C. Dissenting Opinion of Justice Alito

 

Justice Alito would have remanded the case to the district court to require the joinder of a plaintiff with standing, but he also disagreed on the merits, finding there to be serious factfinding and conflict problems.

 

Justice Alito charged the plurality and the Chief Justice with error in holding that the admitting privileges requirement serves no valid purpose. June Med. Servs., slip op. at 9 (Alito, J., dissenting). “Under our precedent, the critical question in this case is whether the challenged Louisiana law places a ‘substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ Casey, 505 U. S., at 877 (plurality opinion). If a law like that at issue here does not have that effect, it is constitutional.’ Id. at 884 (joint opinion of O’Connor, Kennedy, and Souter, JJ.).” June Med. Servs., slip op. at 3 (Alito, J., dissenting). But June Medical argues that the standard should be lowered to “a law that has no effect on women’s access to abortion is nevertheless unconstitutional if it is not needed to protect women’s health,” Alito said. This argument may suit the business interests of abortion providers who desire to be free of otherwise neutrally-applied health and safety regulations, he said, but this test was rejected in Casey because it preferences abortionists over other regulated parties. Id. at 3-4.

 

Admitting privileges demonstrate a higher level of competence and performance than merely holding a medical license, Alito maintained. Id. at 5. Hospitals continuously determine competency and performance, whereas the state medical licensing board has no continued oversight. Id. at 6-7. Alito cited to the plethora of evidence of bad actors in Louisiana abortion facilities not being restrained by the licensing board or by their employers. Id. at 7-8. Citing to the amicus brief that Americans United for Life filed on behalf of 207 members of Congress, Justice Alito observed, “Because hospitals continue to evaluate doctors after privileges are granted, they may discover information that assists the Board in carrying out its responsibilities. In the past, hospitals have forwarded such information to the Board, and such referrals have led the Board to take serious disciplinary actions.” Id. at 7 (citing Br. for 207 Members of Cong. as Amici Curiae at 18-19, 19-20, June Med. Servs. v. Russo, 591 U.S. ____ (U.S. Jan. 2, 2020) (No. 18-1323) (noting “lifetime ban from obstetric surgery in Louisiana” and “one-year probation of medical license”). While there is plenty of room for discussion of the value of the law, that is not the Court’s role, but the role of State legislatures, Alito said. Id. at 8-9 (quoting Gonzales, 550 U.S. at 163). “When confronted with a genuine dispute about a law’s benefits, we have afforded legislatures ‘wide discretion’ in assessing whether a regulation serves  legitimate medical need and is medically reasonable even in the face of medical and scientific uncertainty.” Id. (quoting Gonzales, 550 U.S. at 163).

 

Hellerstedt should not be deemed controlling, Justice Alito said. Id. at 10-11. Hellerstedt’s decision was based on the effect of the act, not the language, but is now applied by the plurality and the concurrence to require a decision based on the language, not the effect. Id. at 10. But the application of this kind of law is a fact-based inquiry in each State, Alito observed, and there is no reason to think it would apply the same way everywhere. Id. The factors to consider include demand for abortion, geography, the number of abortion facilities and doctors, the distribution of the population, and abortionists’ ability to obtain privileges. Id. at 9-10. Unlike the Hellerstedt post-enforcement claim, the impact of Louisiana’s law was pre-enforcement, which was purely hypothetical, Alito observed. Id. at 11. Further, he said, the district judge made an inference about whether the doctors in this case would be able to obtain privileges, based in large part on the testimony of June Medical’s director and applying the “good faith” test. Id. at 13. This is already a nebulous test, Alito said, and there was no evidence that the judge considered the incentives of certain parties in their testimony:

 

If these doctors had secured privileges, that would have tended to defeat the lawsuit. Not only that, acquiring privileges would have subjected all the doctors to the previously described hospital monitoring, as well as any other obligations that a hospital imposed on doctors with privileges, such as providing unpaid care for the indigent. Thus, in light of the situation at the time when the doctors made their attempts to get privileges, they had an incentive to do as little as they thought the District Court would demand, not as much as they would if they stood to benefit from success.

