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Since the Supreme Court decided June Medical Services v. Russo last year, commentators across the aisle have spilled much ink about the role of stare decisis in our constitutional system. And rightfully so: in almost every major abortion case since Roe v. Wade, considerations of stare decisis have loomed large at the Supreme Court. In fact, since a now-famous exchange between Senator Orrin Hatch and then-nominee John Roberts in 2005, Roe v. Wade and Planned Parenthood v. Casey have been unable to shake the label of “super-precedent.” June Medical is no different. There, the Supreme Court applied its 2016 decision in Whole Women’s Health v. Hellerstedt to strike down a Louisiana law requiring abortion doctors to have admitting privileges at nearby hospitals.
Concurring only in the judgment, Chief Justice John Roberts provided the key vote for a divided 4-1-4 Court to strike down the law. Even though he “continue[s] to believe that [Hellerstedt] was wrongly decided,” the Chief Justice considered it binding because “stare decisis requires us, absent special circumstances, to treat like cases alike.” Ironically, in applying stare decisis—a doctrine aimed at achieving consistency and predictability in the law—the Chief Justice may have created more uncertainty than he avoided.
To understand how, crack open your dusty constitutional law textbook to Planned Parenthood v. Casey. In Casey, a 5-4 majority preserved Roe v. Wade’s essential holdings and articulated a new standard: regulations that imposed an undue burden—defined as a substantial obstacle in the path of a woman seeking an abortion before fetal viability—were unconstitutional.
In 2016, Hellerstedt updated the Casey test, requiring courts to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. Although it purported to apply Casey, Hellerstedt created a test that is actually more difficult for challenged abortion regulations to pass: where Casey assumed that a state’s proffered interest was legitimate and focused only on a challenged law’s effect on abortion access, Hellerstedt added the requirement that the state prove its interest is legitimate by defending the law’s benefits (a “fit” requirement that is applied more or less rigorously from circuit to circuit).
The plurality opinion in June Medical, following the example set forth in Hellerstedt, balanced the benefits of admitting privileges and their burdens. Relying exclusively on the factual record created by the presiding district court, the plurality determined that the law would “drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could.” In his opinion, the Chief Justice rejected the idea of “a grand ‘balancing test’” as “an ‘unanalyzed exercise of judicial will,’” and instead considered only whether the law presented a substantial obstacle to abortion access. And because the court had decided just three years prior that a similar admitting privileges law provided a substantial obstacle, the Chief Justice Roberts concurred only in the result.
What, then, did June Medical add to abortion jurisprudence? Answering that question requires determining which opinion controls when no opinion commands majority support, a task that the Sixth Circuit has aptly described as “vexing.” The Supreme Court provides instruction for circuit courts facing such cases in Marks v. United States: “[T]he holding of the Court may be viewed as that position taken by those [m]embers who concurred in the judgments on the narrowest grounds.”
In the wake of yet another controversial abortion case, circuit courts are left to answer which opinion was decided on the narrowest grounds. Marshalling a considerable amount of circuit and Supreme Court precedent, the Sixth Circuit in EMW Women’s Surgical Center, P.S.C. v. Friedlander provides the following test:
In a fractured decision where two opinions concur in the judgment, an opinion will be the narrowest under Marks if the instances in which it would reach the same result in future cases form “a logical subset” of the instances in which the other opinion would reach the same result. This is so because in that subset of cases, a majority of the Court which issued the fractured decision would necessarily agree with the result.
. . .
Conversely, when a fractured decision strikes down a law as unconstitutional, the narrowest opinion is the one whose rationale would invalidate the fewest laws going forward.
If the Chief Justice’s opinion is to be considered controlling, it must (1) be “a logical subset” of the plurality and (2) strike down the smallest number of laws moving forward. While the Sixth and Eighth Circuits have concluded that the Roberts concurrence is controlling, the Fifth Circuit has applied the plurality. The Fifth Circuit’s analysis focuses on the “logical subset” requirement, while the Sixth Circuit considers the number of laws that would be struck down by each.
The panel in the Fifth Circuit’s Whole Women’s Health v. Paxton held that although “the plurality and concurrence shared an overall conclusion . . . they disagreed on how to frame and apply [Casey’s] undue burden test that led to that determination. Specifically, they disputed whether the test requires a comparative analysis or concerns only a law’s burdens without regard to its asserted benefits.” Because of this underlying tension, the panel concluded that the Chief’s opinion could not be considered a logical subset of the plurality’s opinion and, therefore, does not control.
Judge Don Willett disagreed: “[T]he tests have a common denominator—substantial obstacle—and the Chief Justice’s agreement with the plurality’s substantial-obstacle analysis is the ‘narrowest position supporting the judgment.’” There is time yet for the dissenting view to prevail: the Fifth Circuit recently vacated the panel decision for rehearing en banc.
If Judge Willett’s analysis is correct, the Chief’s opinion controls only if it also results in the fewest laws being struck down. Per the panel in EMW Women’s Surgical Center, the opinion does meet this standard. Because the concurrence would only strike down a law that (1) is not reasonably related to a legitimate purpose or (2) nevertheless imposes a substantial obstacle, the plurality would also strike down a law where (3) “‘the balance’ between the law’s benefits and its burdens [might] tip against the statute’s constitutionality.” Therefore, the plurality opinion has the potential to strike down more laws than the Roberts concurrence.
While the en banc Fifth Circuit may soon undo the current circuit split, the prospect of a uniform abortion jurisprudence seems as unlikely as ever, and our attention will likely be directed again to the Supreme Court. In the pursuit of consistency and clarity in the abortion debate, the Court instead did what it has done so many times before: set the stage for another high-profile abortion controversy in the years to come.