Last Monday, the Supreme Court in June Medical Services, L.L.C. v. Russo struck down a Louisiana abortion law as unconstitutional. Abortion always makes for a blockbuster topic at the high court, but this decision was about as narrow as it could have been. The case hinged entirely on the vote of Chief Justice Roberts, whose opinion rested on an extraordinary application of stare decisis. What does this mean for Louisiana and, more importantly, future abortion cases at the Court? Read more to find out:
In 2013, Texas passed an admitting-privileges abortion law. The law stated that any Texas physician “performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced” (Tex. Health & Safety Code Ann. §171.0031(a)).
Two years later, Louisiana followed suit with “Act 620.” Act 620 is nearly cut-and-pasted from the Texas law:
“On the date the abortion is performed or induced, a physician performing or inducing an abortion shall . . . [h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services” (La. Rev. Stat. Ann. §40:1061.10(A)(2)(a)).
“Active admitting privileges” means that the physician is “a member in good standing of the medical staff of a hospital that is currently licensed by the department, with the ability to admit a patient and to provide diagnostic and surgical services to such patient” (ibid.).
In 2016, the Supreme Court in Whole Woman’s Health v. Hellerstedt struck down the Texas law. Justice Breyer, writing for a 5:3 majority, held that the law imposed an “undue burden” on a woman seeking an abortion, the standard evinced in Planned Parenthood v. Casey (1992). Therefore, the law violated the constitutional right to abortion identified in Roe v. Wade (1973). The late Justice Anthony Kennedy joined the Court’s more-liberal Justices in the majority. Chief Justice Roberts joined the dissenting opinion.
Fast forward to this year. Here in June Medical Services v. Russo, the Court agreed to opine on the constitutionality of Louisiana’s Act 620. The Justices were tasked with answering a few questions: Since physicians and abortion providers brought suit against Act 620 on behalf of their patients, do they even have standing to challenge the law? If so, does Whole Woman’s Health control the outcome of this case?
On Monday, the Court issued its decision by a 5:4 margin. Based on this information alone, you might think the decision was a loss for the abortion providers. Perhaps with Kennedy no longer on the Court, the new cadre of more-conservative Justices outvoted the weakened Breyer-led bloc in Whole Woman’s Health.
You’d be wrong.
The four more-liberal Justices, led by Breyer, concluded that Act 620 is unconstitutional under Whole Woman’s Health. The four more-conservative Justices (Thomas, Alito, Gorsuch, and Kavanaugh) disagreed. Providing the crucial fifth vote was Chief Justice Roberts. Even though he dissented in Whole Woman’s Health—and even though he still thinks it was erroneous—the doctrine of stare decisis led him to join the Breyer bloc and strike down Act 620.
Justice Breyer’s Opinion
Breyer’s plurality opinion—joined by Ginsburg, Sotomayor, and Kagan—concludes that the abortion providers have standing to sue on behalf of their patients, and that Whole Woman’s Health controls the outcome of this case.
After recapping the procedural history, Breyer turns to standing. Alabama argues that the patients must bring suit, not their doctors. Ordinarily, a party cannot “rest his claim to relief on the legal rights or interests of third parties” (Warth v. Seldin (1975)). Here, argues Alabama, the parties who (may) be injured by Act 620 and are seeking relief are the women seeking abortions, since the Act would close a number of abortion centers in the state and make it more onerous for women to undergo the procedure. So, the argument goes, the case should be dismissed for lack of standing and Act 620 upheld.
The problem with this argument is that it, quite simply, reverses Alabama’s earlier stance. Alabama explicitly waived this argument during litigation in the lower courts. Breyer cites the district court proceedings. After the abortion providers sued, Alabama wanted the district court to issue its decision “swiftly,” Breyer explains. In doing so, Alabama stated “there was ‘no question that the physicians had standing to contest’ Act 620.” The State also adduced the Fifth Circuit Court of Appeals’ decision regarding the Texas admitting-privileges law, in which the appeals court noted that abortion providers “had third-party standing to assert their patients’ rights.” Alabama may have thought that a quick concession of standing was a smart litigation tactic at the time, but it handcuffed itself for later litigation. The State’s “unmistakable” concession of standing in the district court “bars our consideration” of the State’s anti-standing argument here, Breyer concludes.