 

Id. at 13-14 (citation omitted). Justice Alito went through the allegations of each of the Does concerning why they failed to obtain hospital privileges and described why perhaps they could not even meet the “good faith” standard. Id. at 15-24.

 

Justice Alito next addressed the third-party standing issue, although Justice Kavanaugh did not join this part of his dissent. Id. at 24. He asserted that the plurality’s holding that Louisiana had waived any objection to third-party standing was a misreading of the record, and while the Fifth Circuit declined to rule on the issue, the Supreme Court took up the issue on Louisiana’s cross-petition. Id. at 24-25. “We have a strong reason to decide the question of third-party standing because it implicates the integrity of future proceedings that should occur in this case,” Alito said. Id. at 25. “This case should be remanded for a new trial, and we should not allow that to occur without a proper plaintiff. Nothing compels us to forbear from addressing this issue.” Id. Justice Alito offered a clear rule for third-party standing in the abortion context:

 

When an abortion regulation is enacted for the asserted purpose of protecting the health of women, an abortion provider seeking to strike down that law should not be able to rely on the constitutional rights of women. Like any other party unhappy with burdensome regulation, the provider should be limited to its own rights.

 

Id. at 26. This rule is supported by precedent and follows from general principles regarding conflicts of interest, Alito argued. The Court has already held third-party standing is inappropriate where a potential conflict of interest exists between the plaintiff and the third party. Id. at 26 (citing Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 9, 15 n.7 (2004)). In this case, June Medical fails both prongs of the third-party standing test. The plaintiff’s own testimony demonstrates that there is no “close relationship,” and sometimes they spend as little as “2-3 minutes” together. Id. at 28. There is also no “hindrance” to the third party bringing a suit, Alito noted, as courts use pseudonyms for plaintiffs regularly, there is a sufficient pool of legal help available to those seeking to challenge abortion restrictions, and mootness is not a concern because of the “capable-of-repetition-yet-evading-review” exception that has been invoked in the abortion context. Id. at 29. “[I]t is deeply offensive to our rules of standing to permit [abortion businesses] to sue in the name of their patients when they challenge laws enacted to protect their patients’ safety,” he concluded. Id. at 33.

 

D. Dissenting Opinion of Justice Thomas

 

Justice Thomas filed a separate dissent, in which he asserted that third-party standing is an Article III jurisdictional requirement and that the courts below lacked jurisdiction to proceed to the merits. June Med. Servs., slip op. at 3-4 (Thomas, J., dissenting). Justice Thomas’ dissent seems clearly designed to layout the stare decisis factors to set the stage for the next challenge to third-party standing in abortion cases.

         

“There is no controlling precedent that sets forth the blanket rule advocated for by plaintiffs here—i.e., abortionists may challenge health and safety regulations based solely on their role in the abortion process,” said Thomas. Id. at 3. Thomas maintained that because standing is jurisdictional, “No waiver, however explicit, could relieve us of our independent obligation to ensure that we have jurisdiction before addressing the merits of a case.” Id. The Court’s “prudential standing” rule has been inconsistently applied and has been ratcheted back in recent cases, Thomas observed. Id. at 5 (citing Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) and Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)). Most recently, in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Court appeared to incorporate the rule against third-party standing into its understanding of Article III’s injury-in-fact requirement. Id. (referencing Spokeo, 136 S. Ct.). Spokeo held that to establish an injury-in-fact, a plaintiff must “show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. (citing Spokeo, 136 S. Ct. at 1548 (internal citation omitted)).

