Harvard Law & Policy Review

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The Originalist Case For Letting State Courts and Officials Alter State Election Rules

By Bradley Silverman*

With voting underway and election rules being challenged in courts across the country, fears of another Bush v. Gore[1] are on the rise. As state courts and officials in Pennsylvania, North Carolina, Minnesota, Texas and elsewhere modify state election rules to accommodate the unprecedented challenges that COVID-19 has presented, some argue that their actions are unconstitutional.[2] Justice Amy Coney Barrett has not yet weighed in on the issue, and the remaining Justices appear to be evenly divided.[3] As an originalist matter, the Supreme Court should stay out of these cases. Indeed, no less an originalist than Justice Thomas has championed this understanding of the Constitution for over a quarter of a century.

The argument that the Constitution prevents state courts and officials from altering state election rules rests on two provisions. The Congressional Elections Clause says that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” subject only to congressional override.[4] The Presidential Elections Clause, meanwhile, says that “[e]ach State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.”[5] In Bush v. Palm Beach County Canvassing Board, the Supreme Court held that when state legislatures regulate presidential elections, they act “by virtue of a direct grant of authority made under [the Presidential Elections Clause].”[6] The Court relied on the 1892 case McPherson v. Blacker, which held that the Presidential Elections Clause “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.”[7] A week later, Chief Justice Rehnquist wrote a concurring opinion in Bush v. Gore arguing that “in a Presidential election the clearly expressed intent of the legislature must prevail.”[8]

The Supreme Court does not, as a general matter, review state court judgments resting on state law.[9] “A State’s highest court,” it has repeatedly held, “is unquestionably the ultimate expositor of state law.”[10] To warrant Supreme Court review, there must be a federal question.[11] The idea that a state court or official’s alteration of a state election rule warrants Supreme Court review thus requires viewing the Elections Clauses as freestanding grants of power to state legislatures, trumping even contrary provisions of their state constitutions. Palm Beach County Canvassing Board, for example, questioned whether the Florida Supreme Court had usurped “the legislature’s power to designate the manner for” holding presidential elections under the Presidential Elections Clause.[12] Chief Justice Rehnquist’s Bush v. Gore concurrence likewise asserted that the Florida Supreme Court’s judgment warranted review “to respect the legislature’s [Presidential Elections Clause] powers.”[13] And McPherson held that the Presidential Elections Clause gives state legislatures “the broadest power of determination” over presidential elections.[14]

But one could read the Elections Clauses quite differently—not to confer any powers on state legislatures, but merely to impose duties on them to set rules for federal elections, using whatever powers their state constitutions have given them. Think of it this way: if the teacher says that Bobby must choose which snack to share with the class the next day, Bobby’s mother can still make him bring a healthy snack to share instead of candy. It would do Bobby no good to say that the teacher told him to choose which snack to bring. His mother would tell him, quite rightly, that in Mom’s house, Mom’s rules apply. Likewise, under this view, the Elections Clauses say that each state legislature must choose how its state conducts federal elections, but nothing about which options it may choose from. They reserve this latter question to each state’s own constitution to answer, by giving or denying powers to the state legislature.

This understanding of the Elections Clauses takes the state legislatures “as they come—as creatures born of, and constrained by, their state constitutions.”[15] It also finds support in McPherson, which held that “[w]hat is forbidden or required to be done by a state” as to presidential elections “is forbidden or required of the legislative power under state constitutions as they exist.”[16] Significantly, if the Elections Clauses impose duties on state legislatures rather than granting them any new powers, then a state court or official’s decision to modify the state’s election rules in response to COVID-19 does not deprive the state legislature of any constitutional rights, and thus presents no federal question warranting Supreme Court review.

That is exactly the interpretation of the Elections Clauses that Justice Thomas has long advocated. Just this July, in Chiafalo v. Washington, he said that the Presidential Elections Clause “does not expressly delegate power to States; it simply imposes an affirmative duty” on them.[17] The issue there was whether states can penalize “faithless electors” who vote against the presidential candidate of the party that selected them.[18] The Court said yes, holding that the Presidential Elections Clause gives states this power.[19] Justice Thomas reached the same conclusion, but for a different reason. In his concurrence, he explained that the Presidential Elections Clause does not give states any power at all.[20] Rather, he said, states have the power to regulate presidential elections by virtue of our federal structure, because the Constitution simply never took such a power from them in the first place.[21]

Thomas first took this position in the 1995 case U.S. Term Limits, Inc. v. Thornton. [22] There, he argued that the Congressional Elections Clause “does not delegate any authority to the States,” but “simply imposes a duty upon them.”[23] Marshaling evidence from the Constitution’s ratification, he explained that the Framers had wanted “to ensure that the States hold congressional elections in the first place, so that Congress continues to exist.”[24]