On the Merits
With standing settled, Breyer turns to the merits of the case. He begins by setting out the proper standard of review. To Breyer, abortion cases require the balancing of competing interests. On the one hand, women have an interest in privacy and their bodily autonomy. On the other hand, states have an interest in protecting the health of the mother and the potentiality of human life. Roe v. Wade set out a trimester framework to regulate these competing interests. For example, in the first trimester of a woman’s pregnancy, her interests would outweigh the State’s and therefore the State would be greatly limited in its ability to regulate abortion. But in the third trimester, the State’s interest would outweigh the woman’s and it therefore would have greater latitude to regulate the procedure (or even ban it entirely).
The trimester framework was scrapped in Planned Parenthood v. Casey. In its place, the Court created the “undue burden” standard. Under Casey, States may regulate abortion according to a valid state interest. However, if the “purpose or effect” of such regulations is to “plac[e] a substantial obstacle in the path of a woman’s choice,” then the regulation imposes an “undue burden” on the woman and violates her right to privacy under Roe. The Casey Court added that “[u]necessary health regulations” may qualify.
In Whole Woman’s Health, the Court used the Casey standard and weighed the purported benefits of the Texas admitting-privileges law against the burdens it placed on abortion access. Ultimately, the Court found that the law’s burdens surpassed its benefits and thus found it unconstitutional.
In this case, the district court used the same procedure. It weighed the supposed benefits of Louisiana’s Act 620 against the burdens it would place on women seeking abortions. Based on the facts in the record, it concluded that the burdens tipped the scales and that Act 620 should be struck down.
Breyer sets about explaining this conclusion in more detail. He starts with Act 620’s burdens. First, the district court found that Act 620 would discharge half the abortion providers in the state and force another to move locations, leaving just two or three abortion doctors stationed in either Shreveport (in the northwest corner of the state) or New Orleans (in the southeast corner). About 10,000 women seek abortions in Louisiana every year. When this case began, the State had six abortion doctors in five different clinics. But despite five of those doctors’ repeated, good-faith attempts to obtain admitting privileges at area hospitals, their attempts met with “very limited success for reasons related to Act 620 and not . . . to their competence,” the court found. This was because hospital bylaws “preclude or, at least greatly discourage, the granting of privileges to abortion providers.”
Breyer reinforces the gravity of these findings. The district court supervised four of the doctors “for over a year and a half as they tried, and largely failed, to obtain conforming privileges from 13 relevant hospitals,” he notes. And it heard “direct evidence that some of the doctors’ applications were denied for reasons that had nothing to do with their ability to perform abortions safely.”
Second, the district court found that Act 620 would sorely hamper the ability of Louisiana women to obtain abortions. Recall the district court’s projection that Act 620 would shutter three of the five abortion clinics in the state, leaving one in Shreveport and the other in New Orleans. To make things worse, the court heard testimony from Doe 3—the single abortion doctor that would be left to staff the Shreveport clinic—stating that Doe 3 would have to shut down the Shreveport clinic due to the drastic increase in workload, the demands of Doe 3’s private OB/GYN practice, and fears for Doe 3’s safety. So, were Act 620 allowed to go into effect, Breyer stresses that only one abortion clinic (located in New Orleans) with one, maybe two doctors would be tasked with attending to all 10,000 abortion requests per year. The district court heard testimony from that doctor (Doe 5) stating that the maximum number of abortion patients Doe 5 would be able to see in a year was 3,000 (or 30% of demand). The loss of 83% of the State’s abortion doctors and the closing of all abortion clinics except one in the southeastern corner of the State “would inevitably mean ‘longer waiting times, and increased crowding,'” Breyer points out (quoting Whole Woman’s Health).
