Fractured Opinions, Stare Decisis, and Reproductive Rights

An 8th Circuit panel makes a hash out of the interpretation of the fractured opinions in SCOTUS' recent June Medical decision

|The Volokh Conspiracy |

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.

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  1. Wasn’t Powell’s dicta in _Baake_ the basis of nearly 50 years of Affirmative Retribution in Higher Ed?

    1. No, it’s not the same thing.

      Two different blocs of four justices joined Powell’s opinion in various parts.
      It was fractured, but a legit majority opinion.

      1. In Bakke, four justices (led by Justice Brennan) concluded that remedying chronic underrepresentation of minorities in the medical profession was a compelling interest justifying race-conscious admissions. Justice Powell concluded that diversity (but not remedying underrepresentation) was a compelling interest. It’s not clear why one would say that Justice Powell’s opinion was the narrowest ground of agreement (or, for that matter, why one would say that Justice Brennan’s was). In fact, they are different in kind; one is not narrower than the other. Under Marks, there was NO ground that five justices agreed on to uphold UC Davis’s reliance on race. If 4 justices say, “Defendant wins because of A but not B,” and 1 justice says, “Defendant wins because of B but not A,” there is no majority holding for either A or B. (There is, of course, a majority for the judgment.)

        1. The narrowest ground precedent does not need to be invoked, because Powell has 5 Justices on board for every part of his opinion.

          1. With all respect, I do not believe that is true. See Footnote 1 of the Brennan opinion: “We also agree with Mr. Justice POWELL that a plan like the “Harvard” plan, see ante, at 316-318, is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.” Justice Powell upheld the use of race because he believed that race-consciousness was justified by a diversity interest, which, he said, was a compelling one. Justice Brennan did NOT rest his rationale on diversity but upon remedying “the lingering effects of past discrimination.” ONLY Justice Powell expressed the view that diversity was a compelling interest.

            So, four justices agree on a backward-looking rationale — remedying the effects of prior discrimination. One additional justice rests his conclusion on a forward-looking rationale. But that does not mean that there are five justices overlapping on the rationale.

  2. I come here merely to note that we are talking about protecting a barbaric practice which just so happens to be legal today. Slavery was legal. The Holocaust was legal.

    I am willing to concede every argument for the sovereignty of the mother over her own body provided we likewise recognize the sovereignty of the child she is carrying over its own body.

    But I will not put my hand to any concept of unpersons. Not as justification for enslavement, nor racial cleansing, nor personal convenience.

    1. RE: “I am willing to concede every argument for the sovereignty of the mother over her own body provided we likewise recognize the sovereignty of the child she is carrying over its own body. ”

      Absolutely! The fetus owns ITS OWN body. But it does not own THE WOMAN’S body. Therefore, according to the libertarian self-ownership principle, the woman should be entitled to make the fetus stop occupying, using, sharing, and traumatizing HER body longer than she wishes to allow, EVEN THOUGH the fetus owns ITS OWN body.

      We hear all the time about how a fetus is a distinct entity, separate from the woman. Well then, let it go be a distinct entity somewhere separate from the woman, for as long as it can last (usually less than five minutes). Own the separateness!

      1. You thought you had an aha there, but you don’t. Libertarians don’t have a “self-ownership” principle. You’re perhaps are thinking of the idea of non-coercion.

        Your rights do not extend to the point of denying another person their rights. When a woman becomes pregnant through her voluntary actions, her developing child isn’t “coercing” her by being alive, that’s daft. She made her choice, and pregnancy is one of the natural outcomes of that choice. Non-coercion isn’t a get out jail free card.

        1. “When a woman becomes pregnant through her voluntary actions”

          Why should volunatariness matter except to make abolishing abortion more palatable to non-ideologues who would find requiring even a young girl to carry a rape or incest pregnancy to term ghoulish? If it’s murder, it’s murder. In for a penny….

          1. A miscarriage consequent to strenuous exercise, or a night of strenuous alcohol consumption, or an automobile accident, or a fall seemingly would precipitate a crime under the personhood standard.

          2. “If it’s murder, it’s murder.”

            This seems like an odd argument. So if somebody barges into your home at 2am and you shoot them, it makes no difference whether (A) it was an armed robber coming to steal, or (B) your friend that you just asked to come over?

            1. Of course it does. What does that have to do with the subject at hand?

        2. RE: “Your rights do not extend to the point of denying another person their rights.”

          That’s true! But there is no right– for any person at all– to remain inside another person’s body when unwelcome there.
          Therefore, getting an abortion does not deny another person their rights. Having your life sustained by sharing the insides of another person’s body is a generous gift from the owner of that other person’s body, not a right.

          RE: “When a woman becomes pregnant through her voluntary actions, her developing child isn’t “coercing” her by being alive, that’s daft.”

