The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
You may recall the June Medical case, decided towards the end of the Supreme Court's recently-completed term. The plaintiffs had challenged a Louisiana statute imposing various "admitting privilege" restrictions on providers of abortion services.
The Louisiana statute was "almost word-for-word identical" to a Texas statute that the Court had invalidated in the Whole Woman's Health case in 2016.
The Court in June Medical found for the plaintiffs. Four Justices (Breyer, Ginsburg, Sotomayor, and Kagan) voted to invalidate the Louisiana statute and joined Justice Breyer's opinion: "[W]eigh[ing] the law's asserted benefits against the burdens it imposes on abortion access," they concluded that the Louisiana statute, like the Texas statute before it, imposes an "undue burden" on a woman's right to secure abortion access and is therefore unconstitutional.
Justice Roberts also voted to invalidate the Louisiana statute. He did not join the plurality opinion, but wrote separately, declaring, in effect: We have already decided this case, back in 2016 when we invalidated the Texas statute, and stare decisis requires us to apply the same judgment to the "nearly identical" Louisiana law:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking pre-viability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.
Justice Roberts also included a lengthy discourse in which he re-iterated the position that he had previously articulated, in dissent, in Whole Woman's Health: That Whole Woman's Health had been wrongly decided, and that the courts should not, when assessing the constitutionality of abortion restrictions, weigh, or balance, the benefits and burdens associated with the restriction; rather, the sole question in such a case is whether the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."
Four Justices (Thomas, Alito, Gorsuch, and Kavanaugh) voted in favor of the State. In four separate dissents, they cited numerous grounds for their common position: that the plaintiffs lacked standing to challenge the statute, that the statute did not pose an "undue burden" on women seeking abortions, and/or that the Court should give greater deference to the LA legislature's determination that the law's benefits were legitimate and would outweigh whatever burdens the law imposed.
So there it stands: 5-4 for plaintiffs.
What, though, does it mean? Given that there was no position garnering a majority of the Court, what is "the law" applicable to state abortion restrictions going forward? How is the decision to be applied by lower courts in future cases involving other, different, restrictions on abortion access imposed by state law?
A panel of the 8th Circuit recently faced these questions (Hopkin v. Jegley, available here), and made a thorough hash of things. The context was this: In 2017, the federal district court in Arkansas held that a number of Arkansas laws restricting abortion providers were unconstitutional, based (in part) on the Whole Woman's Health precedent. The state appealed.
Last week, the appeals court issued its decision. It described, at considerable length, Justice Roberts' views of the proper way to conduct the analysis of the constitutionality of abortion restrictions (including his views on the inappropriateness of employing any sort of "balancing" test). It noted that the district court had "applied the Whole Woman's Health cost-benefit standard to the challenged laws without the benefit of Chief Justice Roberts's separate opinion in June Medical," and it remanded the case back to the district court "for reconsideration in light of Chief Justice Roberts's separate opinion in June Medical, which is controlling."
Justice Roberts' opinion is controlling? How so? It is true, as the panel opinion put it, that Roberts "provided the critical fifth vote" in favor of striking down the Louisiana law. But the same is true of Justice Ginsburg, or Justice Kagan; their votes were just as "critical" to the outcome of the case. Why does Roberts' lone voice get to be "controlling"?
The court explained that it was applying the "narrowest ground" principle from Marks v. United States, 430 U.S. 188 (1977):
Chief Justice Robert's vote was necessary in holding unconstitutional Louisiana's admitting-privileges law, so his separate opinion is controlling. See Marks v United States ("When no single rationale explaining the result [of a case] 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").
But the Marks principle doesn't make Justice Roberts' opinion controlling, because Justice Roberts' opinion has a great deal in it that has absolutely no bearing on the (narrow) grounds underlying his concurrence in the Court's judgment. The narrow "grounds" on which he concurred in the judgment were these: We have decided this very case before, and stare decisis requires that we decide it the same way again. Full stop. Everything else in Justice Roberts' opinion is dicta—reasoning and viewpoints that are not necessary to the judgment that he has reached.
So, contrary to the 8th Circuit panel's notion that June Medical somehow calls Whole Woman's Health into question, it does just the opposite; it reaffirms the earlier case, although (very) narrowly. Applying the Marks principle correctly, the Court's holding in June Medical is Roberts' position underlying his vote to invalidate the Louisiana statute: that the Whole Women's Health case is live precedent to be followed, at least as to cases with 'nearly identical' facts.
It makes it a very narrow holding, to be sure—but it is an odd reading indeed that would convert it, as the 8th Circuit panel has done here, into one that would overturn the very case on which all five Justices rely.
I am not suggesting that all of that dicta in Justice Roberts' opinion can or should be ignored; it clearly signals, as surely it was intended to signal, what the Court might do in future cases. But it should not be converted, by sleight of hand, into the law of the land, as a holding of the Court, unless and until it is truly a holding of the Court.