Having placed Act 620’s burdens in the weigh scales, Breyer turns to its purported benefits. The district court found essentially none. There was “no significant health-related problem that [Act 620] helped to cure,” it asserted. It further added that the admitting-privileges requirement “does not protect women’s health,” provides “no significant health benefits,” and does not improve women’s health “compared to the prior law.”
“Our examination of the record convinces us that these findings are not ‘clearly erroneous,'” Breyer says. First, recall the district court’s finding: The admitting-privileges requirement serves no real health purpose because hospitals can deny abortion doctors such privileges regardless of their competency to perform abortions safely. Moreover, its 30-mile border “further constrains providers for reasons that bear no relationship to their competence,” Breyer adds. Second, expert testimony submitted to the district court stated that “[c]omplications from surgical abortions are relatively rare,” and “[t]hey very rarely require transfer to a hospital or emergency room and are generally not serious.” Breyer points out that Alabama “introduced no evidence ‘showing that patients have better outcomes when their physicians have admitting privileges'” (quoting Whole Woman’s Health).
With several burdens on one side of the scale and virtually no benefits on the other side, Act 620 is doomed. Breyer concludes that it amounts to an “unnecessary health regulation,” that it has the purpose or effect of placing a “substantial obstacle” in the path of Louisiana women who seek abortions, and it therefore “undu[ly] burden[s]” them in violation of Casey and Roe.
Breyer finds this case nearly identical to Whole Woman’s Health. Just as he did in his majority opinion there, he uses a balancing approach to weigh the competing interests presented here. His opinion doesn’t expand the Whole Woman’s Health framework. It merely adds another data point, more dicta that abortion litigants can use to stress the importance of the balancing approach in future cases. Whole Woman’s Health remains the primary balancing-approach precedent, as Breyer’s opinion here did not garner five votes.
Now, on to perhaps the most unforeseen opinion of them all:
Chief Justice Roberts’ Concurrence
In a striking display of deference to precedent, Roberts voted with the Breyer bloc to strike down Act 620. Roberts joined Alito’s dissent in Whole Woman’s Health, which arraigned Breyer for using the balancing approach to abortion cases, and Roberts “continue[s] to believe that [Whole Woman’s Health] was wrongly decided.” To, say, Justice Thomas, such an admission is sufficient to overrule precedent. But not to Chief Justice Roberts. “[S]pecial circumstances” must also be present, he says, and since Act 620 “imposes a burden on access to abortion just as severe as that imposed by the Texas law,” it must be struck down under Whole Woman’s Health.
Stare decisis is Roberts’ polestar. Latin for “stand by things decided,” it instructs judges to “treat like cases alike” and adhere to the Court’s prior decisions. Quoting both William Blackstone and Alexander Hamilton (Federalist No. 78), Roberts explains that stare decisis helps to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion,” as well as to “avoid an arbitrary discretion in the courts.” It also distinguishes the judicial process from the political and legislative process, as Justice Robert H. Jackson argued so long ago (and as Roberts has quoted before). While Congress has the power to change the law through the political process, the Judiciary is tasked with applying the law as written and apolitically. Absent a change in the underlying law, a like case thus ought to be treated alike. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles; fosters reliance on judicial decisions; and contributes to the actual and perceived integrity of the judicial process” (Payne v. Tennessee (1991)).
The offhand incorrect decision is inescapable. This is why stare decisis is not an “inexorable command,” Roberts explains (quoting Ramos v. Louisiana (2020)). The question then is, when is the appropriate time to overrule precedent? Here Roberts differs from his colleague Justice Thomas (and perhaps others too). Thomas has earlier stated that a precedent should be overruled whenever it was decided incorrectly. Roberts clearly wants more. “[T]he doctrine must give way only to a rationale that goes beyond whether the case was decided correctly,” he says. Other factors a court should consider include a precedent’s “administrability,” its “fit with subsequent factual and legal developments,” and “reliance interests.” (These factors are quite similar to Justice Kavanaugh’s framework for overruling precedent, which he set out in a concurring opinion in Ramos).