Alexander Hamilton, for example, wrote in The Federalist No. 59 that without a constitutional check, the states “could at any moment annihilate [the federal government] by neglecting to provide for the choice of persons to administer its affairs.”[25] During New York’s ratifying convention, meanwhile, John Jay expressed concern that “the states [might] neglect to appoint representatives,” either by mistake or design, and stated that “certainly there should be some constitutional remedy for this evil.”[26] And at Massachusetts’ convention, delegate Caleb Strong voiced similar concerns, warning that “if the legislature of a state should refuse to make [election rules], the consequence will be, that the representatives will not be chosen, and the general government will be dissolved.”[27] As Justice Thomas explained, the Framers wrote the Congressional Elections Clause merely to prevent states from neglecting to send delegates to Congress, by imposing an affirmative obligation on them to do so. The Presidential Elections Clause too, he said, only “imposes an affirmative obligation on the States,” rather than granting them any powers.[28]

Under Justice Thomas’s originalist view of the Elections Clauses, the Supreme Court should not prevent state courts and officials from altering state election rules to assist voters during the pandemic. If the Elections Clauses merely impose duties on state legislatures without giving them any new powers, then such rule changes raise no federal questions warranting Supreme Court review. They can’t violate a state legislature’s constitutional rights, because the Elections Clauses give state legislatures no rights to violate. The rule change may or may not be correct under state law, but that is no business of the Supreme Court.

To be sure, Justice Thomas’s votes in Elections Clauses cases have not always tracked his stated views. He joined the Court in Palm Beach County Canvassing Board and Chief Justice Rehnquist’s concurrence in Bush, even though these opinions construe the Elections Clauses as grants of power to state legislatures rather than merely imposing obligations on them.[29] More recently, he voted to block state courts and officials in Pennsylvania and North Carolina from altering state election rules in response to the pandemic.[30] He has never explained how any of these votes square with his originalist understanding of the Elections Clauses, which ought to compel him to vote the other way. Truth be told, they don’t.

Should Elections Clauses issues arise after the election, the Supreme Court should follow Justice Thomas’s originalist position and resist the temptation to interfere with state election processes. Because in the end, the stakes go well beyond the election results themselves. Our faith in the Court may depend on it.

 

*Attorney, U.S. Department of Labor. The views I express here are mine alone, not my employer’s. I am grateful to Athul Acharya, Janine Balekdjian, John Hasley, Allie Hemmings, Robert Parker, and Collin Seals for their thoughtful and speedy feedback.

 

[1] 531 U.S. 98 (2000).

[2] See, e.g., Moore v. Circosta, No. 20A72 (U.S. Oct. 28, 2020) (denying application to enjoin North Carolina’s State Board of Elections from extending state deadline for receipt of absentee ballots, over objections from Justices Thomas, Alito, and Gorsuch); Republican Party of Pa. v. Boockvar, No. 20A54 (U.S. Oct. 19, 2020) (denying by an evenly divided vote a stay of a Pennsylvania Supreme Court decision extending state’s mail-in ballot receipt deadline and setting a presumption that ballots without postmarks were timely mailed); Scarnati v. Boockvar, 20A53 (U.S. Oct. 19, 2020) (same); Carson v. Simon, No. 20-3139, 2020 WL 6335967, at *6–7 (8th Cir. Oct. 29, 2020) (holding that Minnesota Secretary of State’s extension of deadline for receipt of mail-in ballots was likely unconstitutional); Order, Hotze v. Hollins, No. 4:20-cv-03079 (S.D. Tex. Nov. 2, 2020), ECF No. 63 (dismissing a similar challenge in Texas for lack of standing); see also Democratic Nat’l Comm. v. Wisc. State Legislature, No. 20A66, 2020 WL 6275871 (U.S. Oct. 26, 2020) (concurring opinions of Justices Kavanaugh and Gorsuch suggesting that state courts cannot modify state election statutes on state law grounds, concurring opinion of Chief Justice Roberts implicitly disagreeing, and dissenting opinion of Justice Kagan, joined by Justices Breyer and Sotomayor, explicitly disagreeing). This essay is limited to situations where a state court or official modifies an election rule on state law grounds. It does not address situations where they modify an election rule to comply with the U.S. Constitution or federal law.

[3] See supra sources cited in note 1.

[4] U.S. Const. art. I, § 4, cl. 1.

[5] U.S. Const. art. II, § 1, cl. 2.

