Reproductive rights advocates and activists breathed a collectively sigh of relief when the Supreme Court issued its opinion in June Medical Services, L.L.C. v. Russo, one of the most anticipated cases of the term. By a vote of 5-4, the Court struck down a Louisiana law regulating abortion providers that would have forced most providers out of business—a law that is virtually identical to a Texas law the Court had invalidated just four years earlier. In a different era, the Supreme Court would never have considered whether to depart from such a recent precedent, nor would it have agreed to review a case that presented no novel questions of law. But given the Court’s recent rightward shift, and President Trump’s determination to appoint only justices who are certain to overrule Roe v. Wade, everything is up for grabs. This was the first abortion ruling since Justices Neil Gorsuch and Brett Kavanaugh joined the Court, but the right to abortion survived this first ruling more or less intact. But the victory is narrow—and may turn out to be quite hollow. Only time will tell.
How Did We Get Here?
The Supreme Court ended the 2015 term with an important ruling in an abortion rights case. In Whole Woman’s Health v. Hellerstedt, Justice Stephen Breyer wrote the opinion for a 5-3 majority, in which the Court invalidated Texas’s so-called TRAP (targeted regulation of abortion providers) laws. These laws, like similar ones passed in many other states, were designed by legislatures to drive abortion providers and clinics out of business in order to make abortion inaccessible. The law at issue in June Medical is virtually identical to the one deemed unconstitutional in Whole Woman’s Health—yet the Fifth Circuit was prepared to allow it to take effect. One needs to understand the rough trajectory of abortion jurisprudence, as well as the current political climate, to understand how we got to this point.
The constitutional right of abortion dates to the Court’s 1973 ruling in Roe v. Wade, in which a majority of the Court found support for a right to seek an abortion in the constitutional right to privacy. Justice Blackmun declared that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb. This had the effect of invalidating many existing criminal bans on abortion, as well as some less restrictive laws. As a country, we have been a constant state of battle ever since.
The first major challenge to Roe, following a rightward shift on the Court during the Reagan and Bush I administrations, came in 1992. Pennsylvania was one of several states that had passed a collection of restrictions on abortion, at least in part to queue up a challenge to Roe v. Wade. But in 1992, the Court reaffirmed the constitutional right to terminate a pregnancy in Planned Parenthood v. Casey. A three-judge plurality spoke strongly about the importance of stare decisis—a legal concept that protects reliance by hesitating to overturn settled law—in deciding not to overrule Roe. A majority of justices agreed to a restructuring of the framework for analyzing the validity of governmental regulations on abortion. Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option) but struck down a provision requiring married women to notify their husbands before obtaining an abortion. The Casey opinion, in shorthand, adopted the “undue burden” test.
Casey put to rest (for a while) the question whether a more conservative Supreme Court would overrule Roe—the conservatives had the potential votes, but it didn’t happen. But in the twenty-eight years since, state legislatures in red states have been passing law after law in the hopes of queuing up another challenge to Roe and winning. Casey gave states hostile to abortion rights some wiggle room by weakening the basic framework and giving states more room to “express” their preference for childbirth over termination. They did so with hundreds of restrictive laws that imposed obstacles before women trying to obtain an abortion. These laws require things like waiting periods, mandatory ultrasounds, scripted medical information, and parental consent for minors; other laws deny government funding for abortion, restrict the use of telemedicine, and ban particular methods of abortion.
In the early 2010s, states went further, passing TRAP laws designed to make it impossible or impractical for abortion providers to continue serving patients. These laws are in a special category because they seem to offer no medical benefit for women seeking abortions—and make it impossible for most providers to comply because of cost or other barriers. For a legislature trying to eliminate access to abortion, despite constitutional protection, TRAP laws were a smart move.
In 2014, Texas imposed two requirements for abortion clinics that led half the clinics in the state to close: (1) abortion providers had to have admitting privileges at a hospital within 30 miles of the clinic; and abortion clinics must be built and outfitted like ambulatory surgical centers. Texas defended these requirements on the grounds that it would protect the health of women who undergo abortions. But the Supreme Court disagreed and held that these provisions imposed an unconstitutional undue burden on women seeking abortions. The Court’s opinion rested on its view that the law provided no benefits to women’s health and that the law substantially burdened women’s access to abortion because the requirements forced the closing of a significant number of the state’s abortion clinics.
