SCOTUS Abortion GVR's Suggest June Medical Narrowed The Right
by Michael C. Dorf
On Thursday, the Supreme Court granted certiorari, vacated the appeals court decisions, and remanded for reconsideration (GVR'd in SCOTUS lingo) in light of June Medical Services v. Russo in two Seventh Circuit cases. Prima facie, that's odd. In June Medical and both of the GVR'd cases, the plaintiffs challenging abortion regulations won. Ordinarily, the Court GVRs when the result of a new SCOTUS case is contrary to the result of the GVR'd case. To GVR is to say: "Hey, the result you reached looks inconsistent with the result we just reached in a similar case, but we don't want to reverse; maybe there's an important distinction; you figure it out in the first instance." So here the question arises: what is there about the new SCOTUS case that might be thought to narrow abortion rights?
As I wrote here a week ago, four justices in June Medical adhered to the view they had expressed for a majority (when Justice Kennedy was still on the Court) in Whole Woman's Health v. Hellerstedt: that the "undue burden" test of Planned Parenthood v. Casey requires a court to invalidate a law that burdens the abortion right, regardless of whether the burden crosses an absolute threshold of substantiality, if the law provides scant or no benefits sufficient to outweigh the burden; however, the fifth and decisive vote in June Medical came from Chief Justice Roberts, who rejected balancing as inconsistent with the Casey test and inherently subjective. And because the two Seventh Circuit cases--what I'll call the Ultrasound Case and the Parental Notification Case--relied at least in part on the balancing portion of Whole Woman's Health, the GVR can be understood as an instruction to reconsider the result under the Chief Justice's version of the undue burden test, in which the question is simply whether the law has the purpose or effect of imposing a substantial obstacle to the exercise of the abortion right, regardless of any benefits.
Describing the foregoing development with her customary and admirable concision, Amy Howe at SCOTUSblog wrote last week that "the decision to send the case[s] back for another look rather than simply deny review suggests that the Supreme Court wants the 7th Circuit to apply the more lenient test outlined in the concurring opinion filed by Chief Justice John Roberts in June Medical, which would not include a balancing of the benefits of the law against the burden it places on pregnant women." Let's explore the question whether the Chief's test is necessarily "more lenient" than the balancing test of Whole Woman's Health.
Readers who have not been following the abortion jurisprudence developments closely might be confused by the assumption that a balancing test is stricter than the alternative. After all, in many contexts, we refer to "mushy" balancing tests, which we contrast with "bright-line" rules. Formalists from Hugo Black to Antonin Scalia (whom Roberts cites in his June Medical concurrence in the judgment) have lamented how balancing facilitates judicial discretion and allows rights to be overridden. Why, then, is balancing in this context thought to be more protective of the abortion right?
The short answer is the assumption that Justice Breyer--the author of Whole Woman's Health majority and the June Medical plurality--means the balancing test to be a one-way ratchet. A plaintiff prevails by showing either that: (a) the challenged law is a substantial obstacle; or (b) the challenged law is a not-quite-substantial obstacle but its benefits are so slight that the burden outweighs them. By contrast, the Roberts version consists of only part (a). Because it is easier for a plaintiff to win under a test that allows the plaintiff to win by showing (a) or (b) than under a test that requires the plaintiff to show (a), the Breyer version is more plaintiff-friendly than the Roberts version.
Yet it is by no means clear that the Breyer version of the undue burden test is a one-way ratchet. Both the Whole Woman's Health majority and the June Medical plurality say simply that benefits must be considered along with burdens. One could well imagine an alternative future in which CJ Roberts or some other conservative Justice applied the balancing test to conclude that some burden that would otherwise be deemed substantial under Casey was nonetheless justified because of its benefits. Because five Justices in June Medical (the Chief plus the four dissenters) rejected the balancing test, we won't see that future, but I don't think the Breyer formulation would have ruled it out.
