Earlier this summer, reproductive rights groups breathed a collective sigh of relief when Chief Justice John Roberts sided with the Supreme Court’s liberal justices to find that a Louisiana law that would have left the state with a single abortion clinic was unconstitutional.
But it wasn’t all good news. Roberts, who wrote a separate concurring opinion, left the door open for states to enact other onerous anti-abortion laws that could harm patients. And it’s already happening: On Friday, the U.S. Court of Appeals for the 8th Circuit ruled to allow four previously blocked abortion restrictions to go into effect in Arkansas, citing Roberts’ opinion in the Louisiana case.
Other states could be next. While the decision in the Louisiana case looked on its face like a victory, Robert’s opinion could make it easier in effect for anti-abortion laws to survive court challenges. And people who are dealing with unwanted pregnancies will be the ones to suffer the consequences.
“When the government takes an active role in trying to prevent people from getting abortions, it has serious consequences for their lives ― for their physical health, for their economic well being and for their life trajectory,” said Diana Greene Foster, a researcher who studies what happens to women who are unable to get an abortion they want.
In June Medical Services v. Russo, Roberts wrote that the Louisiana law had to be struck down because it was identical to a Texas statute the court had struck down four years earlier. Under precedent, it could not stand. However, he roundly rejected the framework used by his liberal colleagues to determine the constitutionality of abortion laws.
Instead of having to weigh the benefits of a law against the burden on abortion access ― as the Supreme Court said in the 2016 case Whole Woman’s Health v. Hellerstedt ― courts need only consider whether the law presents a “substantial obstacle” to those seeking abortions, Roberts wrote.
At the time of the June 29 decision, some legal experts warned that the chief justice’s opinion weakened protections for abortion, as it loosened the standard used to judge laws that restrict the procedure. Now, their fears are coming true.
An Evolving Test For Abortion Laws
The Supreme Court first recognized a constitutional right to abortion in the 1973 decision Roe v. Wade. Ever since, lawmakers have chipped away at abortion access by passing laws making it harder for patients to obtain care and for physicians to provide it.
In 1992, the Supreme Court ruled that states can regulate abortion as long as they don’t impose an “undue burden” on those seeking the procedure. An undue burden was defined as a state regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion,” the court explained in Planned Parenthood v. Casey.
But exactly what constituted a “substantial obstacle” was left up to the lower courts to determine; the justices offered little guidance on how the legal standard should be applied.
“You would see one circuit upholding a law and other circuits striking it down,” said Heather Shumaker, director of state abortion access at the National Women’s Law Center. “It created a lot of chaos in the courts.”
That ambiguity was finally put to rest in 2016.
In Whole Woman’s Health v. Hellerstedt, the Supreme Court clarified that the undue burden standard requires courts to balance the law’s asserted benefits against the burdens it imposes on abortion access. If the burdens outweigh the benefits, the law must be found unconstitutional. The court rejected a Texas law mandating that abortion providers have admitting privileges at local hospitals ― a medically unnecessary and often impossible-to-meet requirement ― as it provided scant benefits to patients but posed a significant obstacle. Roberts voted in dissent.
At the time, abortion rights groups celebrated the ruling as a significant victory. The new balancing test would bring additional scrutiny to laws that claimed to protect women’s health but in practice yielded few if any benefits. If a law did not advance any legitimate benefits for patients but did make it that much harder to get an abortion, it would likely fail the test.
Now, in the wake of June Medical, the balancing test is effectively moot. Under Roberts’ opinion, courts can return to the original Casey framework, only looking to determine if a law places a substantial obstacle in the path of abortion access.
That standard is far less protective of abortion rights than the balancing test, Shumaker said.
“It gives the green light to states to pass laws and say ‘this is for women’s health,’ but not really have to prove that there’s any benefit whatsoever, while adding a whole host of burdens,” she said. “Many of us were worried that Roberts’ concurrence was going to be a tool to dismantle abortion rights and abortion access more broadly, and the Eighth Circuit decision is really illustrative of that.”
Laws with specious justifications won’t get as hard a look in the courts, added Mary Ziegler, a professor at Florida State University and author of ”Abortion and the Law in America: Roe v. Wade to the Present.”
“Before, you could have a law that was not incredibly burdensome but it had no valid purpose, and the court might strike it down saying this law is creating some burdens and it isn’t benefiting anybody,” Ziegler said. “That’s out the window now.”
Rolling Back Abortion Care
The consequences of Roberts’ opinion are already being felt in Arkansas, one of the states in which it’s most difficult to obtain an abortion.
In 2017, Arkansas passed four abortion restrictions that were challenged in court by the Center for Reproductive Rights, the American Civil Liberties Union and the ACLU of Arkansas.
The first law bans the most common method of second-trimester abortions. The second requires patients to notify their sexual partner or other family members of their abortion beforehand, interfering with patient privacy. The third requires clinics to report a patient’s abortion to local police if the patient is under 17 and preserve all embryonic or fetal tissue from her abortion as potential “evidence.” The fourth compels doctors to request all records involving the patient’s past pregnancies before performing the procedure, a time-intensive process that could delay care for weeks and may violate the patient’s right to confidentiality.
The four restrictions were preliminarily blocked in 2017 by a federal district court, which applied the balancing test expressed in Whole Woman’s Health.
On Friday, the 8th Circuit reversed the district court’s ruling in light of Roberts’ opinion in June Medical. “According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the law poses ‘a substantial obstacle’ or ‘substantial burden,’ not whether benefits outweighed burdens,” the appeals court wrote, sending the case back to the lower court for further consideration.
The 8th Circuit ruling does not take effect until Aug. 28, which means the abortion restrictions are still blocked until then.
Arkansas already has the fourth-highest number of abortion laws in the U.S. According to the Guttmacher Institute, the state enacted 57 restrictions between 1973 to 2019. Only two abortion clinics are currently operating in the state, and both are located in Little Rock, the capital.
“These four restrictions in Arkansas, should they take effect, would further limit, delay and stigmatize access to abortion care, in a state with already limited access to services,” said Elizabeth Nash, interim associate director of state issues at Guttmacher. “This order shows just how much more work needs to be done to shore up abortion rights.”