The constitutionality of abortion restrictions has long been debated by American courts. The Supreme Court first found a constitutional right to abortion in the 1973 case of Roe v. Wade (1973), holding that the Fourteenth Amendment’s right to privacy also applied to a pregnant person’s decision to access abortion services. According to the Court, this right to privacy in matters concerning abortion could not be overridden by the State. However, this right is not absolute, and the Court has repeatedly upheld various restrictions on abortion access in the nearly fifty years following the Roe decision.
These restrictions are typically justified by a State’s “legitimate interest” in protecting the health of pregnant people, as well as the potential life of the unborn fetus. The most prominent example of the Court upholding abortion restrictions came approximately twenty years after the Roe decision, in the 1992 case of Planned Parenthood v. Casey (1992). In Casey, the Court reaffirmed the constitutional right to abortion, while clarifying the extent to which states could regulate the procedure. According to the Casey Court, reasonable regulations restricting abortion access are generally constitutional, so long as the regulations can pass muster under the undue burden standard. For a regulation to be upheld under this standard, it must not place a substantial obstacle in the path of a person seeking an abortion before the fetus reaches the point of viability. In the Casey decision, this undue burden standard was used to strike down a regulation that required a woman to notify her husband before receiving an abortion, but was simultaneously used to uphold various other regulations, including a mandatory 24-hour waiting period and a requirement that a minor seeking an abortion receive parental consent (or receive court approval through a judicial bypass process). This undue burden standard has subsequently been used by courts at all levels of the judicial system to evaluate the constitutionality of abortion restrictions.
The most recent ruling on abortion restrictions came in June 2020, when the Supreme Court issued its’ opinion in the case of June Medical Services, LLC v. Russo (2020). In June Medical, the Court overturned the Fifth Circuit’s ruling that a Texas law that required abortion providers to have hospital admitting privileges did not place an undue burden on people seeking abortions, holding instead that the law was a violation of prior Supreme Court precedent. However, the divided Court failed to agree on a single standard for lower courts to apply to future abortion restrictions. The plurality argued that a balancing test, similar to the one advanced in the Court’s 2016 holding in Whole Woman’s Health v. Hellerstedt (2016), should be applied to these restrictions, with the benefits of the laws being weighed against the potential burdens. Contrastingly, the Chief Justice, in his concurring opinion, advanced a standard that provided greater discretion to state legislatures. These contradicting standards have ultimately led to a single question: what June Medical standard should courts apply to state-level abortion restrictions?
The Circuit Courts of Appeal have split over what standard discussed in the June Medical decision controls. In particular, the Eighth and Fifth Circuits have reached opposite conclusions, with the Eighth Circuit siding with the Chief Justice’s standard and the Fifth Circuit siding with the plurality’s standard.
The Eighth Circuit
Shortly following the June Medical decision, the Eighth Circuit applied the standard discussed in Chief Justice Robert’s concurrence to vacate a lower court injunction against multiple state level abortion restrictions. In the case of Hopkins v. Jegley (2020), the Eighth Circuit held that the Chief Justice’s opinion, being necessary for the Court to have reached its 5-4 decision that the Texas admitting privileges law was unconstitutional, was controlling and therefore carried precedential weight. According to the Eighth Circuit, the Chief Justice’s standard – that like cases should be treated alike, and that discretion should be granted to state legislatures in areas involving “medical uncertainty” – controlled in the Hopkinscase. Under this standard, the Eighth Circuit held that the preliminary injunction against the Arkansas abortion laws should be vacated, and thus remanded the case to the lower court for reconsideration under the Chief Justice’s proposed standard of review.
The Fifth Circuit
Recently, the Fifth Circuit reached the opposite conclusion when it chose to not apply the Chief Justice’s standard and subsequently overturned a Texas law that required individuals seeking an abortion in the second trimester to undergo an additional medical procedure prior to the abortion procedure itself. In the case of Whole Woman’s Health v. Paxton (2020), the Fifth Circuit held that it was the standard discussed in the plurality’s opinion – that the benefits of a law restricting abortion should be weighed against the potential burdens that the law may place on the access to abortion – that controlled; not the Chief Justice’s standard.According to the Fifth Circuit, this standard was first adopted by the Supreme Court in the Hellerstedt decision, and the standard was not overturned by the recent June Medical decision. As such, the Fifth Circuit ruled in favor of the abortion clinic and overturned the Texas law.
The future of this issue remains uncertain. On May 17, 2021, the Supreme Court granted certiorari in the case of Dobbs v. Jackson Women’s Health Organization for the upcoming October term. The Dobbs case is poised to present the Court with the exact question discussed in this split; what standard from the June Medical decision should be applied to state-level abortion restrictions? Given the recent high-profile additions of Justices Brett Kavanaugh and Amy Coney Barrett to the Court, as well as the subsequent shift in ideology toward a conservative-leaning majority, the potential outcome of the Dobbs case is currently unclear. An oral argument date has yet to be set.
For further reading, see: Undue Burdens in Texas by Jennifer S. Hendricks and In Abortion Litigation, It’s the Facts that Matter by Caitlin E. Borgmann.