 

The ability of abortionists to sue by asserting standing on behalf of clients has not been “settled,” despite the plurality’s position, said Justice Thomas. Id. at 10. Although the Court has allowed these suits to proceed, it has rarely addressed the standing issue. Id. The only case to directly address this issue was Singleton in 1976, in which a plurality of Justices found standing, and Justice Stevens agreed in concurrence based on the financial interest of the abortionists. Id. at 10-11 (citing Singleton, supra, at 113-118, 121) (challenging a State’s regulation against providing Medicare reimbursements for abortion). In this case, the abortionists’ only claim is the violation of purported substantive due process rights of their patients, Thomas pointed out. Id. at 12.

 

Further, Louisiana’s law represents a constitutionally valid exercise of the State’s traditional police powers, Thomas argued, since the Constitution does not constrain the States’ ability to regulate or even prohibit abortion. Id. at 14. “This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.” Id. (quoting McDonald v. Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring in part and concurring in the judgment). “The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical,” Thomas charged. Id. at 17.

 

“The fact that no five Justices can agree on the proper interpretation of our precedents today evinces that abortion jurisprudence remains in a state of utter entropy,” Justice Thomas concluded. Id. at 18-19.[21] “[T]his Court’s abortion jurisprudence has failed to deliver the ‘principled and intelligible’ development of the law that stare decisis purports to secure.” Id. at 19. “Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.” Id. at 20.

 

E. Dissenting Opinion of Justice Gorsuch

 

The first of Justice Gorsuch’s “eight reasons” why the Court’s holding in June Medical was wrong was that there was ample legislative and trial record evidence to prove that Act 620 would benefit the public by requiring abortion doctors and facilities to meet certain health and safety standards. June Med. Servs., slip op. at 2-5 (Gorsuch, J., dissenting). The legislature heard testimony about doctors reusing single-use instruments and utilizing rusty or dirty surgical instruments, and emergency physicians providing medical assistance to women abandoned by their abortion doctors after the procedure, he noted. Id. at 3-4. Moreover, while other health facilities such as outpatient surgical centers have had to meet certain standards for health and safety, there has been no detriment to the health of Louisiana citizens and no massive shut-down of ambulatory surgical centers, he noted. Id. at 5. The Court ignored all of this evidence to hold that there was no benefit from Act 620. “[T]he plurality declares that the law before us holds no benefits for the public and bears too many social costs. All while sharing virtually nothing about the facts that led the legislature to conclude otherwise,” Gorsuch concluded. Id. at 2.

 

Second, Justice Gorsuch said, June Medical lacked third-party standing because there was no “close relationship” between the plaintiffs and the women in whose name they had sued. Id. at 6. “[T]he abortion providers before us seek only to assert the constitutional rights of an undefined, unnamed, indeed unknown, group of women who they hope will be their patients in the future.” Id. Nor did the plaintiffs identify a hindrance preventing the women impacted by the law from pursuing a suit of their own. Id. at 6-7. Moreover, even if the plaintiffs could demonstrate third-party standing, it would be negated by the conflict of their interests, since Act 620 seeks to protect women from unsafe abortion providers – some of whom are plaintiffs in the case. Id. at 7.

 

Nor did Louisiana waive the standing argument, Justice Gorsuch argued for his third point. The standing issue was passed on in the lower courts, he said, and moreover, forfeited or waived arguments can be heard by the Court if there are concerns about third-party rights. Id. at 7-8.

 

Fourth, echoing Justice Alito’s dissenting opinion in Hellerstedt, 136 S. Ct. at 2343 n.11, Justice Gorsuch maintained that the Court misapplied the “substantial obstacle” test by analyzing whether there will be a burden on women who are “actually” restricted by the law – not whether there will be a burden on all women in Louisiana. “Any woman not burdened by the challenged law is deemed ‘irrelevant’ to the analysis,” he pointed out. June Med. Servs., slip op. at 10 (Gorsuch, J., dissenting). Instead of asking if the law is unconstitutional in all its applications, the Court demands the law be constitutional in all its applications in order to be upheld.[22]

 

Fifth, he would not have found the “irreparable harm” necessary for the issuance of an injunction. Instead of demonstrating that irreparable harm was likely, he said, June Medical argued generalized doomsday assumptions about mass closures of abortion clinics. Id. at 11-12. “[T]oday’s decision proceeds to accept one speculative proposition after another to arrive at what can only be called a worst-case scenario,” he said. Id. at 11.

