June Medical Services and Chief Justice Roberts’ long game
Back in June, the Supreme Court issued its anticipated ruling on June Medical Services v. Russo. The case centered around the admitting privileges of doctors that provide abortions. Hospital admitting privileges are the rights granted to a doctor allowing them to admit patients into a hospital. The Court, under the factual findings of the District Court and the relevant precedent, found that the admitting privilege requirement serves no purpose at all in terms of benefits for women. It held that a Louisiana law requiring abortion doctors to have admitting privileges was unconstitutional.
This case is almost identical to Whole Woman’s Health v. Hellerstedt,which was decided 5 years ago and sets forth the framework for the analysis. Whole Woman’s Health found that requiring abortion doctors to have admitting privileges constitutes an undue burden on women’s right to access abortion. Because June Medical provides no distinct factual findings or reconsideration of the rule adopted in Whole Woman’s Health, the Court should have refused to take the case in the first place
The Whole Woman’s Health precedent was affirmed by 4 justices — a plurality- with Chief Justice Roberts joining with a concurrence explaining why he agreed with the judgment. On its face, everything seems great. Abortion rights live another day and the rule of law prevails by reaffirming a recent precedent. An institutionalist Chief Justice Roberts, again, provides the deciding vote. However, it is too soon to feel safe — “something is rotten” in stare decisis.
Roberts’ concurrence in June Medical cannot be overlooked for several reasons. First, while reaffirming Casey’s holding, it took a weird turn by criticizing the basis of Whole Women’s Health and the approach by Justice Breyer against (wait for it) Planned Parenthood v. Casey. Second, and more importantly, Roberts’ concurrence controls to the extent it supports the plurality’s enforcement of the rule in Whole Woman’s Health as precedent.
As to the first reason, by virtue of stare decisis, Whole Woman’s Health survived to live another day. Chief Justice Roberts agreed with the plurality that “[the] case is a challenge from several abortion clinics and providers to a Louisiana law nearly identical to the Texas law struck down four years ago in Whole Woman’s Health.” Because of the legal and factual similarity between Texas and Louisiana law on the matter, Chief Justice Roberts agreed, along with the plurality of the Court, that the law in question couldn’t stand. In other words, the plurality applied the precedent to the facts of a case identical to the one struck down 5 years ago, and Chief Justice Roberts did the same in Part I of his concurrence. The opinion says “concurring in judgment” but in fact, Chief Justice Roberts did more than that: he sided with the plurality applying a controlling precedent becoming, de facto, a majority.
Now, the problem is that Chief Justice Roberts took this chance to lash out against the rationale of Whole Woman’s Health in Part II of his concurrence. True, Chief Justice Roberts reaffirmed Casey’s holding, but the issue is that Whole Woman’s Health contradicts his conception of what undue burden means under Casey.
What about when it refers to laws aiming at (allegedly) protecting women? Chief Justice Roberts considered that a balancing test is not consistent with the Court’s precedents, but this view is somewhat problematic. How could we think about undue burdens with respect to legislation aiming to protect the fetus, but not when the restrictions allegedly protect women? If there are no benefits to the legislation, then, what is the purpose of the legislation but to interfere with a woman’s right to abortion? If that is so, then, there is an undue burden. While Casey aims to assess an undue burden when it comes to measures that restrict abortion, Whole Woman’s Health uses Casey to assess if a measure seeking “to protect women” unduly restricts the right to abortion.
Finally, as to the second reason, it is also difficult to assert that Chief Justice Roberts’ concurrence controls because it concurs on the narrowest grounds, following Marks v. United States. According to Marks “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”. Does Chief Justice Roberts’ concurrence control?
Chief Justice Roberts joins the plurality on the third-party standing question, and strikes down the legislation by following the precedent in Whole Woman’s Health. Afterwards, Chief Justice Roberts engages in an argument to explain that Casey provides a better framework to assess claims concerning abortion. But, under a proper framework of legal reasoning, those reasons are superfluous: the vote needed for the judgement was already given, and the reasons supporting the fifth vote were on standing and on the reasonings of Whole Woman’s Health, making his discussion on whether Whole Woman’s Health is compatible with Casey irrelevant. Therefore, little or no consequence can be deduced from Chief Justice Roberts’ reasons on Casey, which has the similar status as dicta.
Arguing otherwise would have made the concurrence of Thomas and Scalia in Gonzalez v. Carhart, siding with the majority in applying the Court’s abortion standards as the controlling law, regardless of their criticism on the constitutional basis of abortion. You either follow precedent or not, but you cannot have it both ways.
The Court’s followers know that Chief Justice Roberts plays the long game (e.g. Shelby County v. Holder). There is no doubt that Chief Justice Roberts’ reasons for rejecting the Whole Woman’s Health’s approach was a cry for another case to (maybe) gut it. For now, his concurrence was nothing but a punt, leaving the major issue for another day. Yes, four justices upheld Whole Woman’s Health as controlling precedent, but his additional reasons might have offered a road map for future cases aiming to dismantle Whole Woman’s Health, or worse, to overrule it.