[6] 531 U.S. 70, 76 (2000) (per curiam).

[7] Id. (quoting 146 U.S. 1, 25 (1892)).

[8] 531 U.S. 98, 120 (Rehnquist, C.J., concurring).

[9] See, e.g., Murdock v. City of Memphis, 87 U.S. 590, 632–33 (1874).

[10] Riley v. Kennedy, 553 U.S. 406, 425 (2008) (alterations and quotation marks omitted); accord Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.”).

[11] See, e.g., Caperton v. Ballard, 81 U.S. 238, 241 (1871); see also Sup. Ct. R. 10 (identifying “compelling reasons” that warrant certiorari, which require a federal question in essentially all cases).

[12] 531 U.S. at 73 (emphasis added).

[13] 531 U.S. at 113 (emphasis added).

[14] 146 U.S. 1, 27 (1892) (emphasis added).

[15] 531 U.S. at 123 (2000) (Stevens, J., dissenting).

[16] 146 U.S. at 25 (1892).

[17] 140 S. Ct. 2316, 2329 (2020) (Thomas, J., concurring).

[18] Id. at 2319 (majority opinion).

[19] Id. at 2324.

[20] Id. at 2329 (Thomas, J., concurring).

[21] Id.

[22] 514 U.S. 779 (1995).

[23] Id. at 862 (Thomas, J., dissenting).

[24] Id. at 863.

[25] The Federalist No. 59, at 361 (Hamilton) (Signet Classics 2003) (Clinton Rossiter ed., 1961).

[26] 2 Debates on the Adoption of the Federal Constitution 326 (J. Elliot ed. 1863).

[27] Id. at 24.

[28] Thornton, 514 U.S. at 864.

[29] See Bush v. Gore, 531 U.S. 98, 111 (200) (Rehnquist, C.J., concurring); Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 73 (2000) (per curiam).

[30] See supra sources cited in note 1.

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Reproductive Chattel: The New Jane Crow

By Michele Goodwin*

In 2000, nations throughout the world agreed to participate in the United Nations Millennium Development Goals (MDGs). One of the key objectives specifically targeted reducing pregnancy-related deaths. Nearly two dozen international organizations and 191 member state nations publicly committed to achieve eight goals, among them reducing maternal mortality. All but a few nations showed demonstrable progress. The United States was among the few nations to fail and dramatically regress.

Maternal mortality rates actually increased in the United States at a rate of nearly 140 percent since 1990. As one reporter noted, “Just as the world turned its attention to this matter with marked success, the United States stopped offering data and began moving backward.”

What accounts for this? Texas holds some clues. Texas has the regrettable distinction of the deadliest state in the developed world in which to birth a child. As one commentator explained, “the Texas maternal mortality rate ‘now exceeds that of anywhere else in the developed world.’” It is also a state with an overwhelmingly male legislature, which prides itself on enacting the most restrictive abortion laws in the nation. As the Texas Tribune reported in 2017, “Once again, the Texas Legislature is mostly white, male, middle-aged.” At that time, men held nearly “80 percent of the Legislature’s seats.” Members of the Texas legislature filed nearly twenty antiabortion bills in 2017 alone.

Perhaps this shouldn’t be surprising, because Texas lawmakers pride themselves on efforts to criminalize and suppress reproductive rights. This is exemplified by the Texas targeted regulation of abortion providers (TRAP) laws the U.S. Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. Even with such a victory, many abortion clinics had already shuttered. What Texas legislators failed to account for is that Texas abortion clinics also provided contraceptive and maternal care for the overlooked and underserved poor women in their state.

However, Texas is not alone. Alabama, Kentucky, Georgia, and other states similarly engage in efforts to eviscerate reproductive rights. Behind their antiabortion legislating are staggering rates of maternal mortality. A common thread in these abusive practices is the impact they have on Black women. For example, Louisiana, which enacted the TRAP law at issue in June Medical Services, exceeds the nation’s maternal mortality rate by a dramatic proportion. While maternal mortality is dire among Black women in the United States generally, in Louisiana the incidences of death are far greater. The average maternal mortality for white women is 18.1 deaths per 100,000 live births in the United States and 27.3 in Louisiana. For Black women, the U.S. incidence of maternal mortality is 47.2 and in Louisiana 72.6.

Policing the Womb shows history and power matter to any contemporary discourse regarding reproductive health, rights, and justice, including the legacies of slavery and Jim Crow in making complex, enduring chattel of Black women and girls. As DNA evidence confirms, during the antebellum period Black girls and women endured forced sexual bondage and well as physical labor imposed by people who claimed power over them. Simply put, American capitalism relied not only on their physical labor, but also literally their reproductive capacities. Yet, the cruelties of slavery also rendered Black women and girls expendable, making fungible, vulnerable chattel of them. In the past, self-described (private) masters claimed dominion over Black women’s reproductive capacities. Today, the state does so.

