As Roberts Casts the Deciding Vote, a Fractured Supreme Court Strikes Down Restrictive Abortion Law
With Chief Justice John Roberts being the decisive vote at the Supreme Court today, a restrictive abortion law from Louisiana was struck down. The case — June Medical Services v. Russo — is a bit complicated and, in atypical fashion, there was not a majority speaking for the Court.
In what’s highly unusual, a plurality 4–1–4 Court struck down the Louisiana law, Act 620. Justice Stephen Breyer wrote the plurality opinion in which the other three liberal justices joined. Chief Justice Roberts — voting to strike down an abortion restriction for the first time ever — wrote a concurring opinion agreeing with Breyer’s judgment, but disagreeing with the legal rationale. The other four conservative justices wrote their own dissenting opinions.
It is notable, if for no other reason than optics, that none of the three female justices wrote an opinion in this abortion rights case but the six male justices did, including the five conservative men who always oppose abortion rights.
In Whole Woman’s Health v. Hellerstedt (2016), a 5–3 ruling also written by Justice Breyer, a Texas law which required admitting privileges by doctors within thirty miles was struck down. The Court held that the law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” The ruling also required courts to weigh the burdens a law imposes on abortion access together with the benefits those laws offer.
Justice Breyer, in striking down Act 620, said it “is almost word-for-word identical to Texas’ admitting-privileges law.” While admitting privileges laws don’t overtly attack Roe v. Wade, pro-choice groups essentially argue they would regulate abortion out of existence and that states would be left with one clinic at worst, and a couple clinics at best. There are six states with just one abortion clinic remaining.
“A Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly 20 hours driving back and forth to Doe 5’s clinic twice, or else find overnight lodging in New Orleans,” Breyer wrote. Arriving at the conclusion the law would pose an undue burden for women he said, “The burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”
Because the facts from Louisiana’s Act 620 are nearly identical, Whole Woman’s Health is the controlling case here, meaning the precedent set and its outcome was relied on in resolving the Louisiana law.
Because Louisiana’s law posed an undue burden and it provided no health benefits — as the state purported, and just like Texas’s law — Breyer held Act 620 was unconstitutional. Justice Breyer’s plurality opinion essentially translates to the octogenarian saying, “I said what I said in 2016. Nothing has changed here.”
Breyer notes the District Court held that the law would provide no substantial health benefit to women — that was one of Louisiana’s arguments. Hospitalizations are extremely rare, he said, citing evidence from multiple Does that some have not done hospital work in ten years and one said only two patients receiving an abortion needed hospitalization in the last five years.
Unless a practice requires frequent in-hospital care, they would lose those privileges for failing to use them. Meaning “even if they could initially obtain admitting privileges, they would be unable to keep them,” Breyer wrote.
Chief Justice Roberts’s commitment to stare decisis — Latin for “to stand by things decided” — compelled him to abide by such a recent precedent and agree with the plurality’s judgment.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
John Roberts, of course, is still a fervent opponent of abortion rights. In his concurring opinion he wrote, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” In fact, Roberts’ opinion actually may provide a roadmap for pro-life litigants to win cases down the line.
Roberts essentially overruled the vital “balancing test” from Whole Woman’s Health, or the analysis of weighing the benefits, or lack thereof, against its burdens. He said there is no plausible way the Court could “objectively assign weight to such imponderable values and no meaningful way to compare them if there were.”
Roberts’ controlling opinion likely also gives lower courts permission to uphold restrictive abortion measures, as long as they’re different from the Texas and Louisiana laws. There would now be five votes on the Court to agree.
To have legal standing to sue in federal court an individual must prove they suffered a concrete injury, there must be a connection between the injury and the conduct brought before the court, and a court would need to be able to redress the injury. One interesting angle to this case was the question of third-party standing as it related to abortion cases. If abortion providers lacked standing to sue it would significantly hinder the ability for restrictive laws to be overturned.
Say you are injured by the operation of a statute that violates someone else’s rights. Can you assert that third person’s rights in court? Justices Thomas, Alito, and Gorsuch take the extreme view that abortion clinics lack legal standing to sue on behalf of patients and Justice Kavanaugh signaled he might think so too. But a majority, including the Chief Justice, agreed that abortion providers in this case have standing to assert the constitutional rights of their patients.
Still, in the immediate future, this ruling is a huge win for women in Louisiana. If the law was upheld, Louisiana very likely would have been left with just one abortion clinic in a state in which its major metro areas are hours away. This New York Times analysis from last year shows over eleven million women of reproductive age in America face a drive of over an hour to their nearest abortion provider. That distance, combined with restrictive regulations in some states, most severely affects and prevents low income women and women of color from accessing abortion.