An Update on a Woman’s Right to Choose

By Adam W. Marshall, Esq.

In February 2019, the United States Supreme Court put on hold a Louisiana statute, Act 620, that implemented new credentialing requirements for in-state medical professionals providing abortion services. Since that time, the Court agreed to determine whether Act 620 is constitutional, and, in March 2020, entertained oral argument.

As we noted in the prior Footage:Advocacy article Row v. Wade: Continuing Developments, Act 620 was modeled almost word-for-word after a Texas statute that had already been determined by the Supreme Court in 2016 to be unconstitutional in Whole Woman’s Health v. Hellerstedt. At that time, Chief Justice John Roberts disagreed that the law was unconstitutional and would have upheld the Texas statute. It was therefore going to be interesting to see the position he would take in this case and what that position may foretell, if anything, regarding the overall status of the right to choose.

In this case, June Medical Services v. Russo, the United States District Court made factual findings with respect to the state of abortion practices in Louisiana in general and the efforts women would have to undertake to obtain abortion services with Act 620 in effect:

• Approximately 10,000 women obtain abortions in Louisiana each year, and when the litigation in this case began, there were only six doctors in five clinics in the entire state performing abortions.
• By the time the District Court ruled, two of the clinics had closed and one of the doctors had retired.
• The requirements of Act 620 would further reduce the number of clinics to one or, at most, two, with the same number of doctors (one or two) eligible to perform abortions across the entire state.
• These conditions would significantly reduce the availability of abortion services in Louisiana.

As to the purported purposes and benefits of Act 620, the District Court made the following additional observations:

• The historically low rates of serious complications associated with abortion procedures in Louisiana suggest the likelihood that Act 620 was a solution for a problem that did not actually exist.
• There was no proof that negative complications would be avoided if providers had local hospital admitting privileges as required by Act 620.

With these factual findings, and given the Supreme Court’s position in Whole Woman’s Health, the District Court determined that Act 620 represented an undue burden on the right to access abortion services and was therefore unconstitutional.

Louisiana appealed the decision to the Court of Appeals for the Fifth Circuit, which rejected the factual findings of the District Court and, applying its own interpretation of the facts, determined that Act 620 was not an undue burden on the right to choose and reinstated it. It is this determination that the Supreme Court addressed.

On June 29, 2020, the Court issued its opinion. In the first decision on the issue of abortion since President Donald Trump’s two appointees joined the Court, the Court struck down Act 620, allowing the few remaining clinics at which abortions are performed in Louisiana to remain open.

The five Justices who invalidated Act 620 determined that the factual findings of the District Court should not have been rejected. The Court observed the long-held standard that a lower court’s factual findings must not be set aside unless they are clearly erroneous. A majority of the Court could not find the District Court’s factual findings clearly erroneous, and since these facts support the conclusion that Act 620 creates an undue burden, like the Texas law invalidated in Whole Woman’s Health, Act 620 is unconstitutional.

While the Chief Justice was among the five Justices who voted to reject Act 620 (the other four were Justices Ginsberg, Breyer, Sotomayor and Kagan), Chief Justice Roberts did not join in Justice Breyer’s opinion, written on behalf of Justice Breyer and the three other affirming Justices, and instead wrote a separate opinion to explain his position and distinguish it from that of the other four Justices.

In his solitary opinion, Chief Justice Roberts agreed that the findings of fact by the District court should not have been rejected. He also described the importance of precedents and abiding by prior rulings of the Court, regardless of whether a particular judge or court believes a preceding case was decided incorrectly. Because of this adherence to precedent, the Chief Justice was constrained to apply Whole Woman’s Health and agree that Act 620 is unconstitutional.

However, this opinion says more. While Whole Woman’s Health was the acknowledged basis for the judgment here, Chief Justice Roberts reiterated his belief that, although it must be followed, it was decided incorrectly. Further, for Chief Justice Roberts, the plurality’s inclusion of a balancing test that takes into account whether the benefits of proposed regulations outweigh their burdens is not appropriate and is not required by the current leading case on abortion rights, Planned Parenthood of Southeastern PA v. Casey. Also, while following a precedent is important, it is not an “inexorable command,” and longstanding caselaw may be overturned under appropriate circumstances based on factors described in his opinion.

Finally, and perhaps most importantly, the Chief Justice was careful to observe that “[n]either party has asked us to reassess the constitutional validity” of the current standard as dictated in Casey. In other words, this decision ONLY addresses whether Act 620 is an undue burden on abortion access in Louisiana, and it should not be interpreted as anything else.

There is no way to predict accurately what will happen with future cases involving a woman’s right to choose. However, it is clear after this case that Chief Justice Roberts remains convinced that Whole Woman’s Health was wrongly decided and that restrictions such as Act 620 do not represent undue burdens on the right to abortion services. The other three Justices wrote individual dissenting opinions, signaling each jurist’s strong opposition to this outcome and, at least in Justice Thomas’s case, the opinion that “the putative right to abortion is a creation that should be undone.” Whether precedential cases like Casey and Roe v. Wade will survive this environment remains to be seen.

In the end, although this decision is a win for the women of Louisiana that prevents their already limited access to abortion services from deteriorating any further, the fight to preserve a woman’s right to choose will continue.