancing” of burdens and benefits should be a factual analysis on a case-by-case basis. And the Hellerstedt ruling in no way established whether there was sufficient evidence in the record to show that Louisiana’s law would lead to the closure of a large number of abortion clinics. The case-by-case requirement meant that the Justices should have looked at all of the specific factual nuances in the record to determine whether June Medical was Hellerstedt 2.0, or if there were “stark differences” between Texas and Louisiana, as the Fifth Circuit held.

 

Looking at the underlying facts of litigation like Hellerstedt and June Medical is important. Abortion has a dirty and dangerous history in Louisiana—women have been injured because the abortion industry there is not following basic standards of care or adhering to basic health and safety standards. In fact, two of the abortion businesses that originally filed suit in June Medical closed for reasons unrelated to Act 620 after the lawsuit was filed—one was closed by the Louisiana Department of Health after failing to report the statutory rape of a minor, and the other for performing an abortion on a minor girl without any consent by—or even notification to—her parents, which was a violation of state law.

 

After Hellerstedt came down, the Louisiana case was sent back to the district court, with instructions to “engage in additional fact-finding required by” Hellerstedt.[7] On April 25, 2017, the district court entered final judgment and permanently enjoined the law. The district court determined that the Louisiana law’s benefits were minimal, but its burdens were many. Ultimately, it ruled that Act 620 was unconstitutional under the “undue burden” standard from Casey, as modified in Hellerstedt.

 

On appeal, the Fifth Circuit reversed and ruled 2-1 in favor of Louisiana’s law. The Fifth Circuit noted that there were “stark differences” between the facts and evidence in the Texas case and those in Louisiana’s case. Unlike in Texas, there was no evidence that any Louisiana abortion business would close as a result of the law.  The Fifth Circuit concluded that Act 620 would—at worst—cause up to one hour of delay for abortion procedures at one of Louisiana’s three clinics. Its view of Act 620 was that it did not create an undue burden for women seeking abortions.

 

III. June Medical Reaches the Supreme Court

 

June Medical appealed to the en banc Fifth Circuit, which was denied. In April 2019, June Medical filed a petition for certiorari to the U.S. Supreme Court. Louisiana opposed the petition, and also asked the Court to take up an additional question: whether an abortion provider has third-party standing to challenge a health and safety regulation, like the admitting privileges requirement at issue here.  Usually, to have standing, a party must bring a lawsuit on its own behalf. But sometimes, third parties can bring a lawsuit on behalf of another injured party. Traditionally, third-party standing doctrine requires: 1) a “close” relationship between the third party and the person who possesses the right, and 2) a “‘hindrance’ to the possessor’s ability to protect his own interests.”[8]

 

But like many issues surrounding the Court’s jurisprudence, abortion is treated differently from other similar cases for third-party standing purposes. In Singleton v. Wulff, shortly after Roe, the Court stated that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”[9] Since then, many lower courts—and even the Supreme Court—have generally assumed that abortion businesses have third-party standing on behalf of women seeking abortions. This assumption is not predicated on any of the meaningful, particularized analysis that is required in other contexts when determining third-party standing.

 

The Supreme Court granted certiorari on both petitions to examine the following questions:

 

  1. Whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf;

 

   2. Whether objections to prudential standing are waivable; and

 

   3.  Whether the U.S. Court of Appeals for the 5th Circuit’s decision                            upholding Louisiana’s law requiring physicians who perform abortions to          have admitting privileges at a local hospital conflicts with the Supreme              Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.[10]

 

As disclosure, Americans United for Life has been deeply involved in this case from the very beginning. AUL Chief Legal Officer and General Counsel Steven H. Aden (prior to joining AUL) was co-counsel for Louisiana at the trial of the June 2016 case, through the first appeal. At Louisiana’s request, AUL supported Louisiana’s petition asking the Supreme Court to hear the case with an amicus brief documenting Louisiana’s abominably dirty and dangerous abortion industry.[11] After the Supreme Court agreed to hear the case, AUL submitted a brief on behalf of 207 bicameral, bipartisan Members of Congress (the most Members ever to speak out in an abortion brief), who reviewed the abysmal history of unsafe abortion practices that Act 620 addressed and called on the Supreme Court to reconsider Roe v. Wade.[12] AUL also filed a brief on our own behalf,[13] authored by AUL Senior Counsel Clarke Forsythe and based on his groundbreaking article “A Draft Opinion Overturning Roe v. Wade,” published in the Georgetown Journal of Law & Public Policy in 2019.[14]

 

AUL’s legal team worked closely with Louisiana’s legal staff in preparation for the oral argument, providing legal strategy and moot courts for Louisiana’s Supreme Court advocate in New Orleans and in the District of Columbia. We also coordinated the coalition of pro-life groups, messaging, the National Press Club press conference, and the rally on the steps of the Court.

