At issue in June Medical Services v. Russo was a Louisiana law that required any doctor performing abortions to have admitting privileges at a hospital within 30 miles, a requirement that a lower court found would have resulted in only a single doctor at a single clinic being allowed to perform abortions in the state.
Roberts did not approach the case, as his liberal colleagues did, by “balancing” the obstacle that regulation placed in women’s paths against the purported health benefits of the regulation. Such balancing was the approach taken by the court in Whole Woman’s Health v. Hellerstedt in 2016, which struck down a Texas law virtually identical to the Louisiana statute — a ruling from which Roberts dissented.
In voting to strike down the Louisiana law, notwithstanding his dissent in the Texas case, Roberts emphasized the importance of precedent. And he said that the correct way to analyze abortion restrictions was the precedent established in 1992 by Planned Parenthood v. Casey, a bright-line test in which the court focused solely on whether the regulation at issue imposed an “undue burden” on a woman’s right to choose.
To the chief justice, applying a balancing test is a futile and improper exercise for courts, one that masks “an exercise of judicial will” in the guise of a “neutral utilitarian calculus.” In Roberts’s view, there 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.” Echoing the late justice Antonin Scalia, Roberts said that seeking to do so would be akin to “judging whether a particular line is longer than a particular rock is heavy.” In previous writings, I’ve explained why I agree in many contexts with that critique of legal balancing tests.
Some abortion rights advocates have expressed relief at the outcome in the Louisiana case, coupled with alarm about the consequences down the road. Writing in Slate, Dahlia Lithwick said Roberts’s concurrence “cloak[s] a major blow to the left in what appears to be a small victory for it,” replacing the balancing standard “with a much more deferential one.” New York University law professor Melissa Murray, writing in The Post, said Roberts’s standard “invites states to push the envelope on abortion legislation, secure that, regardless of the benefits to patients, courts will bless the laws so long as they do not pose a substantial obstacle.” Leah Litman of Michigan Law School said Roberts was “laying the groundwork for much weaker protections for abortion rights.”
I respectfully disagree. Those who wish Roberts had simply joined the liberal majority believe having to consider the alleged benefits — or lack thereof — of a challenged abortion restriction would offset any tendency to minimize the burdens it imposes. But the flip side of that hope is the risk that a substantial restriction — one that would otherwise be struck down because of the burden it imposes — would be upheld because of evidence about its benefits either to the woman seeking the abortion or to the state’s amorphous “interest” in protecting unborn life. In that sense, Roberts’s bright-line approach might have benefits the liberal analysis lacks.
This is not to say I am at all confident that reproductive rights are in secure hands with this Supreme Court. Roberts is no pro-choice hero — this was his first vote against an abortion restriction — much less a liberal or even moderate jurist in general. Clearly, the court’s five more-conservative justices would, if writing on a clean slate, permit states to ban virtually all abortions.
I also agree with those who say that Roberts has left himself an unfortunate amount of wiggle room to uphold novel abortion restrictions in the future. But the reality is that he would have wiggle room either way, with a balancing test or a bright-line rule.
In my view, protecting the reproductive autonomy of women is a challenge best met by a combination of gimlet-eyed realism in litigation with a recognition that the only secure path to protection lies through political victories making possible federal legislation enshrining Roe v. Wade as the supreme law of the land. Even if former vice president Joe Biden wins the presidency and Democrats retake the Senate, the odds seem long that the court would soon have five justices willing to reaffirm Roe in a way that puts real teeth into that case.
In that challenging legal landscape, ultimately the most secure way to enshrine protection for reproductive autonomy would be through congressional action. In the meantime, though, the Roberts approach might not be the looming disaster that some advocates fear.