In other words, robust legislating that chips away at reproductive rights and encroaches on women’s reproductive healthcare is about more than abortion. It is about a fundamental lack of respect for the humanity, dignity, and citizenship of girls and women. It shows how conservative movements, combined with the rise and influence of a religious orthodoxy, successfully express themselves at the legislative level, particularly in the realms of reproductive autonomy and privacy. The book sharpens its gaze on the sex and gender asymmetries in legislatures, which more likely than not lead to the enactment of TRAP laws.

Policing the Womb considers how these strategic moves undermine fundamental constitutional rights. The book issues a cautionary tale to highlight the weaknesses in current Supreme Court’s jurisprudence, particularly the framework articulated in Casey, which revived paternalistic ideologies associated with women’s capacity to reason, consent, and make autonomous reproductive healthcare decisions, because historically the state and courts have been complicit in undermining women’s economic capacities and liberty interests.

Given what is at stake, it is critical to bring attention to how the recent robust lawmaking that restricts when and under what circumstances people may access reproductive healthcare rights not only functions to undermine constitutional rights, but also leads to the surveillance of reproduction, criminalization of conduct during pregnancy, and ultimately the burdening of health. In the abortion context, antiabortion lawmaking purposefully and strategically operates in the shadow of Supreme Court decision-making to intentionally thwart the spirit of the Court’s guidance in Roe v. Wade and Planned Parenthood v. Casey, which articulated that “a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

As scholars, we should commit ourselves to reflecting on the personal costs associated with states policing women’s pregnancies and bodies. In doing so, our task must be to highlight how states’ selective interest in and punishment related to reproductive rights often targets women of color and the poor. As states enact measures to prosecute women for drug dependence during pregnancy or any conduct that endangers their pregnancies, what becomes clear is that such rules are not intended to be universalized and applied to all women, but rather to profiled, vulnerable subgroups.

The intergenerational suffering of Black women in former slave states remains visceral and part of the horrific legacies of institutionalized chattel bondage. For Black women in Texas, Louisiana, Alabama, Georgia, West Virginia, and elsewhere, not only is their reproductive freedom illusory, but staying alive during pregnancy is not a guaranteed, foregone conclusion. Private reproductive bondage in these former slave states is now public. That is, where planters once controlled Black women’s reproduction on their plantations and elsewhere, now the state controls what Black women (and others) may do with their bodies during pregnancy. In neither case has the regard for Black women resulted in the autonomy, independence, or privacy deserved.

Policing the Womb provides an important intervention, elevating the concerns of women too frequently ignored, disregarded, and overlooked in an ongoing domestic reproductive chattel system, which has outlasted the Antebellum period and morphed into present-day state surveillance of pregnancy. And, just as with slavery, states impose their reproductive interests and demands on poor women who are left to bear the weight of those legislative decisions lest they experience cruel civil or criminal punishment.

 

*Michele Bratcher Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. She is renowned nationally and internationally for her work in health policy, constitutional law, reproductive health, rights and justice, and cultural politics. She is the author/editor of six books, including Policing the Womb: Invisible Women and the Criminalization of Motherhood. Her commentaries appear in Ms. Magazine, the New York Times, Washington Post, Forbes, Salon, and the Chicago Sun Times, among others.

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Why Whole Woman’s Health’s Balancing Test Still Applies After June Medical

By David S. Cohen*

What’s the test in lower court cases challenging abortion restrictions? Is it the burdens versus benefits balancing test from Whole Woman’s Health v. Hellerstedt? Or is it the substantial obstacle test, with no balancing, from Chief Justice Roberts’ concurring opinion in June Medical v. Russo? This is the burning question in the post-June Medical world. Answering it takes us into the world of pornography, voting paradoxes, horizontal versus vertical stare decisis, and the simple-yet-beguiling dictum/holding divide.

The solution to this problem bridges two scholarly interests of mine—reproductive rights and Supreme Court decision-making. I’ve already written about June Medical’s implications for future Supreme Court abortion cases, with the Chief signaling that he is perfectly fine to allow most restrictions to go into effect. Here, I want to focus on the lower courts, who are bound to follow Supreme Court precedent, as opposed to hints as to what the Court might do in the future. But what is the precedent from the divided decision in June Medical?