 

Sixth, he said, instead of reviewing the lower court’s application of the law critically, the Court engaged in a deferential review and adopted the lower court’s application. “Today’s decision proceeds on the remarkable premise that, even if the district court was wrong on the law, a duly enacted statute must fall because the lower court wasn’t clearly wrong.” Id. at 15. “Not only does today’s decision treat factual questions as if they were legal ones, it treats legal questions as if they were facts,” he contended. Id.

 

Seventh, Justice Gorsuch took issue with the Chief Justice’s failure to provide a clear and predictable rule for lower courts to apply. “[U]nder the concurrence’s test it seems possible that even the most compelling and narrowly tailored medical regulation would have to fail if it placed a substantial obstacle in the way of abortion access. Such a result would appear to create yet another discontinuity with Casey, which expressly disavowed any test as strict as strict scrutiny.” Id. at 20 (referencing Casey, 505 U.S. at 871).

 

Eighth and finally, Justice Gorsuch argued that the Chief Justice had announced a newly discovered test from Hellerstedt: a substantial obstacle test that requires the consideration of burdens without considering the benefits of the law. This, he said, is not stare decisis at all, but a misapplication of stare decisis. Id. at 19.[23]

 

F. Dissenting Opinion of Justice Kavanaugh

 

Justice Kavanaugh, along with four other members of the Court, rejected the cost-benefit standard in Hellerstedt by joining Justice Alito’s dissenting opinion. For himself, Kavanaugh stated that additional factfinding was necessary to properly evaluate Act 620. “[T]he factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors (Does 2, 5, and 6) cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.” June Med. Servs., slip op. at 2 (Kavanaugh, J., dissenting). Justice Kavanaugh would have remanded the case for further fact-finding on this issue. Id.[24]

 

VI. Key Takeaways After June Medical

 

A. The Chief Justice’s Opinion Controls

 

Rather than a clear 5-4 decision against Louisiana, June Medical functions as a 4-1-4 “plurality opinion.” Based on the rule from Marks v. United States, 430 U.S. 188, 193 (1977), the narrowest interpretation of the decision controls. Here, that means the Chief Justice’s concurrence is considered the controlling opinion on the proper standard of review for abortion cases moving forward.

 

B. Planned Parenthood v. Casey Is the Standard

 

Justice Roberts’ view on Casey is the controlling standard moving forward. This replaces the balancing test that Justice Breyer discusses, which was created in Hellerstedt. Moving forward, the Court will look to whether an abortion regulation is reasonably related to a medical purpose (per Gonzales v. Carhart), and does not impose an “undue burden” on access to abortion (per Hellerstedt and June Medical).

 

C. June Medical Does Not Foreclose Admitting Privileges Laws

 

It is possible for admitting privilege laws to still pass the Casey test—the question will be how much of an impact those laws will have on the abortion facilities in the states where they are passed. Looking at a few examples: Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) deemed that admitting privileges law passed the “rational basis” test, but that they were unduly burdensome to women seeking abortions because the only abortion clinic in the state would have closed. In Planned Parenthood of Ala. v. Strange, 172 F. Supp. 3d 1275, 1289 (M.D. Ala. 2016), there was an undue burden where the law would have resulted in three of Alabama’s five largest clinics closing and reducing abortions in the state by 40 percent. Whereas in  Planned Parenthood of Ark. & E. Okla. v. Jegley, 864 F.3d 953, 959, n.8 (8th Cir. 2017), the Court noted: “We are skeptical that [a reduction in abortion of] 4.8 to 6.0 percent is sufficient to qualify as a ‘large fraction’ of women seeking medication abortions in Arkansas.” And in Cincinnati Women’s Servs. v. Taft, 468 F.3d 361, 373 (6th Cir. 2006), the Court found that a 12% reduction in abortion access was an insufficiently “large fraction” to constitute an undue burden.