 

IV. The Decision: Politics As Usual?

 

On June 29, 2020, the Court released its decision in June Medical.  It was deeply disappointing for many lawyers, many Court-watchers, and the legislators in Louisiana who had worked so hard to pass the life-saving law. Most importantly, the decision was heartbreaking for the pro-life community who is so concerned for Louisiana women, and for post-abortive women like myself who feel sidelined and marginalized by a Court that won’t even allow community leaders to protect the health and safety of the women whom the law is supposed to be protecting.

 

This was a 4-1-4 decision, so it creates no precedent to bind a future Court. Justice Breyer wrote for the plurality, joined by Justices Ginsburg, Sotomayor, and Kagan, who wrote no separate opinions. The plurality concluded that June Medical won on both standing and the merits of the case. Chief Justice Roberts concurred in the judgment, meaning that the plurality opinion will not serve as binding precedent. Most importantly, a majority of the Justices rejected the wide-open balancing test prescribed in Hellerstedt. And Justices Thomas, Alito, Gorsuch, and Kavanaugh each wrote separate, powerful dissents.

 

Eight Justices (all but Justice Thomas) agreed that Casey’s standard is the applicable one—but there are at least five different views of what applying that standard requires. Based on Chief Justice Roberts’ concurrence, it appears that Casey “with teeth” will be the standard going forward. There was almost no discussion of Casey’s “large fraction” test, which would articulate an “undue burden” as something that prevents a “large fraction” of women from obtaining an abortion. The fact that it was virtually ignored suggests that the test may have gone out of favor with the Court. Additionally, questions of standing and admitting privileges remain open issues. June Medical did not settle anything about the facial validity of such laws generally, just the Louisiana law. Similarly, the correct application of stare decisis remains an open issue. While Chief Justice Roberts noted the importance of the doctrine in his concurrence, he has historically been eager to overturn precedents with even longer histories, such as Janus and Citizens United.[15]

 

V. The Justices’ Rationales

 

A. Justice Breyer’s Plurality

 

Justice Breyer wrote an opinion for the plurality that was similar in many ways to his opinion for the Court in Hellerstedt. This time, Breyer largely camped on the impact of the law—the difficulty in getting privileges—and spent less time on the medical benefits of the admitting privileges rule. Breyer concluded that “Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana.” June Med. Servs., slip op. at 35 (plurality). As to the Act’s medical benefits, Justice Breyer did not find clear error in the district court’s findings “that the admitting privileges requirement “[d]oes [n]ot [p]rotect [w]omen’s [h]ealth,” provides “no significant health benefits,” and makes no improvement to women’s health “compared to prior law.” Id. at 36 (quoting June Med. Servs. v. Gee, 250 F. Supp. 3d at 86 (boldface deleted)). Thus, he concluded that Act 620 was unconstitutional. June Med. Servs., slip op. at 38 (plurality).

 

As to third-party standing, Justice Breyer concluded for the plurality, “We think that the State has waived that argument.” Id. at 12. He asserted that the third-party standing rule is only a judicially created prudential consideration, not an issue involving Article III’s “case or controversy requirement,” and thus it “can be forfeited or waived.” Id. Breyer argued that because Louisiana had urged the District Court to decide the case on the merits and had conceded standing in the original proceeding before the district court, it had waived its right to challenge the standing of abortion providers under the third-party standing rule. Id. at 12-13. But Breyer also maintained, “We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” Id. at 14 (internal citations omitted). And he noted that third-party standing has been held appropriate in cases where the “enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Id. Thus, he concluded, “the obvious claimant” and “the least awkward challenger” is the party upon whom the challenged statute imposes “legal duties and disabilities.” Id. In this case, that party is the abortion provider. Id. at 14-16.

 

Justice Breyer began his consideration of the constitutionality of Act 620 by explicitly affirming Casey and Hellerstedt. Id. at 16. He reiterated the Casey rule that “‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’” Id. Breyer restated Hellerstedt’s gloss on Casey that “‘[u]nnecessary health regulations’” impose an unconstitutional “‘undue burden’” if they have “‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion,’” and further that “courts must ‘consider the burdens a law imposes on abortion access together with the benefits those laws confer.’” Id. at 16.

