Tuesday, June 30, 2020
by Professor Aziza Ahmed, Northeastern University School of Law, guest contributor
The June Medical Services v Russo decision is a victory for reproductive justice (RJ) advocates. The decision strikes down a Louisiana admitting privileges law which required abortion providers to register with a hospital within thirty miles of the abortion clinic where services are being provided. In an earlier SCOTUS blog post I asked whether the court would be validating pretextual claims by Louisiana who claimed that the law was actually passed to benefit women. These laws, commonly called TRAP laws – or the targeted regulation of abortion providers – were called out by Justice Ginsburg in Whole Women’s Health v Hellerstedt. As many reproductive rights scholars have now noted, these laws have the façade of protecting women’s health but, in fact, are designed to limit women’s access to abortion.
With the June Medical decision, which follows the precedent of Whole Women’s Health, Breyer carefully balances the benefits and burdens of the Louisiana law. Relying on evidence presented by the parties as the case passed through the lower courts, the plurality found that the law confers a greater burden than benefit on women as they seek to access abortion. In turn, Louisiana’s law was found to be unconstitutional. Justice Breyer noted that poor women who are least likely to be able to absorb the costs of increased travel are those most likely to be burdened. These facts helped solidify that the legislation was unconstitutional. (Although the court does not mention race, many of the women whose right to abortion would be disenfranchised under the law would be people of color, primarily Black and Latinx.)
But how do we assess facts presented to the court? While the plurality treated this as a straightforward exercise – carefully parsing facts in order to ascertain whether or not there was a substantial obstacle in the path of a woman receiving an abortion, Chief Justice Roberts felt differently. In his concurrence, Roberts’ states that while he supports the plurality in finding the Louisiana law unconstitutional because of precedent he critiqued the use of the undue burden standard in its current form. Roberts states that after Casey, courts were to assess whether a law had the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.” After Whole Women’s Health the Court was to compare the burdens and benefits of a law. This is reiterated in June Medical. Roberts takes issue with the balancing test now required. He describes the problems of the balancing test:
In this context, 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. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy,” Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.” (citations omitted).
In essence, Roberts questions whether possible to do a benefit/burden analysis in the context of abortion without acting as legislators. The attempt to do so would simply be politics disguised as neutrality. By putting some space between his own reasoning and that of the plurality, Roberts critique of the undue burden standard seems to provide room for him to adjudicate differently that he did in June Medical. He could decide in a later case that the undue burden’s balancing test is no longer appropriate for the neutral assessment of law that needs to occur. Some will read this as the way that Roberts will correct his stance on abortion in a later case allowing the Court to find restrictions on abortion constitutional.
Although there remains a faith in the power of liberal legalism as a means to save abortion rights, any reproductive justice advocate would tell you that Roberts is not entirely incorrect. The right to an abortion is political. It was taken out of the domain of health services where women’s health advocates would like to keep it and is volleyed about as a political tool from elections to Supreme Court nominations, costing lives, health, and well-being in the process. And, though Justices, including Roberts in this instance have acted with restraint due to the idea of stare decisis, abortion advocates know that we cannot rely on the principles of law to preserve abortion access with Conservative justices in the majority.