          Also true! (You’re doing really well tonight, on the facts. What you seem to have trouble with are the implications of those facts.) The fetus is not coercing the woman. But YOU are trying to coerce her (though the government) by trying to pass laws to ban abortion.

          RE: “She made her choice,…”

          Yes, right again! (Wow, you are doing SO well…) But then, when she learns that she is pregnant, she makes ANOTHER choice. And then another, and another, until her pregnancy ends one way or another way. Each time she thinks “gosh, maybe I’d be happier if I get this pregnancy aborted,” and chooses yes or no, she’s making another choice, in addition to the ones she has already made. Pregnancy is not only one choice; pregnancy is a SEQUENCE of choices.

          RE: “… and pregnancy is one of the natural outcomes of that choice.”

          Yes. And any natural pregnancy can be aborted, using medications or tools made from natural materials (materials found in nature) using manufacturing techniques which function according to the natural laws of nature (chemistry and physics). Termination of the pregnancy is a natural outcome of making THAT choice. The only pregnancies which cannot be aborted are SUPER-natural pregnancies, fathered by gods or demons or some other powerful supernatural entity. Naturally!

          RE: “Non-coercion isn’t a get out jail free card.”

          Women should not be put IN jail for having abortions. Health-care workers should not be put in jail for doing abortions. So no one needs, nor should need, any get-out-of-jail-free card in the first place. Putting someone in jail for doing something you do not like is not libertarian.

          1. The pregnancy may also may be “inconvenient” to the father, and he can use “natural” materials (e.g. arsenic) to terminate the mother. But we’d call that “murder”, wouldn’t we?

    2. The slaves, and the victims of the Holocaust, were not located inside another person’s body and unwelcome there. Therefore, they are entirely irrelevant to any discussion of abortion.

      1. There’s nothing irrelevant about the concept of unpersons. It is an evil idea.

        1. That’s the brashest example of question-begging I’ve seen in a while. When a fetus becomes a person is, whether you like it or not, a matter of good faith dispute, even if many advocating for each side’s opposing argument abandon good faith to make it. Being neither a pro-life nor pro-choice zealot, I find such posturing neither persuasive nor helpful. It’s thinly veiled ipse dixit .

          1. It’s not question-begging because Mr Toad and others are not arguing that question, they are implicitly accepting the personhood premise and defending abortion based on lack of consent or self-defense.

            1. It was DaveM who introduced (un)personhood. Why am I bound by what Mr. Toad does or doesn’t implicitly accept?

        2. Right you are! Fetuses are live human persons, that’s WHAT they are. Now you need to think about the implications of WHERE they are.

          1. Do you think that parents should be allowed to kick their 6 month old out of the house? You’re on your own kiddo! Here’s a to go bag.
            Property rights.

    3. Don’t the souls of aborted fetuses go straight to heaven?

  3. … 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.” So, 9th Month Abortion, is right out?

    1. How about 40th Trimester Abortions?

      Southpark had fun with that a while back.

      1. Where is a 40th trimester fetus located? WHERE the fetus is what matters. WHAT it is, is important too, but not the deciding-factor.

        If something, or someone, is located inside your body and unwelcome there, then you should be entitled to have it, or him, or her, killed, no matter what, or who, it, or he, or she, is, or may be. If ALL the human beings in the whole world were gathered together inside your body (somehow), then you should be entitled to holocaust them. That’s part of the meaning of the word “your” in the phrase “your body”: YOU should get to decide who and what gets to live inside it, and when, and how long. If God were located inside your body, then you should be entitled to kill God (and may God have mercy upon His own soul).

        1. Oops, I left out an “is”. Should have written “WHERE the fetus is, IS what matters.” My bad.

          The President said to the Ms.:
          “Your mouth is a nice place for jiizz,
          And whether it’s moral
          For you to give oral
          Depends on the meaning of ‘is’!”

          1. ‘Should be entitled’ , Don’t kill yourself with poor analogies. Or, do. You should be entitled, after all…

  4. Can’t wait for the time when we get to say abortion was the paramount social evil of the day and get to cancel everything that used to support it (or we just say did)….

    1. Hold on. What if Roberts is only keeping abortion legal under blackmail duress from his gay pimp, Obama, who’s in for a cut of Hillary’s child prostitution ring, where aborted fetuses are fed to the baby hookers soylent green style? Are the abortionists still the greatest evil? Or is it Hillary? It’s something to think about.

      1. Stranger things have happened…

        1. Lol. Do tell.

      2. The way things are going in Washington, you might actually have stumbled across a few facts in the process of your parody.

    2. It’s coming. Ironically, Margaret Sanger just got canceled suddenly – by Planned Parenthood! After years of glorification and even giving awards in her name, they’ve suddenly noticed she was a racist but no news yet on them making the connection between that and her desire to kill babies.

