Published July 2, 2020
Earlier this week, Chief Justice John Roberts joined the liberal wing of the Court yet again, this time to strike down an abortion regulation he voted to uphold only four years ago. More puzzling still, Roberts relies on stare decisis to do so, even as he hollows out the reasoning of the very precedent he means to “stand by.” To top it all off, the chief justice fails to recognize the clear conflict of interest in the case between the suing abortionists and the women whose putative constitutional rights they claim to assert. As a result, he misses the opportunity to reckon with the deep contradiction at the heart of the case—and at the heart of abortion jurisprudence as we know it.
Protecting the Abortion Industry, Not Women
In both Whole Women’s Health (2016) and June Medical, the Court reviewed state laws requiring abortion doctors to obtain admitting privileges at hospitals within thirty miles of the clinics in which they perform abortions. In both cases, the justices needed to decide on threshold procedural issues before they could tend to the substantive issues at hand. But in both cases, five justices, including Roberts in June Medical, voted to proceed to the substantive issues, justifying their decisions as to the threshold questions with arguments that would be untenable in any other area of law. This avoidance in abortion cases of the usual procedural constraints is what pro-lifers have long called “the abortion distortion.”
In June Medical, the state of Louisiana asked the Court to determine as a threshold matter whether abortion doctors (and clinics) had standing to sue, since of course abortion doctors do not themselves possess a constitutional right to abortion. Allowing abortionists to sue—as the Court has for too long now—puts women’s interests in the hands of purveyors of abortion, who have an economic interest in keeping abortion legal and anything but rare, as Justices Thomas, Alito, and Gorsuch all make clear in their separate dissents. As Alito put it, “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.”
In any other case involving business regulation—say, tobacco, or better yet, gun regulations—we would readily see the clear conflict of interest. If gun manufactures attempted to stand on gun owners’ Second Amendment rights (rights that are actually in the text of the Constitution) to argue against a burdensome safety regulation, virtually no one would think the court should strike down the law. Indeed, requiring the manufacturers “be limited to [their] own rights,” in Alito’s words, would mean that the law would need to pass only very deferential rational basis scrutiny—not the higher level of scrutiny with which the Court reviews abortion regulations.
Were we to treat women’s interests as distinct from abortion providers’ interests, we might well begin to see abortion for what it really is: a quick, easy, and relatively cheap way to keep women from demanding more—more of men, more of employers, more of medicine, and more of the community at large. From this perspective, it’s no surprise that Katrina Jackson, the chief sponsor of the bill June Medical struck down this week, is an African-American “whole life” Democrat who sees abortion, touted by Planned Parenthood v. Casey as a means of economic and social progress, as actually a “tool of racial and economic oppression.”
A Perverse Incentive Structure
Some have criticized women-protective health and safety regulations as targeted regulation of abortion providers (“TRAP”). Justice Ginsburg referred to them as such in her Whole Women’s Health concurrence. In truth, by striking down these laws, the Court has actually carved out a special exception just for abortion providers. After all, in passing Act 620, the Louisiana legislature merely sought to ensure abortion doctors enjoyed the same relationship with area hospitals that every other doctor who performs outpatient surgery enjoys. They wished to bring abortion regulation in line with other kinds of medical care. Indeed, the legislature acted in response to an impressive record of complaints of negligence and substandard clinic conditions. The record shows that abortion providers, on their own, were clearly not looking out for women’s best interests. It is indeed strange for those now characterizing abortion as basic “health care” not to want to be held to the same standards as, well, basic health care.
Admitting privileges at area hospitals might not be a perfect means of ensuring that doctors provide adequate medical care in the process of providing abortions, but they are a reasonable place to start. Obtaining such privileges is not just a credential a doctor receives once and for all, like a state medical licensure. It requires doctors to undergo an extensive investigative process the clinics do not require, and it provides continued oversight and monitoring of such doctors.
Of course, abortion providers do not want oversight of this kind. No business enterprise seeking to protect its bottom line does. As Alito notes, Louisiana abortion providers had particularly strong incentives not to obtain privileges. If they did obtain them, after all, not only would they be under more rigorous professional oversight, their very legal claims would fail. To rely on the “good faith” effort of those seeking to avoid at all costs the privileges the law required them to obtain as the way to measure the constitutionality of the law is beyond foolish. Failing to see this perverse incentive structure was itself a clear error on the district court’s part, and one Roberts seems intent on not seeing.