There’s a genius to TRAP laws—they sound reasonable until more facts are on the table. But Justice Breyer relied extensively on the district court’s finding of facts—and the reasonable inferences that could be drawn from them—to understand the challenged laws. It was hard for Texas to prove any benefit given the abortion is already an incredibly safe medical procedure, and these regulations did not make them any safer. (Childbirth is fourteen times more fatal than an abortion.) Moreover, the admitting-privileges law was virtually impossible for providers to satisfy. Hospitals by and large do not grant admitting privileges to abortion providers either because they do not support abortion or because abortion providers do not admit a sufficient number of patients to the hospital (because abortions, as noted already, are so safe); and outfitting abortion facilities like surgical centers offers no medical benefit and retrofitting is structurally or cost-wise prohibitive for most clinics. Justice Breyer saw through Texas’s ruse and concluded that the TRAP laws “pose[] a substantial obstacle to women seeking abortions, and constitute[] an ‘undue burden’ on their constitutional right to do so.”
From Whole Woman’s Health to June Medical
Whole Woman’s Health was rightly understood as the death knell for TRAP laws, which had all been crafted very similarly. After issuing the decision in Whole Woman’s Health, the Supreme Court dismissed pending petitions for certiorari in cases involving similar TRAP laws in Wisconsin and Mississippi, which meant leaving lower-court injunctions in place. In Alabama and Tennessee, the states immediately conceded in pending litigation that their admitting-privilege laws were unconstitutional. Although Oklahoma and Mississippi made no such concession, lower courts blocked enforcement of their TRAP laws, citing Whole Woman’s Health. These actions made sense, given the majority’s conclusion that an admitting-privileges law offers no benefit and serves no valid state interest. Such a law simply cannot survive the undue burden analysis set forth in Casey.
Yet, the Court was asked just four years later to weigh in on the constitutionality of a very similar law. In 2014, after Texas’s admitting-privileges law had taken effect and forced half of the state’s clinics to shut down, the Louisiana legislature held hearings on a similar bill. In June of that year, the bill was signed into law. Act 620 requires any doctor who performs abortions to hold “active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” Failure to comply can result in a $4,000 fine per violation, as well as other civil consequences like suspension of a medical license.
A lawsuit was filed before the law took effect (as is almost always the case with abortion restrictions that appear blatantly unconstitutional). The plaintiffs (clinics and providers) sought a temporary restraining order to prevent the law from taking effect. The state asked for an immediate ruling on the merits of whether the law imposed an unconstitutional undue burden. The district court did neither of these things. It declined to delay the date for the Act to take effect but forbade the state from imposing any penalties on violators. It directed the plaintiff providers to seek privileges and keep the court in the loop on their progress. The court held a trial on the merits in June 2015. In January 2016, it issued a decision in which it held the Act unconstitutional on its face and enjoining its enforcement.
Louisiana appealed the ruling to the U.S. Court of Appeals for the Fifth Circuit, which granted its request for a stay of the lower court’s judgment. The Supreme Court stayed the stay, so to speak, permitting the trial court’s injunction to stand while it considered Whole Woman’s Health, which was pending that term. In June 2016, the Court issued its opinion in Whole Woman’s Health, which one might reasonably have assumed would have ended the litigation in June Medical as well. But unlike in all the other jurisdictions in which a similar law was being challenged, the litigation in June Medical continued. Louisiana refused to concede its law was unconstitutional. The Supreme Court sent June Medical back to the lower courts for factfinding in light of the new opinion in Whole Woman’s Health.
On remand, the district court made extensive factual findings that were similar to those made in the litigation over the Texas provisions. The key findings are these:
- Abortion in Louisiana, as elsewhere, is extremely safe and rarely results in the patient’s hospitalization;
- There was no evidence that complications from abortion were being mishandled, nor any that could be avoided by a provider’s having admitting privileges at a hospital near the clinic;
- Abortion access in Louisiana is already strained, with only six doctors and five clinics to serve 10,000 abortion patients a year;
- The admitting-privileges law was hard to satisfy due to antipathy to abortion providers and a mismatch between the hospital requirements and the providers’ practices (e.g., they do not admit enough patients to the hospital in a given year);
- The admitting-privileges law does not serve a “credentialing function” because privileges can be withheld despite competency;
- The admitting-privileges law would “result in a drastic reduction in the number and geographic distribution of abortion providers, reducing the number of clinics to one, or at most two, and leaving only one, or at most two, physicians providing abortions in the entire state.”
On this record, the district court concluded that “many women seeking a safe, legal abortion in Louisiana will be unable to obtain one,” and those who can will have to overcome significant obstacles. And these burdens have no offsetting benefit. The court thus concluded that the Act was unconstitutional and could not be enforced.
