Monday, June 29, 2020

SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?

SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?

(June 29, 2020)

By Cynthia Soohoo

The pro-choice community breathed a collective sigh of relief following the Supreme Court’s decision in June Medical v. Russo, striking down a Louisiana statute requiring that doctors who provide abortions have admitting privileges at hospitals within 30 miles of the procedure.  The good news is that the Court did not overrule Roe v. Wade, the three remaining abortion clinics in Louisiana can remain open, and the people in the state can continue to access care.

However, although June Medical retains the undue burden standard, when read together, the six separate opinions authored by the justices once again muddy the waters about how courts should apply the undue burden standard and cast doubt on the “balancing test” the Court articulated just four years ago. 

June Medical should not have been a difficult case.  The Court struck down a virtually identical Texas admitting privilege law in Whole Woman’s Health v. Hellerstedt in 2016.  The district court conducted lengthy proceedings and found that the law did not advance a state interest in protecting women’s health and would “result in drastic reduction in the number and geographic distribution of abortion providers.” Writing for a four justice plurality, Justice Breyer, who penned Whole Woman’s Health, applied the WWH’s standard in a workman like fashion and reaffirmed key aspects of the decision, including that the undue burden standard requires a court to weigh an abortion restriction’s asserted benefits against its burdens and that courts have an obligation to “independently review the legislative findings upon which an abortion-related statute rests.”

These two points resolved a disagreement among the lower courts about how to apply the undue burden standard to admitting privilege laws and other targeted regulations of abortion providers (TRAP laws).  This was important because in recent years, churning out TRAP laws has become a cottage industry for anti-choice legislators who seek to regulate abortion clinics out of business through TRAP laws that make it difficult or impossible for clinics to stay open by imposing onerous and expensive requirements without actually making abortion provision safer.

In order to strike down the Louisiana law, Justice Breyer’s plurality decision needed a 5th vote that was supplied by Justice Roberts, but at a cost. Recognizing that June Medical was basically a re-do of Whole Woman’s Health and perhaps feeling pressure to maintain the Court’s legitimacy, Justice Roberts voted to strike down the law after engaging in a lengthy discussion about why stare decisis is important.

But in reaching his decision, Justice Roberts took pains to critique WWH’s balancing test and purported to apply a substantial obstacle test that does not balance a restriction’s benefits against its burdens instead.  Specifically, his concurrence held that the admitting privilege law imposed a substantial obstacle “independent of its discussion of benefits,” but he went further characterizing the Whole Woman’s Health decision as making a similar finding, willfully ignoring that Whole Woman’s Health explicitly adopted a balancing test. Justice Roberts’ attempt to re-write the undue burden standard, led Justice Kavanaugh to declare that “five Members of the Court” – Justice Roberts and the 4 dissenting justices -  “reject the Whole Woman’s Health cost benefit standard.”  And, in a less politic and more direct manner, Justice Gorsuch’s dissent described the Chief Justice’s decision as a vote “to overrule Whole Woman’s Health insofar as it changed the Casey test.”

Given the strong factual record, the deference shown to trial court factual determinations, and the similarities between the Louisiana law and the law struck down in Whole Woman’s Health, Justice Roberts cast the 5th vote to strike down the Louisiana admitting privilege law.  His vote preserves abortion access in Louisiana and the undue burden standard, but it does so in a manner that casts substantial doubt on the balancing test the Court adopted just 4 years ago, which may it more difficult to challenge other types of abortion restrictions in the future.  

June 29, 2020 | Permalink | Comments (0)

Thursday, June 18, 2020

Films to watch as you wait for the June Medical decision

Waiting for the Supreme Court’s decision in June Medical v. Russo?  This is a great time to catch up on a number of outstanding films on reproductive rights and justice and engage in Q&A with filmmakers.  Here are some of our picks:

Reversing Roe (2018) lays out the history of abortion activism in the United States leading up to Roe and Casey.  The documentary examines the myriad challenges facing access to abortion  today and the political forces that shape our current environment -- information that’s crucial to understanding what is at stake in June Medical.  Watch the film on Netflix and on June 25 at 2:30 pm EDT, tune in to join a Facebook Live discussion with director Ricki Stern, Amanda Allen of the Lawyering Project and Farah Diaz-Tello of If/When/How.  

Court challenges are not the only way to secure abortion access. On June 19, The 8th will be premiering at the HRW film festival. The film follows Irish activists who successfully led the 2018 campaign to repeal the 8th Amendment of the Irish Constitution that recognized the equal right to life of a pregnant person and an unborn fetus. The 8th is streaming online on June 19  at 5:20 PM ET, followed by a live Q&A with Irish activist Andrea Horan and filmmakers at 7 pm EDT. 

Closer to home, Personhood, provides an in depth look at how the push to recognize fetal personhood threatens the lives and well-being of pregnant people and their families.  Personhood is not currently available on public streaming services but has been screening for smaller audiences and at film festivals.  Bei Bei, currently streaming on Vimeo, tells the story of one woman who was tragically impacted by fetal personhood laws, Bei Shuai, who was prosecuted for murder and attempted feticide following a suicide attempt while pregnant.

Finally, the Belly of the Beast follows the fight to hold the California Department of Corrections accountable for the forced sterilization of individuals incarcerated in California’s women’s prison system and provides an important history of the use of forced sterilization and Eugenics in the United States.  Belly of the Beast premiered at the HRW film fest earlier this month and is available to stream until Saturday.

Have you watched these films and want to share your views? Do you have a favorite documentary on reproductive rights and justice topics?  Feel free to share in comments!

June 18, 2020 | Permalink | Comments (0)

Friday, June 5, 2020

Webinar: After June Medical Services: The Past, Present, and Future of Regulating Reproduction

(June 5, 2020)

Temple University's Center for Public Health Law Research and the Harvard Law and Policy Review are hosting a webinar on June 30, 12-1 pm ET entitled After June Medical Services: The Past, Present, and Future of Regulating Reproduction. 


David Cohen, Drexel University School of Law

Michelle Goodwin, UC Irvine School of Law

Carol Sanger, Columbia Law School

Mary Ziegler, Florida State University College of Law

Moderator: Sarah McCammon NPR

Register at:

Contact Rachel Rebouche, with any questions



June 5, 2020 | Permalink | Comments (0)