The 2019 Supreme Court Term has been full of foreshadowings. These suggested possible outcomes of the Court’s decision Monday in June Medical Services. The signs Court watchers were reading included extensive debates in other cases about stare decisis, or adherence to precedent, among members of the Court. For example, the justices split quite vocally over this question in Ramos v. Louisiana, 590 U.S. ___ (2020), which determined that states as well as the federal government must require criminal trial juries to reach unanimous verdicts. Ramos required the Court to overrule an earlier case and Chief Justice Roberts joined Justice Alito’s dissent, which emphasized the importance of preserving stare decisis.
Precedent was thought to be important on several different levels in the June Medical Services case. Most immediately, the challenged Louisiana law was almost identical to one struck down four years ago in Whole Women’s Health v. Hellerstedt, 579 U.S. ___ (2016). Many believed that the addition of Justices Gorsuch and Kavanaugh to the Court between Whole Women’s Health and now would mean that the Court would overturn Whole Women’s Health. And if the new justices had prevailed, it would have. More broadly, June Medical Services could have overturned the overarching precedent on abortion, Planned Parenthood v. Casey, 505 U.S. 833 (1992), which itself relied significantly on stare decisis to reaffirm the protection of a woman’s right to choose an abortion derived from Roe v. Wade, 410 U.S. 113 (1973), while fundamentally changing the standard applied to invalidate restrictions on abortions.
So it is perhaps not surprising that Chief Justice Roberts’ opinion in June Medical Services relied heavily on stare decisis. Roberts concurred in the judgment striking down Louisiana’s law, but did not join the reasoning of Justice Breyer’s opinion for a four-member plurality. Elaborating upon the rationale for respecting past precedent, Roberts focused on a traditional common law justification—the possibility that individual judges or justices might err. We can find the seeds of this idea as far back as the early seventeenth-century writings of Sir Edward Coke, who lauded the “artificial reason” of the common law as greater than any man’s natural reason.
Common law respect for precedent supports incremental change more consistent with traditional conservatism than with the originalist reasoning of many of the dissenters in June Medical. Hence it makes sense that Roberts’ opinion references Sir Edmund Burke, often considered one of the intellectual forerunners of modern conservatism.
Yet in one of the more recondite turns of June Medical, Roberts’ opinion undermines the Supreme Court’s most recent abortion precedent—Whole Women’s Health v. Hellerstedt, in which Roberts dissented—in favor of the 1992 decision in Planned Parenthood v. Casey, 505 U.S. 833. From a stare decisis perspective, Roberts justifies this departure from Whole Women’s Health by explaining that “stare decisis is pragmatic and contextual, not ‘a mechanical formula of adherence to the latest decision.’” 591 U.S. ___ at 4 (Roberts, CJ, concurring in judgment). If a recent case departs from a longstanding principle, then stare decisis may justify returning to the principle and ignoring intervening anomalies.
Doctrinally, Roberts’ opinion reaffirms Casey’s decision that governments cannot impose an undue burden on a woman’s ability to obtain an abortion pre-viability. At the same time, it rejects any implication from Whole Woman’s Health that the health benefits to a woman or lack thereof should be weighed in ascertaining the validity of the law. This position, which the dissenters agreed with, means that even the most patently pretextual assertion that a state was attempting to protect a woman’s health by restricting access to abortion would be constitutional as long as the restriction itself did not place a substantial obstacle in the face of a woman’s ability to obtain an abortion.
The Ramos case, however, suggests that there may be future debates about the precedential status of Roberts’ own opinion. In Ramos, Justices Ginsburg and Breyer joined a part of Justice Gorsuch’s opinion for the Court calling into question whether “a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.” If this view garnered more support, Roberts’ effort to diminish the significance of the five-Justice opinion Whole Women’s Health in June Medical would lose traction.
From an abortion rights perspective, the relationship between the laws and facts underlying June Medical and Whole Women’s Health may furnish one hopeful change to existing doctrine. Whereas in Whole Women’s Health, the Court had invalidated the Texas law in question only after it had taken effect and the number of abortion providers within the state had diminished drastically, the June Medical case involved a longstanding facial challenge to a law whose penalties had not yet been enforced due to a temporary restraining order. Given the six years of litigation, substantial evidence had been gathered to support the abortion providers’ claims that they would not be able to gain admitting privileges to the relevant hospitals. Nevertheless, a majority of the Court was willing to accept a facial challenge without taking the wait-and-see approach that preceded Whole Women’s Health.
With the decision in June Medical, both stare decisis and abortion have lasted another day. How many more days they have is an open question.
Bernie Meyler is the Carl and Sheila Spaeth Professor of Law and Associate Dean for Research and Intellectual Life. She is a scholar of British and American constitutional law and of law and the humanities.