Solicitor General: "At least five Justices explicitly rejected the balancing test" that considers the "benefits and burdens" under Whole Woman's Health

The SG agrees with the Eighth Circuit and Judge Willett. The Supreme Court may have to decide the vitality of Whole Woman's Health sooner than I expected.

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Today, the Solicitor General filed an application for a stay in FDA v. American College of Obstetricians and Gynecologists. In this case, the U.S. District Court for the District of Maryland issued a nationwide injunction, blocking the FDA from enforcing "longstanding safety requirements for dispensing of Mifeprex, a drug indicated for termination of pregnancy during the first ten weeks." That court held that these regulations, in light of the CVOID-19 pandemic, "pose an undue burden on abortion access" under Casey. The Fourth Circuit denied a stay.

The application provides what I think is the Solicitor General's first interpretation of Whole Woman's Health following June Medical. The SG argues that the District Court was "mistaken" in its consideration of the "benefits and burdens of the safety requirements" under WWH.

Respondents' failure to show that the challenged requirements pose a substantial obstacle should end the judicial inquiry. Yet the district court alternatively concluded that even if respondents had not established a substantial obstacle, it could balance the benefits and burdens of the safety requirements under this Court's decision in Whole Woman's Health. App., infra, 62a. That was mistaken. In June Medical Services L. L. C. v. Russo, 140 S. Ct. 2103 (2020), every Justice of this Court stressed the importance of demonstrating that a law poses a substantial obstacle to abortion access in order to obtain relief. See id. at 2112, 2120, 2130 (plurality opinion); id. at 2135-2139 (Roberts, C.J., concurring in the judgment); id. at 2153-2154 (Alito, J., dissenting). And at least five Justices explicitly rejected the balancing test that the district court here adopted. See id. at 2135-2139 (Roberts, C.J., concurring in the judgment); id. at 2153- 2154 (Alito, J., dissenting); id. at 2182 (Kavanaugh, J., dissenting).

The SG expressly adopts the Chief Justices's reading of WWH--the discussion of "benefits" was dicta:

The district court nevertheless held that it could weigh the safety requirements' benefits and burdens based on its conclusion that June Medical did not "overrule[]" "Whole Woman's Health and its balancing test." App., infra, 37a. But Whole Woman's Health contains no holding adopting such a test. As the Chief Justice explained, "the discussion of benefits in Whole Woman's Health was not necessary to its holding," and that decision "explicitly stated that it was applying 'the standard, as described in Casey.' " June Medical, 140 S. Ct. at 2139 & n.3 (concurring in the judgment) (quoting Whole Woman's Health, 136 S. Ct. at 2309). The standard described in Casey, as the Chief Justice further observed, " 'squarely foreclosed' " any argument that a law not posing a substantial obstacle is "invalid" merely because it lacks " 'any health basis.' " Id. at 2138 (quoting Mazurek v. Armstrong, 520 U.S. 968, 973 (1997) (per curiam)).

The SG reads June Medical the same way that Judge Willett and the Eighth Circuit did read it.

Accordingly, June Medical confirms that the undue-burden standard adopted in Casey continues to "requir[e] a substantial obstacle before striking down an abortion regulation." Id. at 2139; see also Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *2 (8th Cir. Aug. 7, 2020) (per curiam) (vacating preliminary injunction of abortion regulations in light of June Medical because the district court had applied a "cost-benefit standard").3

But the SG punts on the Marks rule issue.

FN3: 3 The district court also concluded that the Chief Justice's opinion in June Medical rejecting the court's reading of Whole Woman's Health is not the narrowest one under Marks v. United States, 430 U.S. 188 (1977), and therefore is not controlling. But that is beside the point here, because the four dissenting Justices in June Medical agreed with the Chief Justice on the substantial-obstacle requirement, 140 S. Ct. at 2154 (Alito, J.), and thus the district court's contrary view is likely to be reversed by this Court if affirmed by the Fourth Circuit.

I had expected Texas's petition for rehearing en banc to tee up the first major challenge to WWH. But the Court may resolve this question on the shadow docket. Indeed, the SG relies on the Chief's opinions' in June Medical and South Bay:

That sort of judicial management of public-health policy is inappropriate. The "Constitution principally entrusts 'the safety and the health of the people' " to officials who must " 'act in areas fraught with medical and scientific uncertainties,' " and who generally "should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health." South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-1614 (2020) (Roberts, C.J., concurring in denial of application for injunctive relief) (brackets and citations omitted). And that is especially true when the second-guessing amounts to a conclusion that a "woman's liberty interest" outweighs "the State's interests" in protecting her "health" -- a comparison of "imponderable values" that is not "a job for the courts." June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring in the judgment).

Stay tuned.