//  6/29/20  //  Quick Reactions

Reproductive rights eked out a narrow victory today at the Supreme Court as the Chief Justice joined the four more liberal Justices to invalidate Louisiana’s restrictive abortion law. The Chief Justice’s reasoning, however, makes clear that the victory is not only narrow, but likely pyrrhic as well. The Chief Justice explained that he felt compelled to invalidate Louisiana’s law because the Court had invalidated the exact same law a mere four years ago. But the Chief Justice went on to explain that he would not adhere to the reasoning in the Court’s previous abortion-protective decisions—thus clearing the way for states to enact, and the Court to uphold, a litany of restrictive laws that the Court has not previously invalidated.

June Medical Services v. Russo involved Louisiana’s admitting privileges law, which requires abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions.  Four years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated that same requirement when Texas enacted it.

But the change in the Court’s personnel put the decision in jeopardy. The decision striking down Texas’s admitting privileges requirement was 5-3, with Justice Kennedy in the majority with the four more liberal Justices.  And President Trump had appointed Justice Kavanaugh to replace Justice Kennedy after promising to appoint Justices who would overturn Roe v. Wade, the decision holding that women have a constitutional right to an abortion.

Respect for precedent is what ultimately led the Chief Justice, who had voted to uphold Texas’s admitting privileges law, to invalidate Louisiana’s. In a separate opinion, the Chief Justice explained that he had to “treat like cases alike.” Because the Court had voted to invalidate Texas’s admitting privileges requirement, therefore, he had to do the same with Louisiana’s.

Reproductive rights supporters probably breathed a sigh of relief after reading the Chief Justice’s paeon to respect for precedent. The Chief Justice’s emphasis on the importance of adhering to the Court’s prior decisions does not sound like the thinking of a person who is inclined to overrule Roe v. Wade.

But the Chief Justice followed precedent in ways that were less protective of abortion rights as well. In particular, as in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

That is what happened in Planned Parenthood v. Casey, the 1992 decision that was the last time the Supreme Court was asked to overrule Roe v. Wade.  In that case, a bare majority of the Court opted not to overturn Roe.  But some of the Justices who declined to overrule Roe also adopted a legal test that was far less protective of abortion rights than Roe had been.  Roe applied the most demanding legal standard, strict scrutiny, to determine whether an abortion restriction was valid.  Casey announced that it would apply a standard that was more lenient and forgiving to the states, thus allowing them to enact more abortion restrictions. (Applying that standard, Casey upheld three of the four abortion restrictions that were challenged.) Thus, the Court in Casey gave abortion rights a significant victory that also left the abortion rights considerably more vulnerable going forward.

That is precisely what the Chief Justice did in June Medical.The Chief said that he would respect the result of the Court’s prior decisions striking down abortion restrictions. Thus, states cannot enact restrictions that the Court has previously invalidated. But the Chief Justice also made clear that he would narrowly read the reasoning in those prior decisions in ways that gave states license to enact abortion restrictions that the Court has not previously invalidated.

The Chief Justice announced that he would weaken the legal standard governing abortion restrictions in at least two significant respects. One is that he will not examine whether a law offers any health or safety benefit to women seeking abortions.  The Chief Justice explained that in his view, the proper legal standard governing abortion restrictions requires only that courts examine the burdens that legal restrictions impose, and not whether the restrictions offer any benefits.

That is not what the Court said four years ago when it invalidated Texas’s admitting privileges requirement. In that decision, The Court explained that, for an abortion restriction to be constitutional, the state had to demonstrate, with evidence, that the restriction actually benefited the health and safety of women seeking abortions.  It was not enough, the Court said, that a restriction was designed to further health and safety—that is, it was not sufficient that legislators think the restriction furthers health and safety.

This aspect of the legal framework governing abortion restrictions prevents states from enacting medically unnecessary restrictions on abortion.  Without this analysis, states could adopt myriad restrictions that offer no health benefits whatsoever, and instead just reduce access to abortion.

In his opinion in June Medical, the Chief Justice also rejected other elements of the Court’s prior decisions that limited states’ ability to enact restrictions on abortion.  The Chief wrote that “[n]othing … suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”  That is not what the Court said when it invalidated the Texas admitting privileges requirement four years ago.  In that case, the Court wrote that courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer” and specifically “weigh[] the asserted benefits against the burdens.” Here too, if courts allow states to enact laws that offer no medical benefits compared to their burdens, that gives states license to chip away at abortion through restrictive laws.

At bottom, the Chief Justice’s opinion in June Medical reflected his view that he had to invalidate a law that the Supreme Court had already said was unconstitutional. But his vote also signaled a willingness to lessen the legal protections for abortion. He may not sign an opinion that says “Roe v. Wade is overruled.” But his vote today signaled that he will join an opinion that allows states to chip away at abortion over time and in very significant ways. (For more on that, see this.)




Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

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June Medical Symposium: The Court Must Recognize Women's Equality

3/2/20  //  Commentary

With the argument in June Medical days away, Gretchen Borchelt of the National Women's Law Center argues that the Court must "reaffirm that women’s equality is fundamentally connected to the right to abortion."

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