  5. Notwithstanding any Marks analysis, as Justice Kavanaugh noted in his separate opinion, “Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard. Ante, at 4–11 (ROBERTS, C. J., concurring in judgment); ante, at 14–20 (THOMAS, J., dissenting); ante, at 4 (ALITO, J., joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting); ante, at 15–18 (GORSUCH, J., dissenting).”

    1. But you can’t just ignore the Marks analysis. Justice Roberts could have expressed his views about the proper way to proceed in a speech or a law review article; interesting and important, but not a holding of the Court. Maybe the next time the issue is presented he’ll have five Justices on his side, but until then, the fact that 5 Justices have “rejected” the WWH analysis isn’t the law, and no reconsideration of earlier cases built on the WWH analysis is called for.

  6. Well if this was Roberts playing 4D chess (which I doubt) he did stack the deck for the Court to reconsider Casey because I imagine the circuit courts are doing to make a dogs dinner of June. I doubt that was his intended consequences but that is what you are going to get. The 9th and 2nd Circuit will come up with a more liberal meaning and that will conflict with at least the 5th and 4th. Perfect set up for cert probably late next year.

  7. I think Justice Robert’s opinion is controlling under Marks.

    However, ai don’t think it means what the 8th Circuit says it means.

    Whole Woman’s Health remains the law under the principles of stare decisis, and the fact that Roberts originally voted against it (or mentioned this in his June Medical opinion simply doesn’t matter to a lower federal court.

    However, because of the emphasis in Roberts’ opinion that like must be decided lile like, it is open to the 8th Circuit to identify if the case before them is (unlike June Medical) distinguishable from Whole Women’s Health. If it is, than it is arguable that this is not a case like Whole Woman’s Health, and hence Whole Woman’s Health does not control.

    However, June Medical makes clear that in order for Whole Woman’s Health to be distinguishable, the difference can’t be picayune or miniscule. It has to be substantial.

  8. “Dicta” is that part of the holding of the court you don’t like and the holding of the court is that part of the dicta you do like.

    Every abortion takes an innocent life. Stop whining when the courts make it a little bit harder to get away with murder.

  9. Help me out. I do not quite understand Roberts’ position that benefits must be (or even can be) ignored in determining whether a burden is undue.

    Indeed, if there are no associated benefits (or you refuse to consider benefits) aren’t all burdens undue. For example, if benefits must be ignored isn’t a requirement that abortions be performed by a licensed physician (rather than, say, a midwife or butcher) an undue burden?

    But perhaps “all” Roberts is really saying is that the balancing of benefits and burdens and thus a conclusion that a burden is undue or justifiable is a determination for (and, at least if not patently absurd, only for) the legislature. Thus any legislation regulating abortion that is not patently absurd (for example that abortions be performed by licensed physicians and, but for Whole Women’s Health, in his view by physicians with hospital admitting privileges) should be upheld without further examination by the courts. If so, isn’t all abortion regulation (other than blatant prohibition or patent absurdity) permissible?

    Presumably, however, even Roberts also would find legislative requirements that (at least to me) are patently absurd (for example that abortions be performed only at Johns Hopkins by Hopkins or Ivy League medical school physicians who are board certified gynecologists with at least 25 years of practice) to be undue burdens. And, again, without the need to consider associated benefits.

    Help me out here.

  10. Lilam
    I have to say, I’ve been pondering this myself.
    On the face of it, Roberts’ preferred line of analysis would seem to be LESS favorable to those enacting abortion restrictions than the “balancing” test; he would stop (and invalidate) once a “substantial burden” was identified, while the balancers at least go on to consider, and weigh in the balance, the benefits the State is purportedly advancing.
    But I think the answer is that in Roberts’ view, the need to show that a burden is “substantial” is a very high bar.
    In his concurring opinion, he goes through a number of the abortion cases, focusing on the kinds of restrictions that the Court has found to be NOT “substantial.”
    To oversimplify: I think the explanation is that the “balancers” would strike down relatively minor restrictions (because the State can’t show any benefits accruing from the restrictions), while the Roberts view will leave those restrictions in place (because the burdens are not “substantial” enough).
    Here’s an example: State X passes a law that requires abortion providers to close on M, W, and F from 230-430 PM. The stated reason is something obviously pretextual – traffic reduction, say. The balancers would overturn, but Roberts would not – it’s a burden, but not a “substantial” one.

    1. Your use of “substantial” is better than mine of “undue” since yours, unlike mine, does not imply balancing.

      That said, it seems to me that we are very much in agreement at least in doctrine if not in practice. For Roberts abortion restrictions win unless pretextual — clear legislative fraud.

      But on your M, W and F closing example, I would hope (albeit perhaps in vain) that even Roberts would find fraud (even if the restrictions are not substantial) or pretext, if you will, unless the closing restrictions were also applicable to all non-emergency surgical services. And, I still don’t know where he would come out on the Arkansas restrictions.

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