 

VII. What’s Next?

 

Pro-abortion groups know that June Medical is no victory for them. A lawyer for the Center for Reproductive Rights, which brought the case, described the outcome as “Roberts plant[ing] a flag to mark the battlegrounds for future abortion fights.”[25] Pro-abortion rights lawyer Mark Stern said that “the chief justice . . . whittled down the holding of Hellerstedt, replacing its balancing test with a stingier rule that may give states broader leeway to restrict abortion.”[26]

 

The bottom line is that although the result in June Medical was incredibly disappointing for those of us who care about the Louisiana women whose lives are at risk because the Supreme Court struck down a common-sense health and safety protection; legally, June Medical is good news and represents progress in the fight for life in the courts. June Medical settled nothing whatsoever in the legal fight over abortion. The Chief Justice’s separate opinion was calculated to settle nothing, and in fact, to invite future abortion cases. It does not even settle whether emergency admission laws are permissible, only that Louisiana’s was not. After June Medical, it is at least clear that a majority of Justices have abandoned the Hellerstedt “balancing test” for abortion laws, in which federal judges were called on to balance the benefits and burdens of abortion legislation and strike down those that, on balance, were more burdensome than beneficial. That in itself is a big step forward for pro-life legal advocates and states. After June Medical, there are still four pro-life Justices on the Court and one who appears ambivalent about the “right to abortion” found in Roe and Casey. That leaves room for good, strong legal advocacy, which the states and the pro-life community will continue to apply with vigor.

 

So where do we go from here? The June Medical decision changes nothing, but it does issue an invitation to lawmakers who care about the human right to life to argue even more strongly that abortionists do not have the best interests of women in mind, and therefore cannot be deemed to have legal standing to represent them. It also signals that well-reasoned, thoughtful health and safety and informed consent laws will be upheld.

 

Thankfully, states show no sign of giving up the fight. Even in the time of coronavirus and closed legislatures, many pro-life laws passed, or came close to being passed, in 2020, including:

 

  • Florida parental consent requirement (SB 404/HB 265)

  • Idaho conditional law (SB 1385)

  • Idaho Choose Life license plates (SB 1249)

  • Indiana fetal remains law (SB 299)

  • Iowa life-sustaining care (H 594)

  • Iowa 24-hour waiting period (H 594)

  • Louisiana mandatory reporting law (SB 433)

  • Louisiana resolution recognizing the work of pregnancy centers (SCR 61)

  • Mississippi Pre-Natal Nondiscrimination Act (HB 1295)

  • Oklahoma Unborn Person Wrongful Death Act (SB 1728)

  • Oklahoma Nondiscrimination in Health Care Coverage Act (HB 2587)

  • South Dakota Resolution against NEA’s pro-abortion stance (HCR 6020)

  • Tennessee omnibus (heartbeat/20-week + PRENDA + ultrasound) (HB 2263)

  • Utah conditional law (SB 174)

  • Utah fetal remains law (SB 67)

  • West Virginia Born-Alive law (HB 4007)

  • Wyoming campus defunding (U. of Wyoming) (HB0001H2048)

 

Pro-life legislation was introduced in 46 states. Even with coronavirus, even with all the difficulties our nation is facing, we are building momentum.

 

Now more than ever we see that much change will come from the bottom up, not from the top down. We must continue to build awareness about the dangers—physical and emotional—that abortion presents to women. Abortion isn’t a topic that we can sweep under the rug, or solve through litigation alone. We need to awaken people to the horror of abortion and inspire passion and engagement for life. We need to have frank conversations about our experiences with abortion, have compassion for women who find themselves unexpectedly pregnant, and listen to post-abortive women when they say that having an abortion does not solve their problems.