 

Justice Breyer argued that a clear error standard was appropriate in reviewing the district court’s findings. Id. at 16-18. The plurality reviewed the district court’s findings and agreed with the lower court that “[e]ven if Act 620 could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden.” Id. at 19 (citing June Med. Servs. v. Gee, supra, 250 F. Supp. 3d at 88). Considering the burdens imposed on abortion providers by the law, Justice Breyer maintained that anti-abortion sentiment would make it impossible for abortionists to gain admitting privileges and argued that the result would be the closure of clinics, making it harder for women to get abortions. Id. at 19-35. In turn, the closure of clinics would increase burdens on women by forcing them to drive further and wait longer for an abortion, and this in turn would preclude some women from abortion access and increase the risk that a woman will experience complications. Id. at 34.[16]

 

The plurality by and large ignored the Chief Justice’s concurrence, and it did not address Roberts’ view of precedent or of stare decisis.

 

B. Chief Justice Roberts’ Concurrence

The Chief Justice concurred in the judgment only, June Med. Servs., slip op. at 16, meaning that he did not necessarily agree with the reasoning employed by the plurality. Although acknowledging his dissent in Hellerstedt and his continued belief that Hellerstedt was “wrongly decided,” Roberts said, “The question today . . . is not whether [Hellerstedt] was right or wrong, but whether to adhere to it in deciding the present case.” Slip op. at 2. Stare decisis, absent special circumstances, requires the Court to treat like cases alike, Roberts urged. Id. Stare decisis ensures humility in recognizing that “today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them.” Id. at 3. It prevents arbitrary discretion; promotes “evenhanded, predictable, and consistent development of legal principles[;] fosters reliance on judicial decisions[;] and contributes to the actual and perceived integrity of the judicial process.” Id. at 3 (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Stare decisis is not an “inexorable command,” but can only be overturned by additional factors, such as its administrability, fit with subsequent factual and legal developments, and reliance interests. “Stare decisis is pragmatic and contextual, not ‘a mechanical formula of adherence to the latest decision.’” Id. at 4 (citing Helvering v. Hallock, 309 U.S. 119 (1940)).[17]

 

While the parties agreed that the Casey undue burden standard applies, Roberts posited his own understanding of the Casey undue burden standard. Significantly, Roberts disagreed that Hellerstedt interprets Casey’s undue burden standard to require courts to balance a law’s burdens with the benefits that law confers. In language that seemed derisive of the Casey “mystery passage,”[18] Roberts mused:

 

In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in protecting the potentiality of human life and the health of the woman, on the one hand, against the woman’s liberty interest in defining her own concept of existence, of meaning, of the universe, and of the mystery of human life on the other. . . . There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. . . . Pretending 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.

 

Id. at 6 (internal citations omitted). Roberts contended that “[n]othing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts. . . . Casey instead focuses on the existence of a substantial obstacle . . . .” Id.

 

Interpreting Casey as a balancing test would extend Casey beyond its holding and adopt the position advocated by former Justice John Paul Stevens in his partial dissent in Casey:

 

The only place a balancing test appears in Casey is in Justice Stevens’s partial dissent. “Weighing the State’s interest in potential life and the woman’s liberty interest,” Justice Stevens would have gone further than the [Casey] plurality to strike down portions of the State’s informed consent requirements and 24-hour waiting period. But that approach did not win the day.

 

Id. at 10 (citing Casey, 505 U.S. at 916–920 (opinion concurring in part and dissenting in part)).

 

“The upshot of Casey is clear,” Chief Justice Roberts said. Id. “The several restrictions that did not impose a substantial obstacle were constitutional, while the restriction that did impose a substantial obstacle was unconstitutional.” Id. at 9. Although the Casey Court at times discussed the benefits of the regulations, “these benefits were not placed on a scale opposite the law’s burdens. Rather, Casey discussed benefits in considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’ So long as that showing is made, the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” Id. (quoting Casey, 505 U.S. at 877).[19]

 

Despite his professed adherence to the principle of stare decisis, a close reading of the Chief Justice’s opinion confirms that he utterly rejects Hellerstedt in favor of a vigorous Casey standard. “Stare decisis principles also determine how we handle a decision [i.e., Hellerstedt] that itself departed from the cases that came before it [i.e., Casey]. 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 [Hellerstedt].” Id. at 4 (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 231 (1995) (plurality opinion)). Thus, Chief Justice Roberts appears to add his fifth vote to the dissenters’ four to intentionally overturn Hellerstedt sub silentio (or at least sideline it) and to call for a return to a vigorous application of the Casey standard.[20] Alito stated for four Justices in dissent that the Chief Justice “votes to overrule [Hellerstedt] insofar as it changed the Casey test,” id. at 4 (Alito, J., dissenting), and Roberts did not dispute the assertion. He likewise let lie Justice Kavanaugh’s statement that five Justices rejected the Hellerstedt cost-benefit balancing test. Id. at 1-2 (Kavanaugh, J., dissenting).

