By Mary Ziegler*
The Supreme Court’s decision in June Medical Services v. Russo was more than a little ironic. Chief Justice Roberts’s controlling concurrence read as a celebration of stare decisis, the principle that the Court should usually defer to its past decisions. And yet Roberts upended precedent. If Roberts’s concurrence becomes the standard for testing the constitutionality of abortion regulations, the courts will not have to consider whether abortion restrictions have any benefit for patients, as Whole Woman’s Health v. Hellerstedt required. In short, Roberts’s proposed rule will make it easier for states to regulate abortion. Although the Chief Justice made a point of noting that no one had asked the Court to reconsider Roe v. Wade or Planned Parenthood v. Casey, he may well be game if that invitation eventually arrives.
June Medical could be bad news for anyone committed to abortion rights. Nevertheless, it is not easy to figure out where the anti-abortion movement goes next. At first, the Court’s decision might seem to discourage patient-protective anti-abortion laws. These statutes—which claim to prevent the psychological and physical harm done by abortion—have a poor win-loss record in the Supreme Court. The Court has used patient-protective reasoning in upholding laws focused on fetal life, such as the federal Partial-Birth Abortion Ban Act. But before 2016, the Court had struck down only one restriction, a husband-notification measure, under the undue burden test. Since then, the Court has rejected every patient-protective measure it has considered. The anti-abortion movement has no shortage of options if patient-protective restrictions have backfired. Sweeping bans, like so-called heartbeat laws, focus on fetal life rather than patients. So do several restrictions that focus on procedures later in pregnancy.
As I show in my new book, Abortion and the Law in America, patient-centered arguments against abortion may be here to stay. The dissents in June Medical foreshadow some of the arguments that will likely be key to efforts to reverse Roe, many of which suggest that abortion hurts patients. The dissenters accepted Louisiana’s argument that doctors should not have third-party standing to challenge abortion restrictions on their patients’ behalf. Justice Alito agreed that there was “a blatant conflict of interest between an abortion provider and its patients.” Justices Alito, Thomas, Gorsuch, and Kavanaugh also concluded that Louisiana’s law should stand precisely because it protected pregnant people against real dangers tied to abortion. Had the dissenters prevailed, their opinion would have made it much harder to challenge any abortion restrictions.
The dissenters’ views tell us as much about what at least four members of the Court think about the reality of abortion care in the United States—and how those views may lay the groundwork for reversing Roe. Justice Alito described abortion providers as profit-driven businesspeople who barely know their patients. He invoked Kermit Gosnell, a provider convicted of killing one patient and three infants who were born alive, in detailing the risks of abortion to all pregnant people.
These descriptions reflect an anti-abortion argument that has been decades in the making. Since the 1970s, abortion opponents have tried to undermine abortion rights not by advocating for fetal rights but by contesting what abortion in the United States is really like. This approach made considerable strategic sense. The Court had not been receptive to arguments seeking to establish constitutional rights for fetuses, but incremental restrictions have fared much better. To defend these laws, abortion foes detailed the supposed benefits of abortion restrictions (and condemned the purported dangers of abortion).
Since Casey, anti-abortion leaders have focused particularly on the consequences of abortion on patients’ health and wellbeing. The Casey Court declined an invitation to unravel abortion rights. The plurality reasoned that Roe was not only a workable decision but also one that had created substantial reliance interests. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” Casey reasoned. In the years after Casey, leaders of the anti-abortion movement concluded that the Court would never reverse Roe unless the public and the Justices believed that pregnant people should not rely on abortion to lead more equal lives. Anti-abortion lawmakers introduced laws intended to show that abortion made patients sick. Targeted regulations of abortion providers, like the one struck down in June Medical, relied on this patient-protective justification. So did laws claiming that medication abortions could be reversed, that abortion caused breast cancer, or that specific abortion techniques could be banned without a health exception. These arguments have played a key role in anti-abortion advocacy for nearly thirty years. June Medical is unlikely to change that.
If anything, anti-abortion leaders increasingly emphasize claims that abortion access undermines racial justice as well as equality for women and pregnant people. This summer, new states, including Mississippi and Tennessee, have joined the list banning abortion for reasons of race, sex, or disability.
These laws, like the patient-protective statutes at issue in June Medical, thrive because of growing distrust of public-health authorities, medical experts, and even the media. A focus on the reality of abortion in the United States has undermined any consensus about the basic facts and deepened polarization. Now, the courts are asked to decide whether pregnant people often have abortions for racist, sexist, or ableist reasons, whether abortion providers are irresponsible, or whether abortion has serious side effects.
Polarization of this kind has serious costs. During the COVID-19 pandemic, the kind of distrust of medical authorities that has long defined the abortion struggle has sparked conflict about everything from mask mandates to the safety of a possible vaccine. In the context of reproductive justice, polarization has made it all but impossible for those with clashing views on abortion to work together on any reproductive justice issue, including maternal mortality to pregnancy discrimination at work.
Despite the damage they have done, we should not expect anti-abortion leaders to give up on arguments about the reality of abortion. After all, these claims just might be working. June Medical is proof of that.
*Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).