The U.S. Court of Appeals for the Fifth Circuit s, a right-leaning court that has moved significantly more rightward because of judges appointed during President Trump’s administration, reversed the district court’s judgment. This ruling was, quite frankly, lawless. Even though appellate courts can only overturn factual findings that they deem “clearly erroneous,” the Fifth Circuit decided that Act 620’s impact was “dramatically less” than that of the Texas law invalidated by the Supreme Court. The Fifth Circuit also concluded that there was evidence of a “minimal benefit” to women under the Louisiana law, unlike the Texas law, based on the “credentialing function” of the admitting-privileges requirement.
The plaintiffs petitioned for review by the Supreme Court because the Fifth Circuit’s ruling would have let the law go into effect. Early in the term, the Court agreed to stay the Fifth Circuit’s ruling, but also granted review on the merits.
The Ruling in June Medical Services v. Russo
Justice Breyer wrote the opinion, which was joined by Justices Ginsburg, Kagan, and Sotomayor. Chief Justice Roberts concurred in the judgment, writing a separate opinion. Every other man on the Court also wrote a separate opinion—Justices Thomas, Alito, Gorsuch and Kavanaugh in dissent. (Justice Breyer’s opinion is straightforward and relatively short—the dissents add another 100+ pages.)
Justice Breyer first dispensed with an argument about standing—who has the right to bring a particular claim in court. Louisiana argued in the Supreme Court for the first time that providers and clinics did not have the right to bring a claim that the constitutional right to seek an abortion was impaired by the admitting-privileges law; such a claim, it argued, should be brought by abortion-seeking women themselves. Justice Breyer deemed this argument waived, as the State had not argued this in over five years of litigation in this case. And even if not waived, Breyer explained, there are decades of precedent permitting “abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” (There is more to this standing issue, which I will leave to others to analyze.)
Moving to the merits, Justice Breyer articulated and applied the undue burden case set forth in Casey and applied in Whole Woman’s Health. As he wrote in Whole Woman’s Health, and repeated in June Medical, “a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Moreover, he explained, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer,” and cautioned against giving dispositive weight to legislative findings, which are obviously self-serving and not a substitute for independent judicial review.
Justice Breyer’s opinion noted that the Fifth Circuit did not disagree with the relevant legal standards, but rather disagreed with the district court’s factual findings. But it overstepped in rejecting well-supported findings. Justice Breyer found ample evidence in the record, as he did in Whole Woman’s Health, that Act 620 provided no benefit for women seeking abortions and would make it difficult or impossible for many to do so. The Court sifted through the very same evidence that the Fifth Circuit had before it—but maybe ignored. The record was clear on both the lack of benefit and the burden, and Justice Breyer stepped through each provider and all the relevant facts to show the problem with the admitting-privileges requirement. This process led Justice Breyer to conclude as follows:
The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations on abortion. It thought, however, that the District Court was mistaken on the facts. We disagree. We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional. . . .
We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution. Taken together, we think these findings and the evidence that underlies them are sufficient to support the District Court’s conclusion that Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana. . . .
This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional. . . .
The analysis is straightforward and eminently correct. But even though the Court had decided the same issue four years earlier, only three justices joined Justice Breyer’s opinion. Chief Justice Roberts concurred in the judgment, agreeing with the outcome based primarily on principles of stare decisis, much like the plurality from Casey almost three decades ago. As Roberts wrote in his concurrence:
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases like. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
Chief Justice Roberts dissented in Whole Woman’s Health and stated in his concurrence in June Medical that he continues to believe it was wrongly decided. But he agreed that the precedent was valid and deserved to be followed in this case. Where he parted ways with Justice Breyer, however, is on the relevance of an abortion restriction’s benefits. Justice Breyer wrote in Whole Woman’s Health that the burdens and benefits must be considered together and weighed against one another. Chief Justice Roberts rejects this idea in his concurrence, as did the four dissenting justices. What’s at stake is whether states can pass restrictions that serve no benefit to women’s health, but which impose some burden on women who seek abortions. Chief Justice Roberts suggested that the analysis should focus on whether the burden is significant enough to be deemed “undue,” while Justice Breyer would likely deem it undue based on the lack of any benefit.
Just as the plurality in Casey, which “saved” the constitutional right of abortion, opened the door to increasingly burdensome restrictions on women seeking abortions, June Medical may do so as well. But for now, the core right to seek a previability abortion without undue burden from the government remains intact. And that merits a sigh of relief.