Stare Decisis Applied
Turning to this case, stare decisis is about the only thing keeping Roberts tethered to Breyer’s holding. Roberts has several issues with Breyer’s balancing test. For starters, it’s not an objective test. The test has judges weigh, on the one hand, the State’s interests in protecting the health of the mother and the potentiality of human life against, on the other hand, the woman’s liberty interest. But “[t]here is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were,” Roberts argues. To do so would amount to nothing more than an “unanalyzed exercise of judicial will” masquerading as a “neutral” calculus (quoting Justice Brennan’s opinion in New Jersey v. T. L. O. (1985)).
What’s more, Roberts doesn’t think the balancing test is anchored in Casey at all. When Breyer first used the balancing approach in Whole Woman’s Health, he stated the Court was applying “the standard . . . described in Casey” and reversed the lower court’s judgment because it did “not match the standard that this Court laid out in Casey.” But, argues Roberts, nowhere did Casey endorse Breyer’s balancing test. In fact, the only place a Breyer-like balancing test appears is in Justice Stevens’ (solo) partial dissent. On the contrary, Casey “looked to whether there was a substantial burden” (or “substantial obstacle”) placed on women, “not whether the burdens outweighed the benefits,” Roberts points out (emphasis added). For example, one of the abortion provisions at issue in Casey imposed a 24-hour waiting period for all abortions, subject to exceptions in an emergency. While the Casey district court found that the waiting-period provision might place some obstacles in front of some women seeking abortions, it rejected the argument that these obstacles were substantial. And read in concert with the emergency exception, the provision didn’t “impose a real health risk.” So the waiting-period provision was allowed to stand, even though it didn’t necessarily “further the state interest in maternal health.” Under Breyer’s balancing test, however, we might come to a different conclusion. Were we to weigh the (minor) burdens of the waiting-period provision against the nonexistent state benefits, the law would seem destined to fall.
Casey used the “substantial obstacle” test—and nothing more—for each of the half-dozen abortion regulations at issue (ultimately upholding all but one of them). In fact, it used that same language—”substantial obstacle” standard—no less than 15 times, Roberts points out. It barely discussed the purported benefits of the abortion regulations at issue, and it never required judges to take those benefits into account. Thus, Roberts is highly skeptical of Breyer’s balancing test. Comparing the two, Breyer’s balancing test seems a higher bar to clear than Casey‘s “substantial obstacle” test. Under Casey, as long as a State’s abortion regulation does not place a “substantial obstacle” in the path of a woman seeking an abortion, it is constitutional. But that isn’t enough for Breyer’s balancing test; if its burdens—however minor—outweigh its benefits, it is unconstitutional, as we saw with the 24-hour waiting-period provision above.
This disagreement makes Roberts’ concurrence quite narrow. His concurring vote hinges entirely on his strong view of stare decisis. The Texas law in Whole Woman’s Health and Louisiana’s Act 620 are “nearly identical,” he notes. So too are their contexts. In Texas, abortion doctors had an option—get admitting privileges themselves or have what’s called a “transfer agreement,” whereby the abortion doctor could “transfer” the patient to another doctor with admitting privileges—which the law took away. The same was true in Louisiana. Finally, the effects the Louisiana law would have on women and abortion providers would have been the same, if not more severe, than the effects of the Texas law. And the district court’s factual findings weren’t “clearly erroneous” (as Breyer explains). Thus, in the interest of treating like cases alike, Roberts says Louisiana’s Act 620 must be struck down under Whole Woman’s Health.
Roberts has clearly ensconced stare decisis on his shelf of legal tools. Simply disagreeing with a prior decision is not sufficient to overrule it (as we see here). Other factors, such as the prior decision’s workability, subsequent changes in the law, and the degree to which people have relied on the prior decision, must counsel in favor of overruling too. Perhaps this “thick” view of stare decisis (compared to, say, Justice Thomas’ “thin” view) played a part in Roberts’ joining of Alito’s dissent in Ramos v. Louisiana earlier this term, in which Alito voted not to overturn a prior Sixth Amendment precedent.
