'Roe' abortion decision could still be overturned at SCOTUS, law professor says

Denver Newsroom, Jul 7, 2020 / 16:00 pm

Even after the U.S. Supreme Court's overturned a Louisiana law regulating abortion clinics, one law professor says that longstanding abortion precedents could still be overturned, even if the makeup of the court does not change.

"Given the right case, a strong enough factual record developed by state legislatures and supported at trial, I believe that the current majority on the Supreme Court could overturn Roe and Casey, and return the question of abortion to the states to resolve through the usual political processes," University of Notre Dame law professor O. Carter Snead told CNA July 7.

On June 29 the U.S. Supreme Court overturned a Louisiana law holding abortion clinics to the same standards as other surgical centers.

Its 5-4 decision in the case June Medical Services, LLC v. Russo ruled that the state's law requiring abortion doctors to have admitting privileges at a local hospital posed substantial obstacles to a woman's access to abortion, without significant benefits to the safety of women.

The decision was written by Justice Stephen Breyer, with Chief Justice Roberts filing a concurring opinion. In his concurrence, Roberts said that Louisiana's law imposed restrictions "just as severe" as those of a Texas law struck down by the court in 2016. Thus, according to the "legal doctrine of stare decisis," he said, Louisiana's law "cannot stand" because of the court's previous ruling in 2016.

The Supreme Court heard a similar case about Texas safety regulations for clinics in the 2016 ruling Whole Woman's Health v. Hellerstedt.

Roberts, long considered a skeptic of pro-abortion rights jurisprudence, had dissented from that 2016 ruling against the Texas law. He joined the dissent of Justice Clarence Thomas which criticized "the Court's troubling tendency 'to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.'"

For Snead, the latest decision was disappointing, but also a "road map" for continued efforts.

He lamented that Roberts failed to join four other justices in "affirming the constitutionality of a modest health and safety law for women seeking abortions, namely, the requirement that abortion providers have hospital admitting privileges within thirty miles of where the abortion is performed."

"Nothing in the Constitution forbids Louisiana from enacting such a law. But Chief Justice Roberts felt bound to strike it down under the prudential doctrine of stare decisis because it was so factually similar to a Texas law invalidated four years ago in Whole Woman's Health v. Hellerstedt (in which Chief Justice Roberts dissented)."

Snead thought the four justices who dissented in the Louisiana case were right that stare decisis did not require rejecting the law.

However, even with the Supreme Court's apparent dedication to a recent precedent, Snead was hopeful that pro-abortion rights decisions like 1973's Roe v. Wade and 1992's Planned Parenthood v. Casey could be overturned.

"No one in June Medical Services asked for Roe or Casey to be overturned, and Chief Justice Roberts applied Planned Parenthood v. Casey without affirming or endorsing it," said Snead.

"He made it explicitly clear that he does not believe the Court can or should balance a woman's self-determination against a state's interest in the life of an unborn child. But this is the very calculus from whence the right to abortion came in Roe and Casey. So it's clear that Chief Justice Roberts believes that Roe and Casey are conceptually unsustainable."

"That leaves the issue of stare decisis as the final obstacle to convincing him to undo the injustice of Roe and Casey. It is clear from his concurrence that pro life litigants need to explain why principles of stare decisis do not require Casey and Roe to be sustained," he said.

In a July 4 essay for the First Things website, "The Way Forward After June Medical," Snead argued that Roberts' concurrence is "the controlling opinion for purposes of precedent" and "leaves pro-life litigants on a better jurisprudential footing than before."

"Most important, June is a road map for tailoring arguments to the new swing vote on abortion, Chief Justice Roberts," Snead said. "It is certainly tempting to give up because there is still so far to go. But in the face of setbacks in the struggle for the equal protection of the law for every member of the human family, born and unborn, we must remind ourselves that none of it matters. We must find a way to win."

Roberts' concurrence acknowledged that the 2016 law was wrongly decided. For Snead, a case can be "readily made" to address Roberts' concerns about precedent because of the unstable place of abortion in constitutional law. He wrote "it is built on outdated and dubious factual predicates."

Snead told CNA that American jurisprudence on abortion "has never offered a stable, coherent, or predictable legal framework; it has been re-theorized multiple times, thus reducing its precedential standing; and there is no evidence that women have structured their lives around access to abortion, nor evidence that their personal or social flourishing depends on it."

He said Roberts' concurrence puts forward a "new standard." If a state's abortion restrictions face legal challenge, the state needs only "to demonstrate that it is pursuing a legitimate purpose via rational means."

Then the state needs only rebut the plaintiff's claims that the law at issue imposes a "substantial obstacle" to obtaining a pre-viability abortion. It remains to be seen how this standard will be applied, but Chief Justice Roberts noted that it is a more permissive test than "strict scrutiny," as prescribed by Roe, Snead added.

"This is a very low standard that states can almost always meet," said Snead, saying this standard allows states "far more latitude to restrict and regulate abortion than before."

"Indeed, the Supreme Court just vacated and remanded for reconsideration two cases where lower courts had previously struck down a parental notice law and a law requiring an ultrasound 18 hours prior to an abortion," Snead told CNA.

"States should continue to pass laws that respect and protect the intrinsic equal dignity of all human beings, born and unborn, and extend the basic protections of the law to unborn children and their mothers," Snead said. He advised a combination of abortion restrictions and laws that strengthen "the social safety net" for pregnant mothers and families.

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States should make it easier for men and women to care for their babies or, where not possible, to make an adoption plan, he suggested.

"And in our own lives, we all have the duty to extend to all our brothers and sisters, born and unborn, love, respect, and radical hospitality," he said.