SCOTUSblog by Cynthia Yee-Wallace 6/29/2020
Symposium: Chief Justice Roberts reins in the cavalry of abortion providers charging toward the elimination of abortion regulation
Abortion providers won the most recent skirmish invalidating Louisiana’s admitting privileges law in June Medical Services v. Russo. But a close read of Chief Justice John Roberts’ concurring opinion will likely operate to sharply check the ongoing efforts of opponents of abortion regulation. Roberts, although adhering to the precedent in Whole Woman’s Health v. Hellerstedt, did so through an exceptionally narrow window, effectively carving out the precedential value of Whole Women’s Health and reorienting the Planned Parenthood v. Casey equation to negate future judicial balancing tests.
While June Medical was making its way to the U.S. Supreme Court, a decisive battle was being waged across the country between abortion providers and the states. Following the Supreme Court’s 2016 decision in Whole Woman’s Health, abortion providers systematically filed lawsuits in several states in a unified effort to eliminate both old and new abortion regulations using a uniform interpretation of Whole Woman’s Health that relied on the deployment of a balancing test, the net result of which was that state abortion regulations were facing a decidedly uphill analysis. Had the Supreme Court adopted this interpretation of Whole Woman’s Health in its June Medical decision, it would have had the effect of invalidating states’ ability to enforce abortion regulations going forward. Regulations subject to invalidation included laws that states had historically relied upon as constitutionally permissible regulations based on the court’s prior precedents. Roberts’ concurring opinion cast aside abortion providers’ uniform interpretation of Whole Woman’s Health and saved a catalog of abortion precedent, preserving the states’ ability to regulate abortion.
Following the decision in Whole Woman’s Health, abortion providers filed suit in Louisiana, Montana, Mississippi, Texas, Virginia, Indiana, Idaho, Wisconsin, Arizona, Minnesota, Maine and Alaska, seeking to invalidate laws that have been in effect for years and were drafted in reliance on Supreme Court precedent, including laws that restrict the performance of abortions to physicians only. To do this, abortion providers advanced a one-sided and uniform interpretation of Whole Woman’s Health that sought to bring abortion jurisprudence back to the immediate post-Roe v. Wade era when essentially no abortion regulations could be upheld if they regulated abortion with the first two trimesters of pregnancy. This reversion assumed that the Casey framework had been completely remodeled by Whole Woman’s Health. The Casey decision brought abortion jurisprudence in balance, rejecting the trimester framework under which to evaluate abortion regulations and allowing previability abortion regulation so long as such regulation did not amount to an substantial obstacle to a woman’s right to choose a previability abortion.
More:
https://www.scotusblog.com/2020/06/symposium-chief-justice-roberts-reins-in-the-cavalry-of-abortion-providers-charging-toward-the-elimination-of-abortion-regulation/