Of course, Roberts’ stare decisis approach is not inflexible. He has voted to overrule precedent before, such as California Franchise Tax Board v. Hyatt (2019) and Janus v. AFSCME (2018). I’m not aware of any scholarly essay analyzing Roberts’ views on stare decisis throughout his tenure, but such an article ought to be written (if it hasn’t been already).
Perhaps, too, Roberts is hesitant to see the Court overrule an abortion precedent. Abortion is a minefield in the bitter ideological war that is American politics today. Any judicial decision on abortion—one way or another—is a powder keg, irrespective of the strength of the Court’s legal reasoning. Roberts, an admirable institutionalist, likely wants to steer the Court as far away from this as possible. To be sure, the Court will not overrule Roe any time soon; this case, Whole Woman’s Health, and Casey stand in the way. But the moment the Court votes to overrule any prior abortion case, many on the left will denounce the Court as a partisan institution forever. And each time the Court votes to affirm an abortion precedent, many on the right let out another sigh of exasperation. So as the Court trundles onward, Roberts may have to choose his abortion battles carefully. Unless another Justice is willing to step up and flip across the traditional ideological lines, Roberts will have to shoulder that burden by himself, as Atlas did the heavens.
Justices Thomas, Alito, Gorsuch, and Kavanaugh each penned dissents. In short, they differ with respect to the narrowness of their disagreement with the majority’s conclusion. For example, Justice Thomas broadly writes that the Court’s abortion jurisprudence has no basis in the Constitution, and therefore the Court doesn’t even have jurisdiction to decide this case. On the opposite end, Justice Kavanaugh expresses no opinion whatsoever on Roe and Casey and would have remanded the case so that the district court could do more factfinding to assist in weighing Act 620’s burdens and benefits.
Justice Thomas’ solo dissent would have dismissed the case for lack of jurisdiction or, alternatively, a failure of the abortion doctors to demonstrate standing. First, Thomas argues the Court in Roe created the constitutional right to abortion “out of whole cloth,” based on “an amorphous, unwritten right to privacy which it grounded in the ‘legal fiction’ of substantive due process” (quoting his own concurrence in McDonald v. City of Chicago (2010)). The Court first recognized an implicit constitutional right to privacy in Griswold v. Connecticut (1965). Relying on the First, Third, Fourth, Fifth, and Ninth Amendments, Griswold held that the rights guaranteed by these five amendments had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” Thomas, thoroughly unimpressed, says this reasoning is “as mystifying as it is baseless.” Eight years after Griswold, the Court in Roe lumped abortion into this “newfound” right to privacy. Roe additionally said the privacy right stems from the “concept of personal liberty,” which is protected under the Fourteenth Amendment’s Due Process Clause (the doctrine of “substantive due process”).
“Roe is grievously wrong for many reasons,” Thomas contends. Chief among them is that the abortion right “finds no support in the text of the Fourteenth Amendment.” Thomas takes a narrow view of the Due Process Clause. In his view, the clause functions merely as a procedural guarantee, that deprivations of life, liberty, and property are permissible so long as they are done by due process of law. In other words, the clause does not grant or extend any substantive rights, such as the rights to privacy, contraception, or abortion. (There is much scholarly debate about the nature of the Due Process Clause; is it substantive or procedural?)
