A Wolf in Sheep’s Clothing: June Medical and the Uncertain Future of Abortion Rights

Blog Post | 110 KY. L. J. ONLINE | August 18, 2021

A Wolf in Sheep’s Clothing: June Medical and the Uncertain Future of Abortion Rights

By: April Ford, Senior Staff Editor Vol. 110

In their most recent consideration of abortion rights, the Supreme Court’s decision in June Medical Services L.L.C. v. Russo seemed to reaffirm the Court’s protective standard for women established by Roe v. Wade and its progeny. June Medical invalidated a Louisiana statute requiring abortion providers to retain admitting privileges at local hospitals.[1] However, the 4-1-4 decision is a wolf in sheep’s clothing, delivering a clandestine blow to the Court’s protective standard for abortion rights. The splintered opinions risk a litany of ramifications that could denigrate Roe v. Wade[2] and abortion access.[3] Following June Medical, lower courts have struggled with determining what controlling rule remains to analyze restrictions on abortion services, arriving at different conclusions.

The Sixth Circuit Court of Appeals attempted to derive the Supreme Court’s standard from June Medical in EMW Women’s Surgical Center, P.S.C. v. Friedlander.[4] The Sixth Circuit panel was divided on whether to apply the burden-benefit balancing test from Whole Woman’s Health v. Hellerstedt or Chief Justice Roberts’ deferential test in his June Medical concurrence.[5] Both the majority and dissent undertook an extensive “Marks analysis” to determine the controlling standard.[6]

The “vexing task” that is a Marks analysis requires lower courts to conclude that the holding of a Supreme Court decision with no majority is the position of the justice concurring in judgment on the narrowest grounds.[7] The Sixth Circuit majority held that Chief Justice Roberts’ June Medical concurrence in its entirety was the controlling precedent, meaning regulatory abortion statutes would be valid if reasonably related to a legitimate state interest and without undue burden on women seeking abortion.[8] However, the majority’s application of this test to uphold transport and transfer requirements for abortion facilities[9] seems to contravene even the Chief Justice’s concurrence, which invalidated a less restrictive abortion statute.[10]

While the dissent’s Marks analysis comes to the same conclusion—that Chief Justice Roberts’ June Medical concurrence controls—"the resulting standard is much different.[11] The dissent contends that under Marks, only the narrowest holding and reasoning from a plurality opinion controls.[12] Thus, the rule from Whole Women’s Health Services is not usurped by dicta in Chief Justice Roberts’ June Medical concurrence that rejected the benefit-burden balancing test.[13]

Courts and scholars alike come to different conclusions on where abortion precedent currently stands. Like the Sixth Circuit dissent, Professor David Cohen contends that as the narrowest opinion supporting the judgment, Chief Justice Roberts’ June Medical concurrence is binding on lower courts.[14] However, Cohen narrows his conclusion. He asserts that only the holding of the Chief Justice’s concurrence, that stare decisis renders admitting privilege requirements unconstitutional, is binding.[15] While the opinion’s dicta—"suggesting that a more deferential standard for abortion regulations should be adopted—is not binding on lower courts.[16]

The Fifth Circuit Court of Appeals in Whole Woman’s Health v. Paxton came to the same conclusion as the Sixth Circuit dissent following the confusion of June Medical.[17] The Fifth Circuit found that June Medical did not produce a new binding rule, and the balancing test from Whole Woman’s Health Services v. Hellerstedt continues to control the undue burden analysis in abortion regulation cases.[18] The Fifth Circuit’s opinion echoes Cohen’s conclusion that the June Medical decision is extremely narrow—only reaffirming the unconstitutionality of admitting privilege requirements without promulgating a new rule.[19]

Although some courts construe June Medical narrowly, the decision could still have vast consequences for abortion protections. Professor Leah Litman contends that although the Chief Justice invalidated a restrictive abortion law on stare decisis principles, he signaled the possibility of upholding restrictions that the court has not previously invalidated and advanced a significantly weaker standard of analysis for such future restrictions.[20] Overall, the constitutional framework for abortion rights is in tumult.

With June Medical on the books and recent changes to the Supreme Court, protections for abortion access hang perilously in the balance. With conservative Justice Barrett’s addition to the Court succeeding Justice Ginsburg (who was part of the plurality in June Medical), future cases with abortion access at issue could result in fewer protections for abortion rights and less demanding standards on restrictive statutes adopted by state legislatures. Further, Justice Barrett could provide the additional vote needed for a majority in order to make such deferential standards easily applicable, thereby binding precedent for lower courts and eliminating the need for a Marks analysis or any balancing in abortion restriction cases. This hypothetical blow to abortion rights could soon become a reality.

The Supreme Court has agreed to hear a case next term regarding a Mississippi law that seeks to ban most abortions after 15 weeks.[21] With the Court’s new conservative majority and the Chief Justice’s willingness to curtail abortion rights as seen in June Medical, the upcoming case poses a great threat to the Court’s longstanding protective standard for women.[22]

[1] June Medical Services L.L.C. v. Russo, 140 S.Ct. 2103, 2112 – 13 (2020).

[2] Roe v. Wade, 410 U.S. 113 (1973).

[3] June Medical, 140 S.Ct. at 2133 – 2182.

[4] EMW Women’s Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418, 431 (6th Cir. 2020).

[5] Id. at 432 – 433.

[6] Id. at 431 – 437.

[7] Id. at 431.

[8] Id. at 437.

[9] Id. at 446.

[10] June Medical Services L.L.C. v. Russo, 140 S.Ct. 2103, 2142 (2020) (Roberts, J., concurring).

[11] EMW Women’s Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418, 458 (6th Cir. 2020) (Clay, J., dissenting).

[12] Id. at 456.

[13] Id. at 454.

[14] David S. Cohen, Why Whole Woman’s Health’s Balancing Test Still Applies After June Medical, Harv. L. & Pol’y Rev., https://harvardlpr.com/2020/08/24/why-whole-womans-healths-balancing-test-still-applies-after-june-medical/ (last visited Feb. 2, 2021).

[15] Id.

[16] Id.

[17] Whole Woman’s Health v. Paxton, 978 F.3d 896, 905 (5th Cir. 2020).

[18] Id.

[19] Id.; David S. Cohen, Why Whole Woman’s Health’s Balancing Test Still Applies After June Medical, Harv. L. & Pol’y Rev., https://harvardlpr.com/2020/08/24/why-whole-womans-healths-balancing-test-still-applies-after-june-medical/ (last visited Feb. 2, 2021).

[20] Leah Litman, June Medical as the New Casey, Take Care (Jun. 29, 2020), https://takecareblog.com/blog/june-medical-as-the-new-casey.

[21] Adam Liptak, Supreme Court to Hear Abortion Case Challenging Roe v. Wade, N.Y. Times, May 17, 2021.

[22] Id.