 

Chief Justice Roberts cited the Supreme Court’s decision in Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam), as illustrative of the proper understanding of Casey’s undue burden standard. In Mazurek, a challenge to a state law restricting the performance of abortions to licensed physicians, it was “uncontested that there was insufficient evidence of a ‘substantial obstacle’ to abortion.” Id. at 10 (Roberts, C.J., concurring) (citing Mazurek, 520 U.S. at 972). In fact, the Mazurek Court found that the abortion providers’ argument that all health evidence contradicted the State’s claim that there was a health basis for the law was “squarely foreclosed by Casey itself.” Id. at 10-11 (citing Mazurek, 520 U.S. at 973). Thus, “[u]nder Casey, abortion regulations are valid so long as they do not pose a substantial obstacle and meet the threshold requirement of being ‘reasonably related’ to a ‘legitimate purpose,’” the Chief Justice concluded. Id. at 10 n.2 (quoting Casey, 505 U.S. at 878, 882).

 

On the merits, the Chief Justice noted that Hellerstedt held that Texas’s admitting privileges requirement placed “a substantial obstacle in the path of women seeking a pre-viability abortion.” Id. at 1. The Texas and Louisiana statutes are nearly identical, he said. Id. at 2, 12, 16. Here, the District Court found the Louisiana law would restrict access to the same degree or worse than the Texas law in Hellerstedt, and that the Louisiana law would result in “longer waiting times for appointments, increased crowding and increased associated health risk.” Id. at 14 (citing June Med. Servs., 250 F. Supp. 3d at 81). It further determined that Louisiana hospitals may deny admitting privileges for reasons unrelated to a doctor’s competency, Id. at 14-15, and that the five remaining Louisiana abortion doctors had attempted in good faith to comply with the statute, but they had little success. Id. at 15 (referencing June Med. Servs., 250 F. Supp. 3d at 78). Under clear error, Chief Justice Roberts would not disturb these factual conclusions, although he noted that the holding was “fact-specific.” Id. at 15 n.6, 16.

 

Finally, Chief Justice Roberts only addressed the standing argument in a brief footnote, indicating that “for the reasons the plurality explains,” he agreed the abortion providers had third party standing. Id. at 12 n.4. His failure to explain why, coupled with the fact that the plurality cited two reasons why they found standing – waiver and precedent – and that Roberts was not specific about which reason (or both) was the basis for his position, appear to leave the issue wide open for future cases.

 

Although the Chief Justice had the option of joining the plurality, or merely stating his concurrence in the judgment, he chose to articulate his position in some depth. Thus, unlike former Justice Anthony Kennedy, who simply joined the Court’s opinion in Hellerstedt without voicing his own opinion on the decision, 136 S. Ct. at 2300, Chief Justice Roberts’ views are in the open, and serve as a framework for advocacy going forward. This is especially true given that Roberts’ views represent a fifth vote for any future abortion decision by the current Court.

 

CONTINUED

 

_________________________

[1] June Medical Services, LLC v. Russo, __ S. Ct. __, 2020 WL 3492640 (2020).

[2] Act No. 620, 2014, https://www.legis.la.gov/legis/ViewDocument.aspx?d=914189.

[3] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992).

[4] Whole Woman’s Health v. Hellerstedt, 579 U.S. __ (2016).

[5] 550 U.S. 124, 166 (2007).

[6] Gonzales v. Carhart, 550 U.S. 124 (2007).

[7] June Med. Servs., L.L.C. v. Gee, No. 16-30116, 2016 WL 11494731, at *1 (5th Cir. Aug. 24, 2016).

[8] Kowalski v. Tesmer, 543 U.S. 125, 130 (2004).

[9] Singleton v. Wulff, 428 U.S. 106 (1976).