All that said, it is not surprising that abortion providers find it difficult to obtain admitting privileges at area hospitals. After all, doctors profess to preserve life, not end it. And so, while there are surely many reasons hospitals may decline abortion doctors’ applications for even courtesy privileges (those not requiring a threshold number of hospital admissions), abortion may well seem to many in the profession the very antithesis of medical care. Only one in four OB-GYNs, at the most, is willing to perform abortions, with the adverse majority citing, most commonly, personal, religious, or moral reasons for their unwillingness.
And yet their largest professional organization, alongside insurance companies and other corporate entities, now routinely campaign to protect abortion rights. Just as many companies seem to prefer quick abortions to generous work-family policies, professional medical associations would save face politically by lobbying for a procedure most doctors in their ranks themselves decline ever to perform. They thereby clear the way legally for someone, anyone, to do the necessary deed.
Restoring the Substantial Obstacle Test
Despite the myriad disappointments in June Medical, there is a silver lining: five justices, including Roberts, voted to upend the more rigorous standard of review that Justice Breyer had instituted four years ago. Writing for the majority of the Court in Whole Women’s Health, Breyer had asserted that Casey, the controlling precedent at that time, required courts to compare the benefits and burdens of abortion regulations to ascertain whether the law amounted to an “undue burden” on women’s ability to procure abortions. The new test enabled courts to strike down abortion regulations even if they did not—in Casey’s words—“have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” In both Whole Women’s Health, and then again in June Medical, Breyer thus struck down the admitting privileges laws at issue as unduly burdensome to women in part because, on his accounting, the health and safety regulation actually provided little to no benefits to them. Invoking stare decisis, Roberts joins Breyer in this assessment, thereby providing the fifth vote to strike down the Louisiana law— even as Roberts repudiates the legal reasoning on which Breyer makes this judgment.
Roberts thus concurs in the judgment in June Medical but writes separately to restore Casey’s more deferential standard of review. In Casey itself, Roberts points out, the Court did not weigh the benefits and burdens of the regulations. Instead, it merely attempted to ascertain, as a threshold matter, whether the law at issue was “reasonably related” to a legitimate state purpose. Provided that requirement was satisfied, the only remaining issue was whether the law created a “substantial obstacle” to abortion access: a fact-intensive, state-by-state determination. In fact, Casey’s standard of review, Roberts writes, grants wide discretion to state and federal legislatures in matters of health and safety. Just not, we are told, with regard to this particular regulation, at least in Texas and Louisiana.
In repudiating the newfangled balancing test, Roberts thus restores a standard that is relatively more open to abortion regulations, as compared to Whole Women’s Health—and Roe. His concurrence will in fact make it more likely that the Court will uphold such regulations in the future, because the four dissenting justices expressly endorse the “substantial obstacle test” to the exclusion of Breyer’s balancing test. (This is not because all but Thomas love Casey, it should be noted, but just because that was all they understood themselves to have authority in this case to do.)
Unfortunately, far more will be needed from Roberts to overcome Casey itself. Judging from his concurrence in June Medical—and especially his reliance on stare decisis to uphold the results of a four-year-old case—one can no longer be sure he is up to that task.
Is There Hope for the Pro-Life Cause?
Pro-lifers have waited nearly a half century for the Court to repudiate its entire ill-founded abortion jurisprudence. With each new “conservative” court appointment, new hope is kindled. With each defeat, presidential elections become more laser-focused on the potential for better judicial appointments next time, whatever the potential harms to the cause a particular president may otherwise wreak. But until the Court becomes willing to see more clearly the legal fictions its abortion decisions rest upon—just as it eventually conceded black persons were not “property” and decided that grossly unequal bargaining power between capitalist and worker was not “liberty of contract”—it will be unable to move the country beyond the political, judicial, and human wreckage that has been the Court’s own making. The state’s interest is not in protecting some esoteric “potentiality of human life,” but in protecting the lives of actual vulnerable, unique, and utterly dependent human children. More still, women’s liberty is not best described by Casey’s paean to nihilism; rather, properly understood, women’s liberty is not in conflict with their unborn children at all. That may well take better justices, but they will need to be justices who are not guided only by the mere legal proceduralism of the recent past.
An earlier version of this essay was first published at SCOTUSBlog.
Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute in Cambridge, MA. She was a Visiting Scholar at Harvard Law School in 2018. Her forthcoming book, an intellectual history of women’s rights, is forthcoming from Notre Dame University Press in 2021.