In the Supreme Court’s recent ruling in June Medical Services v. Russo, five justices struck down an abortion restriction that would have made the procedure almost impossible to obtain in Louisiana. The law—which was, as Justice Stephen Breyer put it, “almost word-for-word identical” to a law struck down by the court in a 2016 decision, Whole Woman’s Health v. Hellerstedt—required abortion providers to obtain admitting privileges at a hospital within 30 miles. In its 5-4 decision, the court held that the Louisiana law must also be struck down because the requirement, which would have closed all but one clinic in the state, was a significant obstacle to people seeking abortions.
Breyer, writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, found that the Louisiana law provided not a single health benefit to patients and inflicted only burdens by forcing clinics to close. As he held in Whole Woman’s Health, a restriction on abortion that accomplished none of its purported benefits—improving patient safety, for example—may not stand if it imposed even a modest burden.
Chief Justice John Roberts, in a separate opinion, concurred that the law was unconstitutional but did so under the principle of stare decisis (Latin for “let the decision stand”). Because the court, applying the “undue burden” standard established in Planned Parenthood v. Casey, ruled a nearly identical restriction unconstitutional in 2016, Roberts argued that precedent mandated the same outcome here. However, he did not join Breyer’s opinion because he believes Casey requires a different test. Rather than balance the benefits and burdens of the Louisiana law, as Breyer did in his opinion, Roberts focused on the law’s burdens: Restrictions that create substantial obstacles to abortion access and are not reasonably related to a legitimate state purpose are unconstitutional.
His opinion suggests that the next abortion case the court hears will apply the chief justice’s version of Whole Woman’s Health—that is, assessing the impact of the restriction at issue and not evaluating whether the law offers any health benefit. As commentators have noted, that shift matters. It could allow states to adopt laws in the name of health but without any measurable value for patients. Under a narrow reading of Roberts’s concurrence, abortion restrictions are constitutional as long as they do not decimate abortion services in the state.
So no one would argue that Roberts has become a fan of abortion rights. But the way in which he applied his refashioned test for constitutionality deserves more attention. At the center of June Medical Services, like Whole Woman’s Health, is the court’s discussion of what the landscape of abortion care would look like if the law had taken effect: After all but one clinic closes because providers cannot gain admitting privileges, how many miles will patients have to travel to get an abortion? For all his allegiance to precedent and his ambivalence about assessing the law’s health benefits, Roberts’s concurrence takes up the law’s operation in the real world. He cited the findings of the trial court that “the Louisiana law would result in ‘longer waiting times for appointments, increased crowding and increased associated health risk.’” He reiterated that “Louisiana women already ‘have difficulty affording or arranging for transportation and childcare on the days of their clinic visits’ and that ‘[i]ncreased travel distance’ would exacerbate this difficulty.” And he emphasized the scale of that distance—over 300 miles for some Louisiana women.
Roberts could have easily omitted these references to the district court’s record, writing only of precedent and explaining a scaled-back constitutional test. So if there is anything to celebrate about his opinion, it is his recognition of the evidence that connects clinic closures to adverse health consequences for pregnant people.
When people do not have access to local abortion services, they will travel long distances, self-induce terminations, or carry pregnancies to term. Each option has short- and long-term costs. A dissent written by Justice Samuel Alito points to any number of reasons that the effects of inaccessible abortion are not the state law’s fault. But Roberts acknowledged that when clinics close and a law requires those closures, there is a constitutional question at stake.
Public health research has made this case. The research on which the trial court relied was generated, in part, by scholars and advocates. Their work provides empirical evidence that state laws shuttering clinics have negative consequences for the well-being of individuals and of populations at large. Even if one does not believe that Roberts adopted a public health perspective, such an approach has promise. Both Breyer’s and Roberts’s opinions read like simple math problems—counting clinics, providers, and miles across the state. But the restrictions are pernicious because they compound the stress on many people’s already scarce resources for health care, child care, or transportation.
Although Breyer acknowledged that the burdens of the Louisiana law “would fall disproportionately on poor women,” the court’s language suggests low-income women are a minority rather than the majority of people who seek abortion. The reality, however, is different. About half of abortion patients live below the federal poverty line. People seek abortion to alleviate financial or economic stress.
Delayed or denied abortion deepens poverty and results in physical and mental injury. When striking down such restrictions, the court could better express how abortion is crucial to improving a person’s health and livelihood. Seen in this way, abortion is not only a constitutional right; it is a matter of personal and public health. That kind of reasoning could thwart laws that seek to eviscerate abortion rights under the guise of health concerns. Or it could encourage laws with exceptions for people who bear the brunt of the law’s effects, though this is admittedly a partial solution. That either of these approaches seems presently out of reach (consider that the Court ignored how cost-sharing for contraceptives promotes preventative care and reduces health disparities in Little Sisters of the Poor v. Pennsylvania) speaks to how far we have to go.