Another question concerned the fate of abortion rights. Kennedy coauthored the joint opinion in Planned Parenthood v. Casey, which declined to overrule Roe v. Wade. Casey, however, opened the door to state regulations of abortion that did not impose an “undue burden” upon a pregnant woman’s decision. After Casey, many states pursued targeted regulation of abortion providers or “TRAP” laws. In 2016, Kennedy joined the liberal justices in Whole Women’s Health v. Hellerstedt, holding that Texas’s law requiring that physicians who perform abortions must have “admitting privileges” at a hospital within 30 miles unconstitutionally imposed an undue burden. This term, in June Medical Services v. Russo, the Court considered Louisiana’s nearly identical TRAP law. Court watchers wondered: Would there still be five votes to strike down the law? Or would the Court overrule or distinguish Hellerstedt?

The answer came on June 29, 2020, when the Court (in an opinion authored by Justice Breyer and joined by Justices Ginsburg, Kagan, and Sotomayor) struck down Louisiana’s law on the basis of Hellerstedt. Chief Justice Roberts, who dissented in Hellerstedt, provided the critical fifth vote, concurring in the judgment but not the reasoning of the opinion. Writing that he continues to believe Hellerstedt was incorrect, he nonetheless concurred on the basis of precedent: Louisiana’s law “imposes a burden on access to abortion just as severe as that imposed by the Texas law.”

In June Medical, Breyer begins by repeating Hellerstedt’s holding: “‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ and are therefore ‘constitutionally invalid.’” According to Hellerstedt, to assess whether a law regulating abortion poses an “undue burden,” a court must independently review the legislative findings upon which the law rest and weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. Breyer concluded that the district court in June Medical correctly applied that test after a six-day trial about Louisiana’s law.

Breyer recites some of the district court’s findings about the absence of benefit: “abortion in Louisiana has been extremely safe,” so there was “no significant health-related problem that the new law helped to cure.” On the burden side, the doctors challenging the law were unable to obtain admitting privileges despite “good faith efforts.” As a result of the law, there would be a “drastic reduction in the number and geographic distribution of abortion providers,” leaving only one or two in the entire state. Consequently, “many women seeking a safe, legal abortion in Louisiana will be unable to obtain one” and those who can “will face substantial obstacles.” Because Louisiana (like many states) requires pregnant women to “undergo an ultrasound and receive mandatory counseling” at least 24 hours before an abortion, some women might have to spend “nearly 20 hours” driving back and forth or find overnight lodgings. This burden would “fall disproportionately on poor women.”

Breyer concluded that the evidence supporting the district court’s conclusions was “even stronger and more detailed” than in Hellerstedt. Therefore, the Court of Appeals should have deferred to that court unless the latter’s extensive factual findings were “clearly erroneous.” Roberts similarly concluded that the district court’s findings revealed no “clear error” and should bind the Court “in this case.”

Instead of applying that deferential standard, the Court of Appeals second-guessed the district court and concluded that the impact of Louisiana’s law was “dramatically less” than that of the Texas law. It argued that the doctors did not try hard enough to obtain admitting privileges. In their dissents, Justices Alito (joined by Kavanaugh) and Gorsuch argued similarly and at length. These dissents ignored facts that Breyer stressed: for example, to gain admitting privileges, a doctor typically has to admit a certain number of patients per year, but doctors who specialize in performing abortions cannot satisfy that requirement because they typically do not admit patients to a hospital. Furthermore, “opposition to abortion played a significant role in some hospitals’ decision to deny admitting privileges.”

Justice Thomas was the only dissenter who expressly called for overruling Roe. He used terms like a woman’s “purported” or “putative” right to convey his view that there is no constitutional basis for any “right” to terminate a pregnancy or to challenge a state’s ability to “regulate or even prohibit abortion.”

Reversing Roe was not, however, before the Court. With Chief Justice Roberts concurring in the judgment, the center holds, for now, with respect to reaffirming Roe, Casey, and Hellerstedt. Perhaps Roberts provided the fifth vote to defend the legitimacy of the Court by emphasizing the importance of adhering to precedent. Or perhaps Roberts is attempting to save the Republican Party from itself in an election year: reversing Hellerstedt might have opened the door to a slew of new TRAP laws, leading to heightened liberal and progressive concerns about the composition of the Court.

Regardless of Roberts’ motivation, this case shows that the undue burden test can have real force against TRAP laws. While five justices concluded that Louisiana’s law was an unconstitutional instant replay of Texas’s law, there was not a similar majority with respect to what counts as an undue burden under Casey. Roberts criticized the benefit/burden inquiry that Breyer elaborated in Hellerstedt and June Medical because such a test, isolated from Casey, will lead courts to weigh “imponderable values” with “no meaningful way to compare them.” This is ironic. Conservative justices have argued that Casey’sundue burden test alone does not provide courts enough guidance. In Hellerstedt, Breyer offered concrete guidance for assessing whether a burden was “undue.” Roberts might well uphold different restrictions on abortion in future cases or—in a case raising the issue—support overruling Casey or Roe. This reaffirms just how urgent the 2020 presidential election is for those who support a constitutional right to abortion as part of reproductive justice.

“LAW Reviews” is an opinion series that provides commentaries from BU Law faculty on a variety of legal issues. The views expressed are solely those of the author and are not intended to represent the views of Boston University School of Law.

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