So far, two lower courts have tackled this problem, reaching opposite conclusions. First, in early July, the District of Maryland found that the FDA’s requirement that abortion pills be dispensed at the clinic rather than being sent by mail is unconstitutional during the coronavirus pandemic. In doing so, the court applied the Whole Woman’s Health balancing test. It reasoned that the “common denominator” between the June Medical plurality and concurring opinions was that the Louisiana law was a substantial burden. Beyond that, there was no common denominator about a test, so the Whole Woman’s Health’s balancing test continues to be the law.

In early August, the Eighth Circuit ruled otherwise. In a case challenging a series of Arkansas abortion restrictions, the Court of Appeals instructed the lower court to re-evaluate the claims based on the Chief’s June Medical concurrence. The court reasoned that the Chief’s opinion “is controlling” because his “vote was necessary in holding” that the Louisiana law was unconstitutional. The court also noted, quoting Justice Kavanaugh’s June Medical dissent, that five Justices (the Chief and the four June Medical dissenters) rejected the Whole Woman’s Health test.

In dueling letter briefs to the Fifth Circuit in a case challenging Texas abortion restrictions, attorneys on both sides of the abortion divide have also produced different analyses. The attorneys representing the abortion clinics[1] told the court that there was no common denominator between the Breyer and Roberts opinions, so neither opinion is controlling, leaving Whole Woman’s Health the decisional rule. The attorneys for the state of Texas,[2] of course, took the opposing position, claiming that Chief Justice Roberts’ rejection of the balancing test in favor of a substantial burden test (without balancing benefits) was now the correct test .

So who’s right here? The District of Maryland and the abortion clinic attorneys have reached the right result, but their analyses are not technically correct.

The right way to get there relies on what’s called the Marks rule. Marks v. United States is a 1977 Supreme Court case that addressed the proper standard for pornography convictions. Deciding the case meant the Justices had to determine what to make of a prior obscenity decision that had fractured opinions from the Justices. Justice Powell’s opinion in Marks announced what is now known as the narrowest grounds rule: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’”

As easy as it is to find and quote this rule, there has been deep scholarly and judicial disagreement (and confusion) over how it is applied (and even whether it should be the rule in these situations). The best scholarly work about the rule comes from Professor Maxwell Stearns, who has long written about Marks. In an excellent forthcoming article (“Modeling Narrowest Grounds”), Professor Stearns describes the theoretical underpinnings of the rule and explains its benefits and limitations. The rest of the analysis in this post is based on my synthesis of emails he and I have traded about his article, which is still in draft form, and June Medical over the past two weeks. (Though any flaws in this analysis are mine alone.)

The key issue in determining if and how Marks applies is whether the Court’s judgment is based on a single dimension. A single dimension means the Court’s decision turns on determining whether the applicable legal principle should be broader or narrower along a single scale. If there is a second issue that is essential for the judgment, such as determining the applicability of a second legal principle that cannot be scaled consistent with the first issue, there are two dimensions. Marks can only apply when there is a single dimension. When there are two dimensions, such as a disagreement over a separate jurisdictional issue, there is a risk of a voting paradox, something I’ve written about extensively.

For instance, in McDonald v. Chicago, the case in which the Supreme Court incorporated the Second Amendment against state and local governments, the split decisions created a voting paradox. In that case, eight Justices rejected incorporation of the Second Amendment under the Privileges or Immunities Clause and five Justices rejected incorporation under the Due Process Clause. Since both claims were rejected by a majority of the Justices, it would seem that the Second Amendment wouldn’t be incorporated. However, because four Justices thought it was incorporated under the Due Process Clause and a separate Justice believed it was incorporated under the Privileges or Immunities Clause, the outcome of the case is that the Second Amendment was incorporated. Thus, the paradox—separating out the dimensions leads to a conclusion that there is no incorporation, but the outcome of the case is that there is incorporation.

In June Medical, there is no paradox because there is only one dimension that determines the outcome of the case—how protective the Constitution is of the abortion right. Characteristic of one-dimension cases in which Marks applies, the fragmented opinions in the case can be aligned along a spectrum of more protective to least protective: Justice Breyer’s plurality opinion would protect the abortion right the most, the varying dissenting opinions would protect it the least, and Chief Justice Roberts’ opinion is in the middle. Thus, under Marks, the Chief Justice’s opinion—the narrowest that supports the judgment in the case—is the controlling opinion.

