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June Medical Services v. Russo: A Temporary Victory for Reproductive Rights

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05 Jul 2020
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July 5, 2020

June Medical Services LLC v. Russo, 591 U.S. ___ (2020) (Breyer, J.) (plurality opinion).
Response by Professor Sonia M. Suter
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

June Medical Services v. Russo: A Temporary Victory for Reproductive Rights

Reproductive rights have felt tenuous in the last few years with the election of Donald Trump and his recent appointments of Justices Gorsuch and Kavanaugh. The Supreme Court’s decision in June Medical Services v. Russo,1 therefore, was much anticipated. Many feared that the new conservative majority could overturn Roe v. Wade.2 Instead, the Court handed a victory—at least for now—to pro-choice advocates by invalidating a Louisiana statute that requires admitting privileges for abortion providers within 30 miles of where they perform abortions. 

In one sense, this outcome should not be surprising. After all, the Louisiana law is virtually identical to a Texas statute that the Court found unconstitutional four years ago in Whole Woman’s Health v. Hellerstedt.3 Nevertheless, there were reasons for concern. First, Justice Kennedy had been replaced by Justice Kavanaugh, whose jurisprudence is less sympathetic to abortion rights.4 Second, there was “an eleventh-hour” claim that the plaintiffs—abortion providers and clinics—had no standing because they were asserting the rights of third parties: women seeking abortions.5 Third, the questions from Chief Justice Roberts and Justice Kavanaugh at oral arguments suggested they might distinguish the constitutional impact of the twin laws because of differences between Texas and Louisiana.6

Instead, Chief Justice Roberts joined the four liberal Justices in holding that Louisiana’s law was unconstitutional. While that is a victory for pro-choice advocates, the question is how great a victory and at what cost? The Chief Justice’s vote may have overturned Louisiana’s law, but it came at the expense of a weakened standard of review for abortion restrictions. In protecting the women of Louisiana today, Roberts makes women more vulnerable to future abortion restrictions that may survive the more lenient standard he describes.

Roberts achieved this outcome by giving with one hand and taking with the other. He gives by relying on stare decisis to join the plurality in finding that Louisiana’s statute imposed a substantial obstacle on women seeking abortions by reducing the number of abortion providers to just one, thereby imposing delays, increased travel times, and greater health risks on women seeking abortions. But he also takes—not only by reminding us he still believes Whole Woman’s Health “was wrongly decided,” but also by overturning an important aspect of that decision: its articulation of a toothier, undue-burden test.7

Recall the history of the standard of review for abortion laws. In 1992, when affirming the “essential holding” of Roe v. Wade, the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey8 replaced the strict scrutiny standard with the more lenient undue burden standard.9 Under the latter test, abortion restrictions are unconstitutional if they have the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”10

In Whole Women’s Health, however, the Court clarified that the elusive undue-burden test involved a consideration of “the burdens a law imposes on abortion access together with the benefits those laws confer.”11 The dissenters argued that this “reimagine[d] the undue-burden standard” and transformed it into “something much more akin to strict scrutiny.”12 Although Breyer’s plurality opinion in June Medical Services reaffirms that the balancing test is part of the undue-burden analysis,13 Roberts writes separately precisely to reject this interpretation. The appropriate inquiry, he instructs, is whether a law imposes a “substantial burden, not whether benefits outweigh[] burdens.”14

Roberts doesn’t explicitly alter the standard of review; instead, he implies that stare decisis shapes his entire analysis. He creates this impression by inaccurately portraying both Whole Women’s Health and June Medical Services as articulating a standard that considers only whether abortion laws impose substantial obstacles. Justices Alito and Kavanaugh, however, recognize Roberts’ opinion for what it is, the reversal of Whole Women’s Health’s “cost-benefit standard.”15 Stare decisis, it seems, is in the eye of the beholder.

Roberts’s move is subtle but potent. Although Whole Women’s Health did not fully illuminate the mysterious undue burden test, its cost-benefit inquiry made it easier to invalidate abortion restrictions with no legitimate purpose. Under Roberts’s construction, however, such laws may still be constitutional, even if burdensome, as long as they impose no substantial obstacle. It’s hard to imagine Trump’s newly appointed federal judges finding that the burdens of many abortion laws reach that threshold.

What Roberts does in June Medical Services is reminiscent of Casey. In both instances, abortion rights hung in the balance with newly appointed conservative Justices. Yet both cases, to the surprise of many, upheld Whole Woman’s Health and Roe, respectively.16 Interestingly, both cases were decided in an election year, after the contentious confirmation of a conservative Justice who had been accused of sexual impropriety.17 Finally, both cases weakened the standard of review of their predecessor. One distinction is notable, however. Whereas the only female Justice on the Casey Court, Justice O’Connor, co-authored the plurality opinion, not a single woman issued an opinion in June Medical Services. Instead, all six male Justices authored opinions. Apparently, men had a great deal to say about a procedure that primarily affects women.

A looming question is whether proponents of reproductive rights should be heartened by Roberts’s “adherence” to stare decisis. Will Roberts uphold the fundamental principle of Roe if a case directly challenges its holding? On the one hand, if the Chief Justice was unwilling to overturn a holding from only four years ago, he is even less likely to reverse Roe, a decision on which women have relied for nearly 50 years. On the other hand, his willingness to jettison an important aspect of Whole Woman’s Health should give some pause.

