Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.
The 5-4 decision in June Medical Services, L.L.C. v. Russo is bound to satisfy no one. On one hand, the conservative Chief Justice John Roberts voted with the four liberal Justices to overturn Louisiana’s abortion restrictions. On the other hand, Roberts’s opinion, which as the narrowest concurrence is at least presumptively the controlling opinion, narrowly decides the case and represents in some respects a repudiation of the approach taken in Whole Woman’s Health v. Hellerstedt. On the whole, though, it is hard to see this as anything other than a major defeat for pro-life activists. The scope of the defeat, however, may not be fully apparent.
It is fairly clear, I think, that a strategy of narrow technical regulations that ultimately restrict abortion access is no longer tenable. Some left-liberal commentators have already observed that Roberts’s opinion notes that “neither party” asked the Court to reconsider the decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). The suggestion is that Roberts might have voted differently had Louisiana made a direct assault on Casey as opposed to trying to work with Whole Woman’s Health.
June Medical, then, forms an important part of the lesson of what is already being called “Blue June” by some Court watchers. As was the case in Bostock v. Clayton County, neutral decisional technology (in this case, stare decisis; in Bostock, textualism) can be used as easily as anything to achieve substantive results altogether at odds with conservative goals. It is not enough to say that Roberts’s invocation of stare decisis or Justice Gorsuch’s textualism is somehow technically deficient.
Indeed, the originalists, lately incensed by Adrian Vermeule’s call to set originalism aside in favor of outcome-oriented conservative jurisprudence, will have a bit of a challenge explaining how Roberts’s approach here is technically deficient. He checks all the boxes. We see a quote from Blackstone, a quote from Edmund Burke, and a citation to Alexander Hamilton’s Federalist No. 78. He rejects arbitrary judicial discretion in favor of a judicial humility that recognizes the wisdom of the past: in this case, the very recent past—2016. Quoting Justice Robert Jackson’s Stare Decisis and Decisional Law, Roberts reminds us that judges are not legislators, and adherence to precedent is the strongest proof of that fact. Other than the outcome, what would any conservative have to complain about?
There may be, then, a sense that it is time to present the Court with a case that squarely raises the issue of Casey (and by extension Roe v. Wade). However, Roberts’s remarks on stare decisis generally ought to give one pause about such a strategy. Roberts makes it clear that his concept of stare decisis—at least today—requires something more than a consideration whether the precedent in question was rightly decided. Indeed, Roberts emphasizes his contention that Whole Woman’s Health was wrongly decided.
Roberts’s characterization of stare decisis as a pragmatic doctrine cuts both ways. Certainly one could make a very pragmatic case that Casey has induced such overwhelming reliance—it is, after all, the basis of a fifty-state regulatory regime—that it cannot be overturned without causing tremendous disruption to the judicial system. All of the benefits of stare decisis, particularly the predictability and consistency of the development of doctrine, would be lost if the Court overturned Casey. It was badly decided—a critic might say it was incoherently decided—to be sure, but it was decided.
To put it another way: there is a real question whether Roberts’s invitation to challenge Casey itself would not lead to a situation where Blackstone and Burke, Hamilton and Jackson are invoked to explain why Casey cannot be overturned. Certainly the factors explained by Roberts are no less present in the case of Casey, which is now nearly thirty years old and has formed the bedrock of the nation’s abortion regime, than they were in June Medical, which challenged a case decided only in 2016.
Pat Smith