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In 1992, the Supreme Court decided the seminal abortion rights case, Planned Parenthood of Southeastern Pennsylvania v. Casey. The Court’s plurality opinion in Casey reaffirmed the essential holding in Roe. However, the Court explained that a State may express its interest in the life of the fetus through the imposition of certain regulations. Most notably, the Court articulated the undue burden standard: if a state regulation has the purpose or effect of placing a substantial obstacle in a woman’s path to obtain an abortion of a non-viable fetus, the regulation is unconstitutional.
The next time this standard was meaningfully challenged was in Whole Woman’s Health, where the Texas legislation, HB2, would effectively shut down all but seven abortion providers for the entire state of Texas. The Court held that the ramifications of this requirement would put a substantial obstacle in the way of women seeking abortions, and would thus constitute as an undue burden. The burdens that would be experienced by women were weighed against the little benefits the provisions actually provided to women, and therefore, the regulation was unconstitutional.
Despite this ruling, in 2019 the Supreme Court granted cert in June Medical Services v. Russo. The regulations at issue, Act 620, in June Medical were almost identical challenges to those of HB2. The similarities of the regulations left pro-choice advocates confused and concerned. With the then 5-4 conservative majority of the Court, including those who dissented in Whole Woman’s Health, the benefit and burden analysis set forth only three years previously appeared to be in jeopardy.
Ultimately, in a 5-4 decision, the Court held that Act 620 was unconstitutional, and it did not satisfy the undue burden test for the same reasons articulated in Whole Woman’s Health. The surprising swing vote was in fact, Chief Justice Roberts who penned a concurring opinion agreeing with the holding.
However, what was first heralded as a win for pro-choice advocates, was fleeting as careful examination of the effects of Chief Justice Roberts’ concurrence began. In this Commentary, I will discuss what Chief Justice Roberts’ concurrence means for the undue burden test, the concept of stare decisis and its impact upon the validity of the Supreme Court as an institution. Lastly, I will discuss how this concurrence is currently, and will only continue, to create confusion within the circuit and lower courts, further jeopardizing abortion rights in the US.
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