However, that isn’t the end of the analysis. The Chief’s opinion can be recast as one that has two parts to his analysis of this one dimension. First, he says that he disagrees with the legal analysis in the Breyer plurality because he doesn’t believe the Constitution requires balancing burdens and benefits to determine if an abortion restriction is unconstitutional. Rather, under the Chief’s rule, if an abortion law has a legitimate basis, it is constitutional as long as it doesn’t create a substantial burden. This is a rejection of the legal standard from Whole Woman’s Health. But second, the Chief says that, even though he rejects the legal standard from that case, as a matter of stare decisis he will follow the specific factual holding of the case (which he dissented from in 2016)—that admitting-privileges laws constitute a substantial burden. Because he follows this part of Whole Woman’s Health, he concludes the Louisiana law is unconstitutional.

If the Marks analysis ended with concluding that the Chief’s entire opinion controls, lower courts would have to apply both parts of his opinion—his relaxed test as well as the conclusion that admitting privileges laws are unconstitutional. However, the Marks analysis, by its very language, also requires determining the holding of the controlling opinion in order to determine what part of the Chief’s controlling opinion creates the binding precedent for lower courts.

Looking for the holding from the Chief’s opinion gets us to our final answer. The first part of his analysis—about the proper test for future cases—is dicta because it is not essential to the resolution of the matter before the Court. Why not? Because he says in the second part of his analysis that he is going to apply the factual holding from Whole Woman’s Health to determine that the law is unconstitutional. In other words, the new standard the Chief puts forth in the beginning of his opinion is not necessary to reach his conclusion that Whole Woman’s Health should apply to the Louisiana law as a matter of stare decisis.

What this means is that June Medical produces a very limited holding, one that is only about the unconstitutionality of admitting privileges. That is all we can take away by applying Marks to the fractured opinions. Beyond that, we have no new holding from the Supreme Court about a legal standard to apply in abortion cases. That means Whole Woman’s Health’s balancing test, which was announced in a majority opinion from the Supreme Court, continues to be the test lower courts must apply going forward.

What the Supreme Court will do as a matter of horizontal stare decisis is a different matter, as five Justices have signaled their support for a test that allows more state abortion restrictions. But, as a matter of vertical stare decisis, Whole Woman’s Health continues to bind the lower courts because any language to the contrary in the Chief’s controlling June Medical opinion was merely dictum.

 

*David S. Cohen (J.D.) is a Professor of Law at the Thomas R. Kline School of Law at Drexel University.

 

[1] Letter Brief of Plaintiffs-Appellants at 3–6, Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir. July 10, 2020), 2020 WL 4060434.

[2] Letter Brief of Respondents at 5–7, Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir. July 10, 2020), 2020 WL 4060435.

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Abortion After June Medical

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).

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Winning by Losing: Chief Justice Roberts’s Strategy to Eviscerate Reproductive Rights and Justice

By Maya Manian*

In June Medical Services v. Russo, the U.S. Supreme Court struck down a Louisiana law that would have shuttered all but one abortion clinic in the state. Unfortunately, that decision came at a steep cost: Chief Justice Roberts wrote a separate opinion in June Medical weakening the legal standard for protecting abortion access and setting forth a road map for how states can attack abortion rights going forward. Furthermore, in Little Sisters of the Poor v. Pennsylvania, Roberts joined the Court’s four other conservatives in upholding the Trump Administration’s excessively broad exemptions to the ACA’s contraceptive coverage requirement.

Together, June Medical and Little Sisters of the Poor represent the dawning of an unprecedented attack on reproductive rights and justice. Chief Justice Roberts put forward a clear path to eviscerate abortion rights and to permit attacks on access to contraception without overtly overturning precedent, rendering reproductive health care available in theory but inaccessible in reality for low-income people and people of color.

June Medical Services v. Russo: Upholding While Undermining Precedent

In a striking parallel to the initial constitutional challenge to the Affordable Care Act (ACA), Roberts’s separate opinion in June Medical appears to adopt a strategy of winning by losing. Roberts voted with the liberal bloc to protect the legitimacy of the Supreme Court while still advancing a doctrinal agenda that will dismantle reproductive rights. The 5–4 decision in June Medical invalidated a Louisiana law requiring abortion providers to obtain admitting privileges at local hospitals. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down an almost identical Texas law because the Court recognized that admitting privileges laws serve no health benefits yet impose substantial obstacles to accessing abortion care. Even though he dissented in Whole Woman’s Health, Chief Justice Roberts joined the four liberal Justices in June Medical to overturn Louisiana’s medically unnecessary admitting privileges mandate.

Roberts’s separate opinion concurring in the judgment made clear that he continued to disagree with the majority opinion in Whole Woman’s Health. In that case, Justice Kennedy provided the fifth vote to bolster Planned Parenthood v. Casey’s undue burden standard. Whole Woman’s Health held that courts must balance the actual benefits of an abortion restriction against its burdens in order to determine whether the law imposes a burden that is undue.

