Two Cheers for the Roberts Concurrence in the Judgment in June Medical

by Michael C. Dorf

Unsurprisingly and (mostly) appropriately, the big news in the SCOTUS decision in June Medical Services v. Russo is that, as the NY Times headline put the point, "Supreme Court Strikes Down Louisiana Abortion Restrictions." The fact that Chief Justice Roberts was willing to cast the fifth vote to invalidate any state abortion restrictions is a big deal. As I explain below, it hardly guarantees that he will in the end cast a fifth vote to retain abortion rights in the future, but at the very least it buys time. That is no small thing. Thus one cheer.

The Chief Justice should also be praised for not hiding behind procedural legerdemain. The dissenters say that there needs to be a full-dress trial in Louisiana while its law is in effect before a court can strike it down, notwithstanding the fact that it is identical to the Texas law struck down four years earlier by the SCOTUS in the Whole Woman's Health case. Yet that course would invite and reward defiance of SCOTUS precedent. The undue burden test of Planned Parenthood v. Casey and Whole Woman's Health is fact-sensitive, but construing it as so fact-sensitive as to require a full trial in every state would be a roadmap to overturning the abortion right in all but name.

So why do I withhold the third cheer for the Chief Justice? Two aspects of his opinion trouble me.

(1) Roberts is extremely cagey about stare decisis. His opinion appears to say that the sorts of considerations necessary for overruling a precedent don't apply to Whole Woman's Health. Taken at face value, that would suggest that he won't overrule Roe and Casey either, but there are reasons not to take the Chief's stare decisis opinion at face value.

Immediately after stating that Casey applies the governing standard, Roberts adds: "Neither party has asked us to reassess the constitutional validity of that standard." That could be taken to suggest that if a party had asked the Court to reconsider Casey, Roberts would be open to doing so. Otherwise, why include the statement?

Meanwhile, although Roberts adheres to the holding of Whole Woman's Health, much of his opinion is devoted to arguing that the case wrongly changed the standard from Casey. In Casey, Roberts says, the Court defined the undue burden test as focusing only on the burden on women seeking abortions--whether the challenged regulations were a substantial obstacle--whereas Whole Woman's Health substituted a balancing test. Nonetheless, Roberts says, because the Whole Woman's Health Court found that the Texas admitting privileges law did impose a substantial obstacle, it is precedent for the proposition that the Louisiana law does as well, and thus fails the Casey test as Roberts understood it pre-Whole Woman's Health.

Thus, the version of precedent to which the Chief Justice adheres in June Medical is rather tepid: He adheres to the result in Whole Woman's Health but critiques its reasoning. That move, if followed in later cases, suggests that Roberts would be willing to cut back substantially on abortion rights.

To be clear, I don't mean this point necessarily as a criticism of the Roberts opinion. Judges and justices routinely adhere to holdings in prior cases while disavowing their broader rationales. Whether doing so is justified depends on the particulars of the argument. Here my point is simply that the willingness to read the holding of Whole Woman's Health narrowly undercuts the idea that Roberts is now ready to adhere to Casey in all of its particulars, rather than reading it narrowly too. And Roberts hints at such a move when he observes that "[t]he only restriction Casey found unconstitutional was Pennsylvania’s spousal notification requirement." One can imagine a future Roberts opinion purporting to adhere to Casey but treating the opinion as precedent only for the proposition that husband notification provisions are invalid. I hope that's not the future, but the June Medical concurrence in the judgment leaves it as a possibility.

(2) Meanwhile, on the merits, Roberts espouses a wrongheaded view of Whole Woman's Health. He is right that the most straightforward reading of Casey is that the undue burden test focuses only on burdens, without balancing benefits against them. But that doesn't mean that the Whole Woman's Health Court was wrong to look at benefits. Viewed charitably, that was simply the logical implication of a test that asks whether a burden is undue. That language naturally suggests a balancing: undue relative to what? Naturally enough, to benefits. Moreover, Casey says that a law is invalid as an undue burden if it has the purpose or effect of placing a substantial obstacle in the path of the exercise of the abortion right. A law that has no benefits can be said to have the purpose of making abortion more difficult for its own sake, even if in effect it imposes only relatively minor burdens. So the Chief is wrong to characterize Whole Woman's Health as having necessarily changed rather than applied the Casey standard.

Moreover, the Chief Justice's reason for rejecting a balancing test is misguided. Quoting some well-known language from Casey, he writes that
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.
That's not how it would have to work. Roberts imagines that once a balancing test is employed, everything gets thrown onto the scale. But Casey already guides the analysis with respect to laws that aim at protecting the potentiality of human life. Pre-viability, such laws are allowed if they aim to inform choice so long as they don't impose a substantial obstacle. That's without any balancing. Now imagine that a state passes an abortion measure that aims to "inform" a woman's choice by requiring her to read and pass an exam on a pamphlet that has no real relevance to that choice--a history of abortion law, say. If it's a substantial obstacle, it's invalid under Casey even as Roberts reads Casey. Suppose it falls just short of being a substantial obstacle. Under Whole Woman's Health, it might still be invalid, but not because the Court balances the value of human life against a woman's self-determination; it's invalid for the much more prosaic reason that the information is not actually relevant. Similar considerations operate for purported health measures, as Whole Woman's Health and June Medical indicate.

Accordingly, the Chief Justice's substantive reason for rejecting Whole Woman's Health's elaboration of the undue burden test in balancing terms is wrong. That said, and despite my criticisms, the bottom line is the first one: Whatever tomorrow (or January 20) brings, today, as yesterday, there is a constitutional right to abortion, and we have Chief Justice Roberts to thank (or if you're pro-life, to blame) for that.