With a conservative majority on the Supreme Court, the question everybody has been asking is what the future of abortion will look like in the United States. Among those in the mainstream, a major concern is whether the Court will overturn Roe v. Wade outright, allowing states to ban abortion under all circumstances. Many legal scholars, by contrast, focus more on whether, without expressly overturning a woman’s right to abortion, the Court will allow states to regulate the procedure stringently. Practically speaking, stringent regulations could seriously burden abortion-seekers without sparking the same political outcry.
In June Medical Services v. Russo, the Chief Justice provided the fifth vote for striking down one such stringent regulation—a Louisiana law that required abortion providers to have hospital admitting privileges within 30 miles of their clinic. Concurring in the judgment, Roberts reasoned that Louisiana’s law was nearly identical to a Texas law that the Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt. He therefore voted to strike down the Louisiana statute because of stare decisis. The decision is, undoubtedly, a huge victory for anyone who is pro-choice. In addition to striking down a burdensome abortion law, the opinion offers hope that, under the same stare decisis principles, the Chief would not vote to overrule Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey.
Now for the bad news. The Chief’s opinion rejects the balancing approach that Whole Woman’s Health advanced by “taking the burdens together with the benefits.” Finding support for his analysis in Mazurek v. Armstrong as well as in Casey itself, he writes that an abortion regulation must present a substantial obstacle if a court is going to strike it down, and that considering a statute’s benefits is not called for in determining whether an obstacle is substantial. (For guidance on what constitutes a substantial obstacle, he string-cites cases that use the same language in the context of the First Amendment, RFRA and the ADA.).
But it is dangerous to assess the burdens of a statute without weighing them against the benefits. To see why, consider a statute that reads, “Women must recite their ABCs before getting an abortion.” Under the Chief’s interpretation of the substantial obstacle test, read in isolation, such a statute would be constitutionally valid. The effect would be to place an obstacle in the path of women seeking abortion, but not a large obstacle. So, whether the statute provided any benefit would be irrelevant to deciding whether the statute was unduly burdensome.
The additive property shows why this analysis is illogical. One law requiring pre-abortion ABC recitation might not create a substantial obstacle in and of itself, but what happens when a second statute requires women to do 10 pre-abortion jumping-jacks and another requires them to sing Twinkle Twinkle? Eventually, adding up statutes that create small obstacles while offering no benefits creates a large obstacle—still without benefits. Without balancing benefits and burdens of each statute, at what point—and how—would a court stop the piecemeal building of a substantial obstacle? To avoid the pitfalls of the additive property, some balancing is required to determine whether an obstacle is substantial.
The Clean Water Act provides a helpful legal analogy. That statute prohibits “any addition of any pollution to the navigable waters from any point source” without a permit. Navigable water, of course, would remain clean if one person discharged a small amount of pollution without a permit, but if everyone polluted the waters and the EPA had no way to stop any single polluter, the waters would be destroyed—as was happening before 1972 when Congress started regulating water pollution at the pollution source. All abortion regulations that afford no benefits are like pollution of a woman’s fundamental right, irrespective of whether the regulations immediately create a large obstacle.
The above analysis oversimplifies matters slightly. Chief Justice Roberts’ opinion, despite rejecting balancing, does not ignore benefits altogether. In footnote 2 he writes, “Under Casey, abortion regulations are valid so long as they do not pose a substantial obstacle and meet the threshold requirement of being ‘reasonably related’ to a ‘legitimate purpose.’” (emphasis added). He also references this threshold test on page 9 of his concurrence. According to the Chief, the analysis therefore has two parts, not one: (1) rational-basis review, as set out above in italics; and (2) substantial obstacle analysis. If courts properly follow the Chief’s test, they will consider benefits before reaching the substantial obstacle analysis because a statute without benefits should not survive rational-basis review. A law requiring women to recite their ABCs before getting an abortion should fail rational-basis review precisely because it provides no benefits, even if courts don’t weigh the benefits against burdens.
Unfortunately, using rational-basis scrutiny to consider benefits provides little comfort. First, the simple mention of rational-basis scrutiny in the abortion context should worry abortion supporters. By slipping a rational-basis inquiry into Casey’s undue-burden analysis, the Chief may be pulling a Marbury v. Madison maneuver by adjusting the scope of judicial review in his favor while issuing a holding that placates party opponents. In the future, if states’ abortion regulations would not so dramatically reduce the number of abortion providers in a state to one or two, as they would have in Louisiana, then the only protection against abortion regulations will be rational-basis review. That is a long way down from the heightened/strict scrutiny protection that once attended the fundamental right to choose.
Second, the rational-basis threshold test seems to ring hollow. Considering benefits as a threshold matter, under rational-basis review, is not ideal but it is something—at least in theory. Yet despite paying homage to the threshold inquiry, the Chief elided the rational-basis analysis in June Medical. If rational basis is truly a threshold test that, if not satisfied ends the entire inquiry, he should have explained how Louisiana’s statute is rationally related to protecting women’s health when there is no evidence that admitting-privilege requirements provide any benefit to women seeking abortions. Since Louisiana’s statute seemingly survived rational-basis review without mention, it is difficult to imagine a statute—aside from the ABC statute—that couldn’t. Perhaps even the ABC statute could survive: courts could accept a state’s explanation that reciting ABCs ensures that women are sufficiently alert to consent to the procedure.
June Medical is a win all things considered, but States now have a roadmap to restrict abortion: burden abortion one step at a time rather than in one drastic swoop, and make sure there is just enough legislative justification to survive rational-basis review. On a 0–100 scale, a statute with benefits in the 0–5 range would be unconstitutional under the threshold rational basis test. A statute with burdens > 50 (or perhaps even higher) would be unconstitutional under the substantial obstacle test. But statutes with a benefit in the 5–10, and a burden in the 40–50 range will slip through. Over time, under the Chief’s approach, such statutes will create far more burdens than benefits and achieve what the Court would not allow a single statute to accomplish.