Monday, August 30, 2021

How Supreme Court case June Medical v. Russo may have set up pro-lifers for victory in Dobbs v. Jackson Women's Health

[Today's guest post is by attorney Leslie Corbly.]

The philosophical makeup of the Supreme Court is fluid. With the addition of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the judicial philosophy of the majority of the Court’s members has once again shifted. In light of this shift, in April 2021 the Arkansas Law Review published the article “A Costly Victory: June Medical, Federal Abortion Legislation, and Section 5 of the Fourteenth Amendment.” Essentially the authors argue that the Supreme Court case June Medical was a victory for abortion supporters, but an expensive one that may ultimately contribute to a different outcome in the near future. Here I summarize the article for your consideration. For clarity and unless otherwise specified, my parenthetical citations in this post refer to page numbers in "A Costly Victory," linked above.

It is no secret that the recent decision by the United States Supreme Court to take up the case of Dobbs v. Jackson Women’s Health Organization could significantly impact the current legal landscape of abortion rights. A ruling in Dobbs which grants states the ability to regulate abortion prior to fetal viability would be a significant departure from current legal precedent. To properly understand the possible implications of such a ruling it is necessary to understand (1) fetal viability and (2) the connection between viability and the state’s ability to regulate abortion.

A Quick Legal History

Roe v. Wade and the trimester framework.
Viability in the context of abortion legal precedent describes the ability of a fetus to survive outside the womb of a pregnant woman either naturally or through medical support (pg. 6). The landmark decision Roe v Wade set the precedent that access to abortion was a woman’s constitutional right. In the subsequent decision in Planned Parenthood v. Casey the Court held this right stemmed from the Fourteenth Amendment’s Due Process Clause (pg. 4). However, this right was never absolute, and Roe itself recognized the state’s interest in preserving fetal life, developing a trimester framework which applied a series of legal tests through the course of a woman’s pregnancy to determine when abortion was legally permissible (pg. 51). These tests determine the extent to which the state had an interest in regulating abortion either to preserve the health of the mother or the life of the unborn child (pg. 51).

During the first trimester, Roe left a woman’s right to abort in the hands of her physician’s medical judgment. Subsequent to the first trimester, a woman’s right to abort her unborn child could be subject to state regulation, but only on the basis of the state’s interest in preserving the health of the mother. However, once an unborn child passed the point of viability the court held that a state may exercise more limiting regulations, including barring a woman from aborting the fetus, except in circumstances where her life or health is endangered (pg. 51).

Planned Parenthood v. Casey and the "balancing test."
Although the trimester framework was subsequently overturned by Casey the court has consistently ruled that the point of viability is significant and, post viability, states have a greater interest in regulating the practice of abortion to preserve the life of the unborn. Casey established a balancing test, requiring courts to weigh the benefits and burdens of abortion regulation when determining whether a law violated the constitution. This ambiguous balancing test was affirmed in Whole Woman’s Health v Hellerstedt (pg. 2). 

June Medical v. Russo and "significant obstacles."
However, in the Supreme Court’s 2020 ruling in June Medical Services L.L.C. v Russo (which struck down a Louisian abortion law), the Court moved away from the ambiguous balancing test created in Casey and applied in Hellerstedt, opting to take a more deferential stance towards state abortion regulation by allowing an abortion regulation to stand, even prior to viability, if the regulation does not place a significant obstacle in the path of a woman seek a pre-viability abortion (pg. 2).

Effects of June Medical

Abortion advocates propose federal legislation to codify Roe.
Although the Court’s decision in June Medical overturned an abortion law, advocates of abortion reacted swiftly to the Court's deferential interpretation of state regulation of pre-viability abortions. They immediately calling for the codification of Roe through federal legislation, a call echoed by the Biden administration just prior to the President’s inauguration (pg. 3). For years, abortion proponents have desired federal legislation as a vehicle of further codifying the right to abortion, and top Democratic politicians such as Barbara Boxer and Barack Obama have supported such legislation (pg. 3).

The two most common pieces of legislation proposed by abortion advocates are the Freedom of Choice Act (FOCA), and the Women’s Health Protection Act (WHPA). FOCA is the more sweeping a broad of the two legislative agendas, attempting to bar government at any level of authority from denying or interfering with a woman’s right to abortion either before viability or when the woman’s health or life are impacted post viability (pg. 37). Although WHPA would also apply to all levels of governmental authority, the legislation would allow for bans on abortion before and after viability with exception for circumstances where “continuation of the pregnancy would pose a risk to the patient’s life or health” (pg. 37). In addition, WHPA would allow regulations to stand if the government can establish, by clear and convincing evidence, that the regulation “significantly advances the safety of abortion or the health of patients” and that the safety of such services and the health of patients “cannot be advanced by a less restrictive alternative measures or action” (pg. 38).

Congress has limited ability to enact such legislation.
However, the June Medical decision limits the ability of Congress, under Section 5 of the Fourteenth Amendment, to enact the type of legislation promoted by abortion advocates. This is because Congress’s authority under Section 5 is limited (pg. 35). Indeed, the Court ruled in City of Boerne v. Flores that Congress lacked the power to enforce limitations under the Religious Freedom Restoration Act on state and local governments, holding that Congress may not use Section 5 authority to effect a substantive change to the Due Process Clause because “the text of [section 5] [is] inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States” (pg. 35).

Functionally, this means Congress may pass laws to prevent violations of section 5 of the Fourteenth Amendment, but it may not pass laws altering the substance of the Amendment. Laws passed via Section 5 authority must target state and local laws and regulations that “have a significant likelihood of being unconstitutional” (pg. 36). Because the June Medical decision significantly reduced the probability that any given abortion regulation “contravenes a woman’s due process rights” it thereby curtailed the authority Congress has to enact federal legislation designed to undercut the ability of state and local governments to regulate abortion. (pg. 36)

Potential Effects of Dobbs

The possible implications of a Dobbs ruling are significant. Should the Court grant states the ability to limit pre-viability abortions, this would be a monumental decision. To date, the Court has allowed Casey’s prohibition on pre-viability abortion bans to hold (pg 65); in light of such precedent, lower courts have enjoined the enforcement of all pre-viability bans, except one ban of abortions at twenty weeks or earlier (pg. 65). Further, although some sates have bans on abortions ranging from twenty-two to twenty-fours weeks, the constitutionality of such laws is highly suspect, meaning their retention through statutes is likely for the purpose of governments signaling a moral disdain for abortion (pg. 65). 

If the Supreme Court were to overturn the prohibition on pre-viability bans, it would open the door to further regulation limiting abortion thereby further curtailing the ability of Congress to exercise section 5 authority over state and local governments. This would likely lead to further cases appearing before the Court because the Court would be tasked with determining the breadth and depth of the constitutional right to abortion given the abandonment of the current pre-viability/post-viability constitutional framework. Alternatively, should the Court overturn Roe, Congress would lack any authority under Section 5 because the abortion would no longer be recognized as a constitutional right and any regulation of abortion, either by limiting or expanding the right to such a procedure would be decided under the jurisdiction of individual states.

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