 

We will continue to support the advocates fighting for protections in the law and the good lawmakers who see and respond to the needs of their communities. We look towards the bravery of leaders like Senator Katrina Jackson, who authored the Louisiana bill. She is a powerful woman of color who understands what her community needs because she is a leader in that community—not a member of a faceless pro-abortion lobby seeking to promote abortions at the expense of women’s health and safety. We will fight to defend life-affirming community protections from the trial level all the way up to the Supreme Court. And more than ever we see how critically important it is that we appoint and confirm Justices who are clear that Roe is a disgrace and a travesty and must be relegated to the dustbin of history.

 

We also know that a brighter day lies ahead. Much work remains for Americans who care about the human right to life. But in Congress, the statehouses, the courts, and the hearts of everyday Americans, we are making progress. Public opinion is on our side. Gallup research on public opinion about abortion over time shows that, consistently, most Americans do not believe that abortion should be “legal under any circumstances.”[27] About 50% of Americans think that abortion should be legal only under certain stances, and about 20% think it should be illegal in all circumstances. These views have held steady over time, despite the pro-abortion lobby claiming that Americans believe in unfettered access to abortion.

 

Recent polling from Marist shows similar results.[28] When asked how the U.S. Supreme Court should handle Roe v. Wade, 39% surveyed said that the Court should either overturn Roe or keep Roe but add more restrictions to it. 20% of people who identified as pro-choice, and 19% of people who identified as Democrats thought the Court should keep Roe and add more restrictions. Also telling: 68% of pro-choice people, and 55% of Democrats supported laws that required doctors who perform abortions to have hospital admitting privileges—the very type of law that was at issue in June Medical.

 

In our own recent partnership with the non-partisan polling group, YouGov, Americans United for Life found strong support for regulations that are designed to keep women safe.[29] Seventy-eight percent of Americans believed that admitting privileges were important, 70% thought that abortion facilities should be held to the same medical standards as ordinary hospitals, and almost 74% of people supported states being allowed to pass safeguards to ensure that abortion facilities are in compliance with basic medical practices and sanitation.

And brand-new research conducted by Tricia Bruce of Notre Dame gives us more reason to be optimistic. Professor Bruce and her team undertook a huge qualitative study, surveying over 200 Americans about their opinions on abortion—the first study of its kind.[30] Professor Bruce’s findings confirm what we know to be true: that Americans don’t talk much about abortion, that their attitudes toward abortion are complex, and that regardless of whether Americans are pro-life or pro-choice, ordinary Americans do not see abortion as a “desirable good.” One of the study’s key findings: “Views range in terms of abortion’s preferred availability, justification, or need, but Americans do not uphold abortion as a happy event or something they want more of. Attitudinal differences about abortion’s morality and legality do not diminish the weightiness of abortion’s impact in real life, on real people. Acknowledging this does not resolve to a legal position, but makes room for humanity and for talking about hard things.”

 

The more Americans learn about abortion and get to the facts of the issue rather than just the political rhetoric that surrounds it, the more life-affirming their positions become. The majority of Americans reject Roe. They want major rollbacks on legalized abortion; they want to stop funding elective abortions with our taxpayer dollars. They realize that contrary to the narrative being spun by the pro-abortion lobby, abortion is not good, and it does not benefit women.

 

But most critically, we are seeing real-world lives saved. Abortions in America are now at their lowest rate since before Roe v. Wade,[31] and women facing unintended pregnancy are more and more likely to choose life.[32] That’s thanks, in part, to pro-life laws, sidewalk counseling, resources like pregnancy centers, scientific advances, and changing perceptions of abortion.

 

Even when the Supreme Court abandons us and abandons the Constitution, everyday Americans are waking up and choosing life. Women will be protected. Babies will be protected. We will win this fight. The Court cannot put this issue “to rest”—it is alive in the hearts of the American people. Hundreds of state laws across our nation reflect that reality. We care about children. We care about women. We care about human beings. We are about people over profits. And we will not stop until every woman and every child is welcomed throughout life and protected in law.