Roberts rejected Whole Woman’s Health’s balancing test for protecting abortion rights. Instead, he would ask only whether the burdens imposed by an abortion regulation amount to a substantial obstacle to accessing abortion care. The Chief Justice drops any requirement that courts compare the proven benefits of an abortion law with its burdens. Ironically, Roberts asserted that the principle of stare decisis compelled him to adhere to Whole Woman’s Health’s holding with regard to admitting privileges laws, while at the same time he undermined the legal standard set forth by that very precedent. As Justice Kavanaugh pointed out in his separate dissent, “[t]oday, five Members of the Court reject the Whole Woman’s Health cost-benefit standard.”

As the new swing vote on abortion cases, Roberts’s opinion indicates that going forward the Supreme Court will likely uphold all kinds of onerous abortion restrictions. As legal historian Mary Ziegler documents, over the last several decades, anti-abortion forces have chipped away at access to abortion care through a wide variety of incrementalist measures, including laws imposing targeted regulation of abortion providers (“TRAP” laws) and through violence directed at providers and clinics. Currently, six states have only one abortion provider left and low-income women cannot obtain health care coverage for abortion care in most of the country due to the Hyde Amendment. Under Roberts’s watered down interpretation of the undue burden test, federal courts could uphold numerous burdensome regulations.

In fact, shortly after deciding June Medical, the Supreme Court ordered the Court of Appeals for the Seventh Circuit to reconsider two abortion rights victories in light of the diminished legal standard announced by Roberts. The federal appellate court had struck down Indiana laws requiring an eighteen hour waiting period after a government mandated ultrasound and forcing teenagers to notify parents of their decision to seek abortion care after they receive an order from a court bypassing parental involvement. Those victories for abortion rights now appear to be in jeopardy. Other restrictions such as limits on medication abortion and bans on telehealth for abortion care—especially important means of access during the coronavirus pandemic—could also be upheld. As David Cohen and Carole Joffe poignantly document, abortion patients already face an obstacle course when seeking care. Roberts’s weakened legal standard for abortion rights paves the way for states to impose so many obstacles that only the affluent will be able to readily access the full spectrum of reproductive health care—replicating conditions that existed prior to Roe v. Wade.

Little Sisters of the Poor v. Pennsylvania: Eviscerating Access to Contraception

In addition to issuing a weaker standard for reviewing abortion restrictions, the Supreme Court allowed the Trump Administration to undermine access to contraception. In Little Sisters of the Poor v. Pennsylvania, the Court decided that the Trump Administration could gut the Affordable Care Act’s (ACA) requirement that health insurance plans cover women’s essential preventive services, which includes contraceptive care. 

Little Sisters of the Poor is the culmination of decade-long litigation over the ACA’s promise of equitable access to essential health care for all Americans. Congress passed the Women’s Health Amendment as part of the ACA to decrease the disparity in health care costs experienced by women.

At its core, the Women’s Health Amendment is an anti-discrimination law. In other words, Congress intended to ensure women have the same health insurance coverage for their essential health care as men. As part of this mandate for equality, all FDA-approved prescription contraceptives must be covered without a copay in ACA-compliant health insurance plans.

Contrary to conservative claims, the coverage requirement is not about forcing nuns to pay for contraception. In fact, Obama-era rules ensured that religious organizations could claim an exemption from birth control coverage, while providing for an alternative mechanism for women to access contraceptives. The Obama Administration offered an accommodation to religious non-profits by creating an opt-out process. Religiously motivated organizations could file a one-page opt-out form, and the government would then ensure birth control coverage through other means. Yet, organizations like the Little Sisters of the Poor objected to the mere filing of a one-page form as too burdensome. Businesses and universities also challenged the ACA’s equal coverage mandate by seeking a complete exemption from coverage for employees and students.

In 2017, the Department of Health and Human Services issued two new regulations allowing almost any employer, including large corporations and colleges, to refuse to include contraceptives in their health insurance plans based on religious or even “moral” objections. Strikingly, the Trump Administration’s regulations contain no alternative mechanism to ensure women’s access to birth control coverage. Those regulations had been enjoined by a lower federal court, but the Supreme Court decision in Little Sisters of the Poor allows the Trump rule to go into effect—leaving tens of thousands of women without insurance coverage for contraception.

The Court held that the executive branch has the statutory authority to carve out contraception from the ACA’s equitable health care coverage mandate. The majority opinion—in which Roberts joined his fellow conservative Justices—did not directly address claims about religious freedom. Instead, the majority focused on technical issues of statutory interpretation and administrative procedure to conclude that the Trump Administration could issue extremely broad exemptions to contraception coverage despite effectively undoing women’s equal access to preventive care.

