June Medical Is the New Casey

The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo.  At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.

To understand what this means, let me provide a brief background on abortion and the Supreme Court.  As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. Wade. Roe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.

What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate.  According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine.  An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden.  Outlawing a safer procedure? No undue burden.  Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.

Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion.  But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder. (These laws even have a nickname--TRAP laws: Targeted Regulation of Abortion Providers.)

Take the law at issue in Whole Women’s Health, which required that abortion providers have admitting privileges at hospitals within thirty miles of their clinic. By forcing over half the abortion clinics to shut their doors, this law (which also required clinics to meet the standard for ambulatory surgical centers) created a serious obstacle for women seeking abortions. At the same time, Texas offered zero evidence that mandating admitting privileges at nearby hospitals had made any woman safer. To start, abortion was such a safe procedure, hospitals were almost never required.  On the rare occasion the need did arise, it was usually when women were already back home, which meant they would go to the hospital near them, not a hospital near the clinic. Moreover, doctors who performed abortions were already required to have a patient “transfer” arrangement with a physician with admitting privileges if they did not have admitting privileges themselves.

Louisiana passed the same requirement, and it was Louisiana’s admitting privileges law that was at issue in June Medical—and struck down in June Medical. In doing so, June Medical reaffirmed that women’s right to abortion was protected by the U.S. Constitution, just as in Casey. There is no doubt a great relief to women and reproductive rights advocate everywhere.

However, also similar to Casey, June Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not.  Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “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.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like Casey, June Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.

The Chief Justice’s invocation of stare decisis leads to both good news and bad news. Applying it to Louisiana’s admitting privileges law required the Court to strike it down. Applying it to Whole Woman’s Health, however, led Chief Justice to reject its heightened protection for abortion rights. “Under principles of stare decision, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial burden requires the same determinations about Louisiana’s law. Under those same principles, I would adhere to the holding in Casey, requiring a substantial obstacle before striking down an abortion regulation.”

Equality and Liberty, Reproductive Rights, Women's rights