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1.5 Cheers For June Medical

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I have a piece up at NBC News about today’s decision striking down Louisiana’s abortion law.

It’s tricky to convey the import of an outcome that is certainly better than any plausible alternative going forward and yet still pretty ominous. To expand on this a little, this is the key passages from the Roberts concurrence:

Under Casey, the State may not impose an undue burden on the woman’s ability to obtain an abortion. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id., at 877. Laws that do not pose a substantial obstacle to abortion access are permissible, so long as they are “reasonably related” to a legitimate state interest. Id., at 878.

 After faithfully reciting this standard, the Court in Whole Woman’s Health added the following observation: “The rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” 579 U. S., at ___–___ (slip op., at 19–20). The plurality repeats today that the undue burden standard requires courts “to weigh the law’s asserted benefits against the burdens it imposes on abortion access.” Ante, at 2 (internal quotation marks omitted).

 Read in isolation from Casey, such an inquiry could invite a grand “balancing test in which unweighted factors mysteriously are weighed.” Marrs v. Motorola, Inc.577 F. 3d 783, 788 (CA7 2009). Under such tests, “equality of treatment is . . . impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.” Scalia, The Rule of Law as a Law of Rules, 56  U. Chi. L. Rev. 1175, 1182 (1989).

[…]

To be sure, the Court at times discussed the benefits of the regulations, including when it distinguished spousal notification from parental consent. See Whole Woman’s Health, 579 U. S., at ___–___ (slip op., at 19–20) (citing Casey, 505 U. S., at 887–898 (opinion of the Court); id., at 899–901 (joint opinion). But in the context of Casey’s governing standard, these benefits were not placed on a scale opposite the law’s burdens. Rather, Casey discussed benefits in considering the threshold requirement that the State have a “legitimate purpose” and that the law be “reasonably related to that goal.” Id., at 878 (plurality opinion); id., at 882 (joint opinion).

 So long as that showing is made, the only question for a court is whether a law has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id., at 877 (plurality opinion). Casey  repeats that “substantial obstacle” standard nearly verbatim no less than 15 times. Id., at 846, 894, 895 (opinion of the Court); id., at 877, 878 (plurality opinion); id., at 883, 884, 885, 886, 887, 901 (joint opinion).

The bottom line here is that at a minimum Roberts wants to go back to the toothless pre-2016 Casey, when the Court more or less took any congressional statement that regulations were designed to protect a woman’s health at face value. He didn’t want to do it in this particular case because it squarely challenged a less than 5-year-old precedent, and 5CA thumbed its nose at the Court by upholding a law essentially identical to the one is had struck down in Whole Woman’s Health. He’s not saying that states can’t use various regulations to strangle abortion access mostly to death, just urging them to find a path the Court hasn’t specifically ruled out yet.

That said, this is in context an important win. Every year Roe and Casey survives buys time, and as expected Roberts seems to have little interest in a one-fell-swoop overruling. It also takes one powerful tool for limiting abortion access away from the states as long as Roberts remains the median vote, and some of the alternatives (like “fetal heartbeat” bills) would be high-upside but also high-downside, given that Roberts seems much more comfortable with less individually draconian measures to reduce abortion access. But Roberts isn’t offering a robust defense of Roe here; as with the census and DACA cases, he’s telling conservatives to pursue desired ends in ways that are less intelligence-insulting to the Court. That’s not nothing, but when a more careful constructed restriction reaches the Court after the election is over, don’t expect Roberts to be on the right side again.

Leah Litman has more on how Roberts is leaving a lot of paths for restricting abortion open.

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