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July 6, 2020 (LifeSiteNews) – Cheer up pro-lifers: there appears to be a victory within the settling dust of the sputtering and rickety finish of the current Supreme Court term.
Pro-lifers have rightly condemned the Supreme Court’s decision in June Medical Services v. Russo for striking down Louisiana’s common-sense requirement of hospital admitting privileges for abortionists. But there is reason for hope. In fact, as many pro-abortion voices have already recognized, the decision in June Medical appears in many ways to be a stealth pro-life victory.
That is because Chief Justice Roberts refused to join the four liberal Justices’ plurality opinion despite reaching the same result. Instead, Roberts authored his own concurrence and explicitly repudiated much of the plurality’s reasoning—and that of the Supreme Court in the similar case of Whole Woman’s Health v. Hellerstedt out of Texas four years ago. That reasoning said a pro-life law was an “undue burden” and thus “unconstitutional” simply when its “benefits” did not “outweigh” its burdens. In other words, even if a pro-life law did not impose any significant burdens on the so-called right to abortion, a judge could still deem it an “undue burden” if he or she thought the law lacked any benefits. As the late Justice Scalia would say, that is pure hocus pocus.
Not surprisingly, the Hellerstedt “cost-benefit” standard wreaked havoc on pro-life legislation in the lower courts. In effect, it was a blank check for pro-abortion judges to strike down all manner of pro-life laws—even laws once deemed clearly constitutional under the Supreme Court’s earlier controlling decision in Planned Parenthood v. Casey. This included requirements like parental consent for minors, ultrasounds, and physician-only abortions. These laws save lives without banning abortion, and yet the Hellerstedt cost-benefit analysis threatened to wipe them off the books.
But Roberts’s concurring opinion in June Medical is a game-changer. Roberts declared that the “cost-benefit” undue burden analysis has no place in constitutional law. Judges, he said, are competent only to discern whether a pro-life law actually inhibits a woman from obtaining an abortion. They are not equipped to closely scrutinize the law’s policy merits (that’s the legislature’s job) or whether those policy merits “outweigh” any of its burdens (that is a golden ticket for imposing pro-abortion judicial bias).
Indeed, Roberts’s concurrence in June Medical means the “cost-benefit” analysis in abortion cases is officially dead. This is clear for at least two reasons:
First, under Supreme Court precedent, when one of its decisions lacks a majority opinion, lower courts are required to follow the concurring opinion that used the “narrowest grounds” to reach the final result. And here, Roberts’s concurring opinion struck down the Louisiana law on the narrowest grounds. Specifically, Roberts concluded that the Louisiana law was unconstitutional only because the district court found that it substantially burdened access to abortion in the same manner as the Texas law which the Supreme Court struck down in Hellerstedt. Roberts thus relied on the principle of “stare decisis” (a type of super deference to past precedent for the sake of maintaining stability in the law) to also invalidate the Louisiana law. But unlike the plurality opinion, Roberts refused to conclude that the law did not advance sufficient benefits. Thus, his analysis is narrower than the plurality’s and will be controlling on lower courts.
Second, as Justice Kavanaugh pointed out in his dissent, Roberts’s express rejection of the cost-benefit analysis aligns with the positions of the four dissenting Justices, all of whom also reject the cost-benefit analysis. That means five Justices of the Supreme Court—a controlling majority—now rebuke it. As a result, lower courts will no longer be free to deploy the cost-benefit analysis against pro-life laws.
The likely pro-life benefits of this change have been immediate. On July 2, in Box v. Planned Parenthood of IN and KY, the Supreme Court vacated two Seventh Circuit rulings that had relied on the cost-benefit analysis to strike down reasonable pro-life regulations in Indiana (a pre-abortion ultrasound requirement and a parental notice requirement for minors). (1) The move confirms that at least five Justices of the Supreme Court believe the Hellerstedt standard no longer exists, and that Indiana’s life-saving pro-life regulations deserve another day in court. On reconsideration at the Seventh Circuit, the only question will be whether these laws actually impose a substantial obstacle on women in obtaining an abortion.
A number of pro-abortion voices agree June Medical was at least a partial pro-life victory. For instance, the New York Times’ Editorial Board despaired that Roberts’s opinion left the door open for courts to uphold numerous pro-life laws in the coming years—laws that likely would have languished under the previous cost-benefit analysis. (2) And Gretchen Borchelt of the National Women’s Law Center titled her reaction to the June Medical decision as “When a ‘win’ is not a win.” (3)
The makings of this victory were apparent four years ago. During the Hellerstedt oral arguments in March 2016, Roberts repeatedly called out the attorneys for both the abortion industry and President Barack Obama for trying to the change the “undue burden” standard to a wholly illegitimate cost-benefit analysis. “[H]ow is that logical?” Roberts asked at the time. “What difference does it make what the purpose behind the law is in assessing whether the burden is substantial or undue? . . . I think whether it’s an obstacle or a burden would exist without regard to the strength of the state interest.” (4)
Roberts was on the losing end of that issue in Hellerstedt. Four years later, his concurring opinion in June Medical directly tracks his questions at oral argument in Hellerstedt, thus confirming his intent to eviscerate the pro-abortion blank check that was the cost-benefit analysis. Indeed, Roberts’s concurring opinion breathes new life into reasonable pro-life regulations that do not actually burden abortion but rather encourage women (often successfully) to choose life.
How all this actually plays out remains to be seen. Roberts, it should be noted, also opined that appellate courts should give great deference to the fact-finding of district courts, which could allow a hostile district court judge too much power to control the outcome of these cases on appeal.
But Roberts also validated point-by point in June Medical the specific types of laws upheld under Casey, including pre-abortion waiting periods, parental-consent requirements, recordkeeping and reporting requirements, and physician-only abortion statutes. Under Hellerstedt, all of these laws and more had been subject to attack. June Medical sets up a barricade against that assault.
Pro-lifers should thus take heart. The final result in June Medical appears to be at least a partial pro-life victory. To that extent, it opens the door for a new wave of pro-life legislation that can and will save lives.
1. Calvin Freiburger, “Supreme Court orders Indiana abortion laws be reconsidered in light of its new pro-abort ruling,” LifeSite News, July 2, 2020, https://www.lifesitenews.com/news/supreme-court-tosses-rulings-on-indiana-abortion-laws-wont-review-buffer-zones.
2. New York Times Ed. Bd., “John Roberts is No Pro-Choice Hero,” June 29, 2020, https://www.nytimes.com/2020/06/29/opinion/supreme-court-abortion.html.
3. Gretchen Borcheld, SCOTUSblog Symposium, “June Medical Services v. Russo: When a ‘win’ is not a win,” June 30, 2020, https://www.scotusblog.com/2020/06/symposium-june-medical-services-v-russo-when-a-win-is-not-a-win/.
4. Hellerstedt, Or. Arg. Tr., p. 19 https://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/15-274_d18e.pdf. Id. at 34.
Michael McHale, Counsel, Thomas More Society : As Thomas More Society Counsel, Omaha-based Michael McHale was the debut guest on Nebraska Lieutenant Governor Mike Foley’s podcast, “The Nebraska Way.” He previously served as general counsel for the Nebraska Catholic Conference and clerked for the Honorable L. Steven Grasz at the 8th Circuit United States Court of Appeals.