_______________________

[21] Even Justice Alito apparently would create a new standard of review on remand: “[T]he District Court should conduct a new trial and determine, based on proper evidence, whether enforcement of Act 620 would diminish the number of abortion providers in the State to such a degree that women’s access to abortions would be substantially impaired.” June Med. Servs., slip op at 3 (Alito, J., dissenting).

[22] This aspect of Justice Gorsuch’s dissenting opinion suggests that he would be receptive to the argument that the impact of abortion restrictions should be gauged by the standard of Salerno, United States v. Salerno, 481 U.S. 739, 745 (1987), rather than a version of the Casey “undue burden” standard. The Salerno standard for facial challenges states that a law will not be held unconstitutional unless “no set of circumstances exists under which the Act would be valid.” Id.

[23] Justice Gorsuch’s dissenting opinion highlights the fact that June Medical seems to freeze the Chief Justice in his own idiosyncratic version of stare decisis. The four Justices in the plurality propound a vigorous balancing test from Hellerstedt and hence have no occasion to reconsider either that case or Planned Parenthood v. Casey, let alone Roe. Justices Thomas, Alito, Gorsuch and Kavanaugh all disagree with the Chief Justice’s personal version of precedent.

[24] It is worth noting that the Supreme Court has four Justices (June Medical’s dissent) that understand the facts and law of abortion better than any four that have been on the Court at any time. The dissenters have a better understanding of the practical utility of admitting privileges in June Medical than they had in Hellerstedt. And Justice Gorsuch’s questions about Louisiana and the record in Louisiana seem to go to the failures of the Court’s abortion doctrine as a whole. Despite being one of the newest members of the Court, Gorsuch doesn’t write like an ingenue to the abortion debate. He calls the fact-finding by federal judges “the judicial version of a hunter’s stew,” June Med. Servs., slip op. at 17 (dissenting), and ends his 21-page dissent with the sober caution, “it [the Court’s decision] is a sign we have lost our way.” Id. at 21.

[25] Borchelt, Gretchen. “Symposium: June Medical Services v. Russo: When a ‘win’ is not a win.” SCOTUSblog, June 30, 2020. https://www.scotusblog.com/2020/06/symposium-june-medical-services-v-russo-when-a-win-is-not-a-win/.

[26] Stern, Mark Joseph. John Roberts’ Opinion Preserving Abortion Rights Is Also a Threat to Abortion Rights. Slate, June 29, 2020. https://slate.com/news-and-politics/2020/06/john-roberts-abortion-june-medical.html.

[27] ”Abortion” Gallup. https://news.gallup.com/poll/1576/abortion.aspx.

[28] NPR/PBS NewsHour/Marist Poll National Tables May 31st through June 4th, 2019. http://maristpoll.marist.edu/wp-content/uploads/2019/06/NPR_PBS-NewsHour_Marist-Poll_USA-NOS-and-Tables-on-Abortion_1906051428_FINAL.pdf#page=3.

[29] ”AUL/YouGov: Americans Overwhelmingly Support Emergency Transfer Laws.” Americans United for Life, November 19, 2019. https://aul.org/2019/11/19/national-survey-more-than-two-thirds-of-americans-support-limitations-on-abortion/.

[30] Bruce, Tricia C. ”How Americans Understand Abortion.” University of Notre Dame McGrath Institute for Church Life, 2020.

https://news.nd.edu/assets/395804/how_americans_understand_abortion_final_7_15_20.pdf

[31] Israel, Melanie. ”Lowest Abortion Rate Since Roe v. Wade.” Heritage Foundation, March 1, 2017. https://www.heritage.org/life/commentary/lowest-abortion-rate-roe-v-wade.

[32] New, Michael J. “The Best Metrics of Pro-Life Progress.” National Review, January 18, 2019. https://www.nationalreview.com/2019/01/pro-life-cause-measurable-progress-stay-the-course/.