In any event, absent a change in personnel, it appears that the balancing test is out and the on/off substantial obstacle test is in. Even so, we are left with a puzzle: Why didn't the Court simply deny cert in the two Seventh Circuit cases? In both, it is pretty clear that on remand, the appeals court will write opinions of the following form: We previously held that the benefits of the law do not justify the burdens it imposes. In June Medical, five Justices indicated that the proper test puts benefits aside and simply asks whether the law acts as a substantial obstacle. Applying that test, we find that it does and thus we reaffirm our earlier holding.
Why do I think that's very likely? Because in both cases, the earlier opinions concluded that the burdens were substantial. In the Ultrasound Case, the appeals court approved district court findings "that the burdens were significant: additional travel expenses, childcare costs, loss of entire days' wages, risk of losing jobs, and potential danger from an abusive partner." In the Parental Notification Case, the court wrote: "For a significant fraction of the small number of unemancipated minors seeking an abortion via judicial bypass, Indiana’s notice requirement will likely operate as an undue burden by giving parents a practical veto over the abortion decision."
What then, is the point of the GVRs? Let me offer two hypotheses.
(1) This is a busy time of year for the Court. It's quite possible that the Justices did not very closely scrutinize the Seventh Circuit opinions. It is clear that in both cases the court applied the now-defunct balancing test of Whole Woman's Health. The Court had been holding the cert petitions pending its resolution of June Medical. The GVRs are almost pro forma. Should the Seventh Circuit reinstate its prior rulings, the Court will then simply deny cert.
(2) More consequentially, however, it is possible that five Justices believe that they have now not only rejected the Whole Woman's Health balancing test but have also raised the threshold for finding a substantial obstacle/undue burden. CJ Roberts writes in June Medical that he "joined the dissent in Whole Woman’s Health and continue[s] to believe that the case was wrongly decided." Nonetheless, while rejecting the Whole Woman's Health balancing test, on stare decisis grounds the Chief Justice adhered to its holding with respect to an admitting privileges law. In light of his continued belief that Whole Woman's Health was not just wrong to adopt a balancing test but wrongly decided, we can expect that in future cases that do not involve admitting privileges, the Chief will be inclined to apply Casey in a way that is substantially friendlier to state regulations of abortion than the version of the test that the plurality would apply.
And that's assuming the Chief Justice does not vote to overrule Casey itself. He declined to do so in June Medical because no party had asked the Court to, but he left open the possibility.
Even assuming Casey remains the law for the medium term, we can get a sense of the likely permissiveness of the Chief's version of the undue burden test by looking at Part III of Justice Alito's dissent in Whole Woman's Health, which Roberts joined in full. It minimizes both obstacles and the causal relation between laws and their effects in the world. In addition, Justice Alito's footnote 11 calls into question the way in which the Seventh Circuit calculated the relevant group of people with respect to whom the burden is measured (the denominator) in the Parental Notification Case.
Accordingly, it is possible that the GVRs to the Seventh Circuit are intended for that court to not only abandon the balancing test of Whole Woman's Health but to apply a version of the undue burden test more like the one Justice Alito (joined by the Chief Justice and Justice Thomas) applied in Whole Woman's Health. The main reason to think that this is not what the Court intended by GVR'ing is that June Medical does not in fact adopt the Alito approach to the undue burden test. Applying the customary means of deriving a holding from a fractured Court, we piece together the plurality and the Roberts opinion in June Medical to construct a holding that stare decisis requires the invalidation of admitting privileges laws. The Roberts statement that he continues to think Whole Woman's Health was wrongly decided is not in any way necessary to the outcome and thus not part of the holding.
Hence, I conclude that my first hypothesis is more likely correct: the GVR is somewhat pro forma. I believe that the Seventh Circuit can, should, and likely will write revised versions of its prior opinions in which it concludes that the ultrasound law and the parental notification law are invalid because they violate the Roberts version of the Casey test, without any balancing. However, there is a substantial chance that after the Seventh Circuit does so, the Court as currently constituted would grant cert and then reverse based on the more permissive version of the undue burden test. And even if it does not do so in these cases, it could well do so in some other future case.
Bottom Line: The Court's abortion jurisprudence has hardly come to rest.