In yet another example of the Supreme Court favoring conservative religious claims over the right to equality under the law, Justice Alito wrote a separate opinion directly addressing assertions that religious freedom not only permits but in fact requires broad exceptions to the contraceptive coverage mandate. In an opinion joined by Justice Gorsuch, Alito asserted that the Religious Freedom Restoration Act mandates exemptions like those issued by the Trump Administration. Justice Alito relied heavily on a prior decision, Burwell v. Hobby Lobby Stores, in which five Republican-appointed Justices held that corporations are entitled to accommodations against the contraceptive coverage requirement. Notably, Justice Alito’s Little Sisters of the Poor opinion exclaims:

“The Court has held that there is a constitutional right to purchase and use contraceptives . . . [b]ut the Court has never held that there is a constitutional right to free contraceptives.”

Justice Alito’s statement ignores the constitutional right to equality—and that the crux of the Women’s Health Amendment ensures that women have equal access to essential health care. Furthermore, Alito’s statement elides that insurance coverage for contraception is not “free” but earned by women as part of their compensation for employment.

Notably, Chief Justice Roberts did not join Alito’s more radical opinion. Instead, Roberts’s strategy relied on more technical arguments to allow the Trump Administration to hollow out the ACA’s equity mandate. In both the June Medical and Little Sisters of the Poor decisions, Roberts’s approach lays down a path for opponents of reproductive justice to slowly eviscerate access to abortion and contraception.

Although news reports indicate that the decision was 7–2, the opinions behind those numbers tell a more complicated story. Justice Kagan wrote an opinion, joined by Justice Breyer, concurring in the judgment, emphasizing that she agreed only with the result but not the reasoning of the five conservative Justices. Kagan felt the statutory text compelled her to concede that the Trump Administration possessed the authority to issue exemptions to coverage of contraception.

Nevertheless, Justice Kagan’s opinion offered an alternative legal route to challenge the Trump Administration’s attack on contraceptive coverage. She noted that the lower federal court had not reached a decision on an additional legal ground for striking down the broad exemptions granted by the Trump Administration—namely, that the exemptions are “arbitrary and capricious.” The Administrative Procedure Act’s arbitrary and capricious standard demands that administrative decisions reflect reasoned decision-making and draw a rational connection between the problem identified and the chosen solution. Justice Kagan set forth a clearly-reasoned argument for why the Trump Administration’s unduly broad contraceptive carve-out could contravene the arbitrary and capricious legal standard. Thus, challengers could attempt to block implementation of Trump’s attack on birth control in the lower federal court based on Justice Kagan’s opinion.

Justice Ginsburg wrote a dissenting opinion, joined by Justice Sotomayor, articulating the devastating harms imposed by the Trump Administration’s far-reaching contraceptive coverage exemptions. The government’s own estimates showed that, at a minimum, between 70,500 to 126,400 women would lose birth control coverage under the Trump exemptions. Ginsburg emphasized that ready access to contraception both “safeguards women’s health and enables women to chart their own life’s course.” Furthermore, Ginsburg noted that the ACA has helped women in lower-income groups access health care more broadly and preventive services in particular. The Trump Administration’s exemptions impose significant burdens on those women, since they will now either struggle to find coverage for contraception elsewhere or be forced to pay out of pocket. The most effective methods of contraception are also the most expensive, and limiting health insurance coverage of these contraceptives disproportionately burdens poor women and women of color.

The Unequal Impacts of the Supreme Court’s Assault on Reproductive Rights  

The ACA’s mandate for equity in health care through contraceptive coverage rests on medical experts’ conclusion that birth control is essential preventive care. Evidence (and common sense) tells us that supporting and expanding access to contraception reduces the rate of unintended pregnancy, which reduces the rate of abortion. Yet, not only did the Supreme Court undermine access to contraception, Chief Justice Roberts also cleared a path for restrictions on abortion care. By restricting access to both contraception and abortion, the Court has exposed what really animates these heated debates—a contest over who controls women’s decisions about sexuality and gender roles in a secular society.

Anti-abortion advocates lost the battle against abortion rights this time, but Chief Justice Roberts set forth a strategy for winning the war against reproductive rights. The Supreme Court’s dismantling of reproductive rights will not impact all people equally. As Seema Mohapatra explains, low-income people and people of color will disproportionately suffer as the Roberts Court rolls back strides towards reproductive justice.

 

*Maya Manian (J.D.) is a Visiting Professor at American University Washington College of Law.

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