Even assuming there is a constitutional right to seek an abortion, Thomas would dismiss this case on a different ground: the abortion providers who filed the suit had no power to do so. Recall that the doctors filed on behalf of their patients (and future patients). The doctors did not themselves assert a constitutional right to perform abortions; instead, they asserted the rights of third-parties (their patients) to obtain abortions. In the abortion context, third-party standing does not amount to standing at all, Thomas argues. First, he contends that the Court has never answered whether abortion doctors or others acting as third-parties can assert the rights of abortion patients. Second, the abortion doctors argued in the alternative that the punishments imposed for breaking Act 620 would violate their own private rights. But the abortion doctors have not identified what right of theirs such punishments would violate, Thomas points out. Again, the Court has never recognized a constitutional right of abortion doctors to perform abortions. And with Roe establishing (or, in Thomas’ mind, “creating”) the right to receive abortions, Congress has had no need to pass a law creating a statutory right to abortion and thus the abortion doctors cannot claim a statutory private right either. For these reasons, Thomas would vote to dismiss the case.
Justice Alito, joined in full by Justice Gorsuch and in part by Justices Thomas and Kavanaugh, penned the main dissent. In short, Alito finds three issues with the decision to strike down Act 620. First, he argues that Breyer “distorts the record” and uses the same impermissible balancing test as he did in Whole Woman’s Health; second, that Roberts bungles stare decisis; and third, that both are wrong to assert that the abortion doctors, acting on behalf of the abortion patients, have standing to “attack legislation enacted to protect the” abortion patients.
To begin, Alito repeats his argument in Whole Woman’s Health that Breyer’s balancing test has no basis in Casey. But even assuming Breyer’s test is permissible, Alito argues Breyer distorts the facts presented in the record in finding that Act 620 has no health and safety benefits for women or the state. “In deciding whether to grant admitting privileges, hospitals typically undertake a rigorous investigative process to ensure that a doctor is responsible and competent and has the training and experience needed to perform the procedures for which the privileges are sought,” Alito explains. He then notes that the screening process hospitals impose on those applying for privileges “goes far beyond” the screening process imposed on new doctors by the Alabama medical boards (citing the record). Finally, Act 620 was passed in the wake of a grand jury report on Dr. Kermit Gosnell, a Pennsylvania abortion doctor who was convicted of several health and safety violations, including the murder of three babies born after botched abortions. Given this backdrop, “there is ample evidence in the record showing that requiring admitting privileges has health and safety benefits,” Alito asserts. These benefits should have been taken into account when Breyer performed his balancing test—assuming, of course, that such a test is the correct one for evaluating abortion regulations.
Next, Alito finds fault with Roberts’ application of stare decisis. Recall that Roberts (and Breyer) found very little daylight between the law at issue here and the Texas law at issue in Whole Woman’s Health. That may be true, Alito writes, but the two cases are much different. Just because Whole Woman’s Health determined, based on the record in that case, that the effects of the Texas law would drastically hinder the ability of women to obtain abortions in that state, it doesn’t follow that the effects of Act 620 would automatically be the same in a different state. So, Whole Woman’s Health doesn’t control the outcome of this case, Alito argues.
Alito then moves to his disposition of the case. He says the Court should remand it back to the district court. The district court should then gather new facts that are relevant to performing Casey‘s “substantial obstacle” test, not Breyer’s balancing test. In addition, the district court should take a more stringent approach to the issue of standing. If the abortion doctors want to challenge Act 620, Alito argues, they must demonstrate that they “attempted to obtain [admitting privileges] with the same zeal they would have exhibited if the Act were in effect and they stood to lose by failing in those efforts.” In addition, June Medical Services LLC—a company that operates one of the abortion clinics in Louisiana—should not be able to assert the rights of abortion patients since it has a “conflict of interest” with the third party (the abortion patients) whose rights it wants to assert. Instead, only the abortion patients themselves, after trying and failing to receive an abortion due to Act 620, should have standing. Thus, Alito would remand the case, allow Act 620 to go into effect temporarily, and then have the case dismissed unless an abortion patient herself or a doctor who tried and failed to obtain admitting privileges can establish standing to challenge Act 620.
Justice Gorsuch authored a solo 21-page dissent. Gorsuch sees a fundamental problem with the way in which abortion cases have played out throughout the past half-century. To be sure, his opinion nowhere questions the validity of Roe. But Roe‘s progeny has “overlooked” a number of rules that demarcate the power of the judiciary, he argues.
