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.


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.

NEXT: Cato Unbound Symposium on the 50th Anniversary of "Exit, Voice, and Loyalty" Continues

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So does that mean that a lethal drug could be offered for abortions, and that nobody could weigh the negative benefits of that?

    1. You haven't heard of the Constitution granted right to get an abortion, no matter what, how, when or where? No matter the cost or negative benefits?

      You can limit freedom of speech, ban people from being able to practice religion in their own church, and institute a series of rules that in combination make it to obtain a fire arm.

      But try to ask that a dangerous drug for abortion actually be prescribed and administered by a doctor? Too much of an imposition.

      1. Quit whining.

        1. Support science Reverend, not dogmatic obedience. Support the FDA, not abortion zealotry. Support free and open thought. Don't seek to blindly shut down those who you cannot agree with.

          1. To them, abortion IS a religion.

          2. Well, the science says that non-surgical abortions are among the safest procedures (for the patients) in medicine.

    2. Lethal to the baby is kinda the point, isnt it?

      1. Yeah, but killing the mother is not the point.

  2. The clingers in the Justice Department and at the Supreme Court may need to hurry if they wish to advance their anti-abortion crusade before the Court is enlarged.

  3. Roe established interest of the State at the point of viability. States, therefore, have a right ever since Roe to regulate and have input at and after the time of viability. The legal standard has been Casey, is there a substantial burden. Those persons seeking abortions at any time for any reason or no reason at all up to delivery ignore the legal standards. Whole Women's was an attempt by less than a full majority of the court to shift the burden to the State to prove a benefit for their actions before even considering if the state action created a substantial burden. Under the attempted legal standard and burden-shifting, a purely administrative rule by the state regarding the format of a form could be challenged to establish the benefit of the format change in the form even if there was no substantial burden to the right and ability to obtain an abortion. In the end, there was more method to the madness of the Chief Justice.

    1. "Those persons seeking abortions at any time for any reason or no reason at all up to delivery ignore the legal standards."

      Literally no one is seeking that.

  4. This could be 20 gazillion dimensional chess at its finest. As I understand it, Chief Justice Roberts got the Court’s liberals to agree to an opinion in South Bay Pentacostal Church v. Newsome that it is primarily the role of state officials to decide questions of public health and the courts will not lightly interfere, and courts will not lightly presume ststes are prejudiced against religious groups who want to congregate in making these decisions.

    That case could potentially be used to shed light on the question of whether courts should second-guess state public health decisions in abortion contexts, and whether they will lightly assume that states are prejudiced against women who want abortions in making these decisions.

    1. "whether they will lightly assume that states are prejudiced against women who want abortions in making these decisions"

      Most anti-abortion yahoos can't resist declaring their motivation to restrain women because Jesus (Ricky Bobby's Jesus in particular).

      1. Let’s be blunt. The Supreme Court has recently held as clearly established law that extraterritorial aliens have the same constitutional status as fetuses, no constitutional rights whatsoever, no more than Gloria Steinem’s appendix.

        And yet you not only object to dismembering extraterritorial aliens alive in order to obtain their organs - you would let American citizens die rather than do this when there are perfectly good organs readily available and the procedure could be done straightforwardly - you object to much more trivial matters like basing immigration on “religion” (as if religion in any constitutionally meaningful sense could exist without personhood).

        Why do you object to these things? Because Jesus? Because you’re a clinger who just enjoys denying Americans the best health care they can get, including access to readily available and much needed transplant organs, just because you feel persnickety? Because “morality”? Why?

        1. Where is an extraterrestrial alien located? And where is a fetus located?

        2. I'm gonna guess it's because like most people that are pro-choice the Reverend don't think non-viable fetuses are people or alive or some combination of the two.

          The abortion discussion is so dumb because neither side acknowledges that this is the crux of the issue and just assumes that the other side is terrible because they don't have the same view on this point. Whereas if you understand that the other side legitimately disagrees with your view on this point, the ensuing argument on either side is completely uncontroversial. No, we shouldn't murder people, and similarly, yes, Gloria Steinem should be able to get an appendectomy.

  5. The idea that Roberts undid WWH makes no sense. If he overruled the WWH standard and went back to Casey then how did he come to the opposite conclusion.

    He was very clear

    I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The
    question today however is not whether Whole Woman’s
    Health was right or wrong, but whether to adhere to it in
    deciding the present case...The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

    It was purely stare decisis. To now say it wasn't just stare decisis but a hidden overruling of WWH is absurd. He was merely saying he hasn't changed his mind but he isn't going to do the whole perpetual dissent thing that so often happens in SCOTUS opinions.

    1. The difference here is that unlike June Medical, where the law involved was essentially identical to that in Whole Womens Health, the law under consideration here in materially different from the one in Whole Women’s Health. It is therefore potentially open to the court to distinguish this case in a way that could not have been done in June Medical. It is open to the court to say that this is not really a like case.

    2. Right.

      Just as a legal strategy matter, this is the wrong case to make this argument in. It is clear that Roberts isn't going to overturn Whole Women's Health. He said it!

      What he might do is uphold abortion restrictions in a different case. So as a matter of strategy, these guys should figure out how to bring that case.

      1. This case is FDA v. American College of Obstretricians and Gynecologists, in the 4th Circuit.

        Different case from Whole Woman’s Health. I agree that the 5th Circuit’s attempts to interpret Robert’s opinion in June Medical as saying Whole Womens’ Health is no longer the law of the case the law of the case for Whole Womens’ Health itself are not likely to survive Supreme Court review.

Please to post comments