In 2016, I posted “Whole Woman’s Health v. Hellerstedt: Finally, Facts Matter,” applauding the U.S. Supreme Court for its decision to strike down a Texas law that required abortion providers to have hospital admitting privileges within 30 miles of their clinic, causing more than half the state’s abortion clinics to shut down.
On June 29, 2020, in June Medical Services v. Russo (June), the court struck down Louisiana’s near-identical attempt to erect barriers to abortion. Surprisingly, Chief Justice John Roberts joined Justices Ginsberg, Breyer, Sotomayor, and Kagan to strike down this law, but Roberts did so mostly on the basis of the Texas case precedent, not on the merits of the case argued in Justice Breyer’s majority opinion.
Roberts wrote a concurring opinion that ended with this paragraph:
“Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.”
Roberts joined the majority not because he’s newly supportive of abortion rights, but because he felt bound by the precedent set in 2016. Attorneys for many other abortion cases wending their ways through district and appellate courts are asking the question: “What does this mean for our cases?” Answer: “You need to structure your arguments to convince the Chief Justice.”
I am intrigued by recent press trying to read the tea leaves to figure out what this latest Roberts decision portends for upcoming attempts to overturn 1973’s Roe v. Wade (Roe). Without predicting whether the Supremes will or will not sooner or later overturn federal abortion rights first codified in Roe, here’s my take on John Roberts. He has set himself up as the arbiter of the arguments “Roe must be struck down, because it was too-too-too-wrongly decided” (that is, “the 1973 Supreme Court goofed”) vs. “Roe must be upheld, because it has built up precedent upon precedent upon precedent” (that is, “even if the 1973 Supreme Court goofed, there are many reasons not to overturn it after so many years”). Roberts set up those two conflicting positions in his concurring opinion text in June (bolding is mine):
“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.“
In fact he did vote to “adhere to” precedent this time. The Chief Justice said in his confirmation hearing (p.144) that he worries about overturning longstanding precedents (and Roe is a very longstanding one).
“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough — and the Court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.”
But, Roberts has voted to overturn many precedents during his time on the court since then. His statement above about “settled expectations” would include the wrenching disruption that would befall women in many states who have depended upon access to abortion care for nearly 50 years. Legal pundits confirm his statement about the importance of the “legitimacy of the court,” that a decision to overturn Roe could undermine public trust in the Supreme Court as an apolitical institution. And he has a history of trying to narrow, not over-broaden, the scope of cases before the court. One can only hope that he would decide to reaffirm Roe, because (1) precedent wins, (2) settled expectations win, and (3) overturning Roe would be too broad, indeed.
So, the question in my mind, dear John, is how “wrongly decided” does Roe have to be for you to overcome your need to “adhere” to precedent? And is it possible for you to join Justices Ginsburg, Breyer, Sotomayor, and Kagan as they continue to offer compelling alternative constitutional underpinnings to protect a woman’s right to an abortion? We’ll see.
Frankly, I’m hopeful that the Supreme Court has kicked the can down the road for revisiting Roe. Time is on our side. My concerns are more centered on defending against, even reversing, the many “Targeted Restrictions on Abortion Providers” (TRAP) laws that bar too many women from abortion care. In this sphere, the latest June ruling gives me hope. Why? Let’s look at where we are today with laws and a case in the legal pipeline right here in Arizona.
According to the Guttmacher Institute, as of March 2020, Arizona has many legal restrictions on abortion:
- A patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion, and then wait 24 hours before the procedure is provided. Counseling must be provided in person and must take place before the waiting period begins, thereby necessitating two trips to the facility.
- Health plans offered in the state’s health exchange under the Affordable Care Act can only cover abortion in cases of life endangerment or severely compromised physical health.
- The Medicaid program does not provide coverage for medically necessary abortions, despite a court order directing it to do so.
- Abortion is covered in insurance policies for public employees only in cases of life endangerment or severely compromised health.
- The use of telemedicine to administer medication abortion is prohibited.
- The parent or guardian of a minor must consent before an abortion is provided.
- A patient must undergo an ultrasound at least 24 hours before obtaining an abortion; the provider must offer the patient the option to view the image.
- An abortion may be performed at or after viability only if the patient’s life or health is endangered.
- The state prohibits abortions performed for the purpose of race or sex selection, despite a lack of evidence that abortions are performed for these reasons.
- The state requires abortion clinics to meet unnecessary and burdensome standards related to their buildings, equipment, and staffing.
Planned Parenthood Arizona attorneys are hopeful that the June 2016 precedent-confirming decision might even bolster its April 2019 lawsuit to strike down several of the above TRAP laws because their “cumulative effect” denies access to abortion care:
… attorney Catalina Vergara … wants a federal judge here to look not just at the individual hurdles being placed in the path of women but what Planned Parenthood says is the cumulative effect.
That cumulative effect, the lawsuit says, resulted in the closure of Planned Parenthood clinics in Yuma, Goodyear, Prescott Valley and Chandler. And the Flagstaff clinic can provide abortion services only one day a week.
The Supreme Court said in 1992, 2016, and 2020 that restrictions on abortion need to be judged on whether they create an “undue burden” for those seeking abortion care. That means the courts must look at abortion statutes to determine if the benefits of a restrictive law outweigh the burdens to those seeking abortions. Said another way, sham laws can’t stand.
We’re still in a legal arms race between advocates of abortion care and opponents. Advocates are trying to build a legal foundation to protect women and opponents are trying to chip away at it.
For us on the sidelines, we must pay attention, support pro-choice Senate candidates who will shape the court in coming years, and …