The most likely outcome is that Chief Justice Roberts would avoid such a question by refusing to take cases that directly challenge Roe.18 Instead, he will continue to support a jurisprudence that allows for the gradual whittling away of abortion rights. This is part of his long game, with respect not only to abortion but also to many other contentious issues. His votes often avoid dramatic upheavals of laws like the Affordable Care Act (“ACA”)19 or Executive Orders like DACA,20 thereby insulating the Court from charges that it is inherently political. Meanwhile, he writes opinions true to his conservative leanings. Just eight years ago, for example, he voted to uphold the ACA but joined the conservative Justices in limiting Congress’s ability to regulate under the Commerce Clause.21 Some conservatives may rage at Roberts’s vote in June Medical Services, just as they did his vote to uphold the ACA. But his opinions are gifts to them that will keep on giving. Roe may not disappear overnight, but its force and power will continue to be reduced until it is as good as gone. Perhaps the Chief Justice can have it all. 

Sonia M. Suter, J.D., M.S., is a Professor of Law, the Kahan Family Research Professor, and the Founding Director of the Health Law Initiative at The George Washington University Law School.  A former genetic counselor, who earned an MS and PhD candidacy in human genetics, she has written widely on issues at the intersection of law, medicine, and ethics, with a particular focus on reproductive rights, emerging reproductive technologies as well as legal and ethical issues in genetics.  Her scholarship appears in law reviews, interdisciplinary journals, and science journals, and she co-authored the leading textbook on genetics and the law.  In addition, to her scholarship and teaching (including torts, law and medicine, genetics and the law, and assisted reproductive technologies), she has advised policy makers on various issues in her field of expertise.

  1. No. 18-1323 (U.S. June 29, 2020).
  2. 410 U.S. 113 (1973).
  3. 136 S. Ct. 2292 (2016).
  4. See Garza v. Hagan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (per curiam) (Kavanaugh, J., dissenting).
  5. Brief for the Respondent/Cross-Petitioner at 25, June Medical Servs. v. Gee, Nos. 18-1323, 18-1460 (U.S. filed Dec. 26, 2019); Response and Reply Brief for Petitioners-Cross-Respondents at 27, June Medical Servs. v. Gee, Nos. 18-1323, 18-1460 (U.S. filed Jan 21, 2020) (noting that Louisiana first asserted the third-party standing argument at the “eleventh-hour,” after the petitioners filed their petition for certiorari).
  6. Transcript of Oral Argument at 17–18, 36, 62–63, June Medical Servs. v. Russo, No.18-1323 (Mar. 4, 2020) (Roberts, C.J.); id. at 18–19, 26–27 (Kavanaugh, J.).
  7. June Medical Servs., slip op. at 2 (Roberts, C.J., concurring in the judgment).
  8. 505 U.S. 833 (1992).
  9. Id. at 873–77.
  10. Id. at 877.
  11. 136 S. Ct. 2292, 2309 (2016).
  12. Id. at 2323–24 (Thomas, J., dissenting).
  13. June Medical Servs., slip op. at 2 (noting the standard requires courts “to weigh the law’s ‘asserted benefits against the burdens’ it imposes on abortion access”) (quoting Whole Women’s Health, 136 S. Ct. at 2310).
  14. Id. at 8 (Roberts, C.J., concurring in the judgment); see also id. at 10 (noting that the “only place a balancing test appears in Casey is in Justice Stevens’s partial dissent”).
  15. Id. at 1–2 (Kavanaugh, J., dissenting) (noting that five Justices rejected that test); Id. at 4 (Alito, J., dissenting) (“I agree that Whole Woman’s Health should be overruled insofar as it changed the Casey test.”).
  16. See Melissa Murray, It’s Casey All Over Again, Wash. Post (July 1, 2020) https://www.washingtonpost.com/opinions/2020/06/29/problem-with-relying-precedent-protect-abortion-rights/.
  17. See Save Your Yarn, Strict Scrutiny (June 29, 2020), https://strict-scrutiny.simplecast.com/episodes/save-your-yarn-CBLJuNAt.
  18. See Sonia Suter, New Abortion Laws May Save Roe v. Wade, Baltimore Sun (May 31, 2019), https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0602-abortion-scotus-20190530-story.html (arguing that as an institutionalist, the Chief Justice “wants to preserve the legitimacy of the Supreme Court” and therefore is not “eager for the [C]ourt to consider the constitutionality” of recent abortion bans that “thumb their noses at precedent that has stood for nearly half a century, has been reaffirmed and is supported by a strong majority”).
  19. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).
  20. See Dept. of Homeland Sec. v. Regents of Univ. of Cal., No. 18-587 (U.S. June 18, 2020).
  21. See Avik Roy, The Inside Story on How Roberts Changed His Vote on Obamacare, Forbes (July 1, 2012), https://www.forbes.com/sites/theapothecary/2012/07/01/the-supreme-courts-john-roberts-changed-his-obamacare-vote-in-may/#2690ebded701.

Recommended Citation
Sonia M. Suter, Response, June Medical Services v. Russo: A Temporary Victory for Reproductive Rights, Geo. Wash. L. Rev. On the Docket (July 5, 2020), https://www.gwlr.org/june-medical-services-v-russo-a-temporary-victory-for-reproductive-rights/.

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