[10] Pet. For a Writ of Cert., June Med. Servs. v. Russo, 591 U.S. ___ (U.S. Apr. 17, 2019) (No. 18-1323); Conditional Cross-Pet. at i, Russo v. June Med. Servs., 591 U.S. ___ (U.S. May 20, 2019) (No. 18-1460).

[11] Brief Amicus Curiae of Americans United for Life in Support of Cross-Petitioner. https://aul.org/wp-content/uploads/2019/06/18-1460-Amicus-Brief-of-Americans-United-for-Life.pdf.

[12] Brief Amici Curiae of 207 Members of Congress in Support of Respondent and Cross-Petitioner.  https://aul.org/wp-content/uploads/2020/01/18-1323-Amicus-Brief-of-207-Members-of-Congress.pdf.

[13] Brief Amicus Curiae of Americans United for Life in Support of Respondent and Cross-Petitioner. https://aul.org/wp-content/uploads/2020/01/18-1323-Amicus-Brief-of-Americans-United-For-Life.pdf.

[14] Forsythe, Clarke. “A Draft Opinion Overruling Roe v. Wade.” Georgetown Journal of Law and Public Policy, 2019. https://www.law.georgetown.edu/public-policy-journal/wp-content/uploads/sites/23/2018/10/16-2-Draft-Opinion.pdf.

[15] Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. __ (2018); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[16] Breyer’s opinion suggests that for the plurality, Hellerstedt and June Medical do not establish a “floor” for finding a burden undue, since Breyer intimates that even transfer agreements are beyond the pale:

 

Still other hospitals have requirements that abortion providers cannot satisfy because of the hostility they face in Louisiana. Many Louisiana hospitals require applicants to identify a doctor (called a “covering physician”) willing to serve as a backup should the applicant admit a patient and then for some reason become unavailable. The District Court found “that opposition to abortion can present a major, if not insurmountable hurdle, for an applicant getting the required covering physician.”

 

June Med. Servs., slip op. at 22-23 (record citations omitted); cf. Hellerstedt, 136 S. Ct. at 2318 (holding law establishing ambulatory surgical center requirements for abortion providers imposed an “undue burden” without specifying which requirements could pass muster and which could not).

[17] Arguably, the Chief Justice protests a little too much. June Medical notwithstanding, the list of cases in which Roberts has voted to overturn precedent continues to grow. See, e.g., Knick v. Township of Scott, 139 S. Ct. 2162, 2179 (2019) (Chief Justice Roberts wrote the opinion for a 5-4 majority overruling Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985)); Citizens United v. Fed. Election Cmm’n,  558 U.S. 310, 319 (2010) (Roberts voted to overturn McConnell v Fed. Election Comm’n, 540 U.S. 93 (2003)); Janus v. Am. Fed. of St., Cty., and Mun. Emp., 138 S. Ct. 2448, 2460 (2018) (Roberts joined Justice Alito’s opinion to overturn Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1490 (2019) (overruling Nevada v. Hall, 440 U.S. 410 (1979).

[18] The passage, from the Casey joint plurality opinion, states, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 505 at 851.

[19] Chief Justice Roberts agreed with Justice Gorsuch that Casey “expressly disavowed any test as strict as strict scrutiny.” June Med. Servs., slip op. at 10 n.2 (citing June Med. Servs., slip op. at 20 (Gorsuch, J., dissenting). In Roberts’ view, Casey recognized that strict scrutiny would give “too little acknowledgement and implementation” to the State’s “legitimate interests in the health of the woman and in protecting the potential life within her.” Id.

[20] Chief Justice Roberts’ stare decisis reasoning appears rather ad hoc, combining the view that one decision can create binding precedent (reflecting the heyday of strict precedent in the Nineteenth Century – see Charles J. Reid, Jr., Judicial Precedent in the Late Eighteenth and Early Nineteenth Centuries: A Commentary on Chancellor Kent's Commentaries, 5 Ave Maria L. Rev. 47, 57 (2007)) – with the flexible doctrine of Adarand Constructors. Compare J. O’Connor’s plurality opinion in Adarand:

 

“Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984). In deciding whether this case presents such justification, we recall Justice Frankfurter’s admonition that “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” Remaining true to an “intrinsically sounder” doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation, “special justification” exists to depart from the recently decided case.

 

Adarand Constructors, 515 U.S. at 231 (emphasis added) (quoting Helvering, supra, 309 U.S. at 119 (Frankfurter, J., majority opinion) (citation omitted)). Roberts fails to explain why, if the “Adarand" [or Helvering] doctrine” applies to Hellerstedt, it couldn’t apply to Casey or to Roe.