//  9/23/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. In February 2019, split five to four, the Supreme Court blocked this law from going into effect. That order suggests the Court is likely to grant review. This symposium addresses both the merits of the case and its broader context.

By Mary Ziegler | Florida State University College of Law | @mary_zieglerfsu

June Medical Services v. Gee is not officially about the Court’s approach to stare decisis or the ultimate fate of Roe, but we will learn a lot about both from the way the justices resolve the case. June Medical is revealing partly because of the social-movement strategies that helped to shape the Fifth Circuit’s opinion. Since Planned Parenthood v. Casey, antiabortion lawyers have urged the lower courts to issue conflicting, fact-intensive rulings on the constitutionality of the same exact abortion regulation.

Why? In part, of course, abortion foes want to maximize the number of abortion restrictions that the courts uphold. But a fact-intensive litigation has always served a second purpose: documenting that Casey, Roe, and Whole Woman’s Health v. Hellerstedt should be considered unworkable and overruled. If the Court doesn’t summarily reverse June Medical—or worse, if the Court affirms the Fifth Circuit’s ruling—the justices will invite more social movements to manufacture this particular kind of unworkability. And unworkability, as antiabortion lawyers define it, can simply mean that a ruling is incremental, requires fact-intensive analysis, or produces political controversy.

A brief history of the antiabortion movement’s unworkability strategy shows how much is on the line in June Medical, both for the Court and for Roe. Immediately after Roe, when abortion foes still planned to amend the federal Constitution to reverse the decision, antiabortion attorneys began focusing on legislation restricting access to abortion. This incremental approach, its architects hoped, would eventually make Roe appear incoherent. In a 1983 case, City of Akron v. Akron Reproductive Health Center, antiabortion attorneys put forth a new vehicle for this incremental attack, an early version of the undue-burden test.

The Court had used undue-burden rhetoric in cases involving rights for minors (Bellotti v. Baird) and abortion funding (Maher v. Roe), but never suggested that there was a full alternative to the trimester framework developed in Roe. Attorneys working with Americans United for Life (AUL) and National Right to Life Committee (NRLC) asked the Court to overhaul its approach to abortion, upholding restrictions believed to help women and striking down only “burdensome” laws. If this gambit worked,  the Court would uphold many more antiabortion laws. But just as important, antiabortion attorneys hoped that lower courts would draw different conclusions about when laws helped women. And if the lower courts reached this kind of inconsistent result, then NRLC and AUL lawyers could argue that Roe was unworkable.

The Court didn’t take the bait until Casey, and even then the version of the undue-burden test adopted by the Court was a far cry from what abortion opponents had originally envisaged. But after Casey, unworkability took on even more importance for antiabortion reversal strategies. After all, the Court has never fully clarified what unworkability means. One definition championed by antiabortion lawyers is to equate unworkability and political divisiveness. It is not hard to prove that Americans do not universally accept Roe. The antiabortion movement itself is proof of that. And antiabortion attorneys have argued that both Roe and Casey were unworkable because they were controversial. If social movements or political movements do not accept a decision, the argument went, then its workability is up for question.

A second idea was to equate inconsistent lower court rulings with unworkability. Again, it was not especially hard to produce this kind of inconsistency. Some findings, like the safety of abortion, are based on rigorous nationwide studies, but antiabortion lawyers argue that local conditions differ. And variables like the number, geographic spread, and capacity of abortion providers vary widely. With so many variables in play, judges could react differently to the same or similar evidence. If the Court treated Casey as unworkable because of inconsistency in the lower courts, reversing Roe would be easy.

And inconsistent results became even more likely after Gonzales v. Carhart. The majority seemingly declared that in cases of scientific uncertainty, lawmakers had more latitude to regulate abortion. Gonzales inspired a great deal of antiabortion research. Although researchers have questioned their quality, antiabortion studies give cover for Roe skeptics who want to uphold more restrictions. Now, inconsistent results in the lower courts seemed to be a near certainty.

Pushing the redefinition of unworkability has remained a major part of antiabortion reversal strategy, especially after the Court’s 2016 decision in Whole Woman’s Health. Clarke Forsythe, AUL’s Senior Counsel, insisted that Whole Woman’s Health was unworkable because the Court got the facts wrong—in Forsythe’s view, “leaving substandard clinic conditions and practitioners in its wake.” Forsythe also reiterated that Roe, Casey, and Whole Woman’s Health were unworkable because they generated “confusion” in the lower courts. “After 45 years, the Court’s abortion doctrine shows no signs of ever being settled or workable,” he writes.

By agreeing to hear June Medical, the Court would be greenlighting this warping of workability. Anything short of a summary reversal would encourage antiabortion attorneys (and really any social movement angry about a major case) to pursue a similar approach .

If the Justices wish to show their commitment to the rule of law, they should think twice before starting down this road. It makes no sense to describe a decision as unworkable simply because it requires lower courts to decide cases based on the facts and evidence in front of them. Modest, minimalist decisions by definition leave questions to be resolved later. So does any fact-intensive approach or balancing test. The Court cannot very well declare all such approaches unworkable. Selectively targeting abortion cases would make the potential overruling of Roe, Casey, and Whole Woman’s Health look nakedly partisan rather than principled.

Nor is it logical to relitigate Whole Woman’s Health because opponents claim it is unsettled. Any time the Court addresses a culturally divisive issue, someone will be unhappy. If the Court ultimately overturns Roe, abortion doctrine will remain unsettled. There is no more reason to revisit the conclusions of Whole Woman’s Health on this ground than there is any other case on a hot-button topic.

There is nothing wrong with social movements seeking to change the Court’s mind. But unworkability, as part of the Court’s stare decisis analysis, is supposed to mean something. Dodging a summary reversal in June Medical encourages antiabortion attorneys (among others) to hollow out actual unworkability and replace it with something illogical and intrinsically political. Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe.  In June Medical, it is time for the justices to prove them wrong.

Versus Trump: Trump vs. The Equal Rights Amendment

1/16/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Easha, and Charlie discuss the Trump Administration's new legal opinion regarding the legal status of the Equal Rights Amendment, also known as the ERA. They consider what will happen now that Virginia has become the 38th state to ratify the ERA since 1972. Is it too late, or can Congress do anything to add this amendment to the Constitution? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

On Clerkships & Wasted Opportunities

12/23/19  //  Commentary

An HLS Clerkship Blog encapsulates some of the challenges to the profession in light of Trump’s reshaping of the federal judiciary.

Leah Litman

Michigan Law School

The Flaws in HHS’s Proposed Repeal of The ACA Nondiscrimination Rules

12/16/19  //  In-Depth Analysis

The Trump HHS has proposed to repeal important nondiscrimination regulations that apply to healthcare providers and insurance companies. But the Administration's reasoning is deeply flawed.

Harper Jean Tobin

National Center for Transgender Equality