For example, “[w]hen confronting a constitutional challenge to a law, this Court ordinarily reviews the legislature’s factual findings under a ‘deferential’ if not ‘[u]ncritical’ standard,” Gorsuch explains (citing Gonzales v. Carhart (2007)). But the plurality didn’t do that here. It found that Act 620 would have no health and safety benefits if allowed to go into effect. In doing so, it entirely ignored the Alabama legislature’s arguments about the law’s benefits, made after the legislature heard testimony from health experts, physicians, abortion doctors, and women.
Next, the Court rarely permits third-parties whose rights are not infringed by the law at issue to establish standing by asserting the rights of others. But this case and Whole Woman’s Health flout this principle, as we saw above. And the few exceptions the Court has recognized are inapposite here. For instance, abortion doctors have not demonstrated that some “‘hindrance’ hampers the[ir] [patients’] ‘ability to protect [their] own interests” (quoting Kowalski v. Tesmer (2004)). (For reference, this exception is invoked when it comes to parents and their children, or guardians and admits to wards.)
Pulling a leaf out of Alito’s book, Gorsuch then turns to the self-evident rule that a past case decided principally on its own factual record creates very narrow precedent (if one at all). The majority cites Whole Woman’s Health as binding precedent here. But Whole Woman’s Health was decided almost entirely on its fact-specific record and the law’s effects in Texas. So it’s unwise to say that Whole Woman’s Health‘s factual record will look so similar to that of this case that what narrow precedent Whole Woman’s Health set is automatically binding here.
Finally, “[t]he existence of an administrable legal test . . . lies at the heart of what makes a case justiciable—as we have put it, federal courts may not entertain a question unless there are ‘judicially discoverable and manageable standards for resolving it'” (citing last term’s decision in Rucho v. Common Cause). To Gorsuch, Breyer’s balancing test eschews this principle. The Court has “long rejected” the use of an “all-things-considered balancing test,” he explains. Breyer’s approach is “little more than the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste.” In Crawford v. Washington (2004), the Court described this very kind of judicial decisionmaking as “inherently, and therefore permanently, unpredictable” (emphasis in original). In the abortion context, the decision “[w]hether a [burden] is deemed [undue] depends heavily on which factors the judge considers and how much weight he accords each of them,” Gorsuch argues. What this case misses is crucial to tough judicial decisionmaking: “an administrable legal rule to follow, a neutral principle, [and] something outside [the judge] to guide [his] decision.”
Gorsuch ends with an intriguing paragraph:
To arrive at today’s result, rules must be brushed aside and shortcuts taken. While [Roberts] parts ways with [Breyer] at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.
Gorsuch’s rhetoric is a bit cryptic. He opines no further on whether he thinks either Casey or Roe has sound constitutional footing (contra Thomas). He certainly views dimly the success of pro-abortion litigation in the future, based in part on the manner in which the Court has decided past abortion cases. But whether he questions the genesis of abortion jurisprudence is a different story.
Justice Kavanaugh penned a short, solo dissent. His dissent is really quite narrow. If placed on a spectrum with Thomas’ dissent at one end, Alito and Gorsuch’s dissents next, Roberts’ concurrence in the middle, and Breyer’s majority opinion at the other end, Kavanaugh would fall between Roberts and Alito/Gorsuch. He does join the first three parts of Alito’s dissent (in which Alito argues that the plurality should’ve lent some deference to the Alabama legislature’s findings and that the district court should have used Casey‘s “substantial obstacle” test in lieu of Breyer’s balancing test). But what does Kavanaugh say should be done with this case? Remand to gather more evidence on the effects of Act 620. “To properly evaluate” the constitutionality of Act 620 (presumably pursuant to Casey‘s test), “additional factfinding is necessary,” he says. In other words, Kavanaugh wants more evidence before he thinks the Court can render a decision. This was the same argument he made last year when the case first made its way to the Court. And he points out that “the factual record has not changed since then.”