After June Medical ruling, meaning of Hellerstedt legal standard remains open question

by Thomas M. Messner, J.D.

The Supreme Court’s ruling today in the June Medical case does not answer the question whether the free-form balancing test required by the 2016 Hellerstedt decision “supplants” or “supplements” the undue burden test from Casey.

Background

Before Hellerstedt, it was thought that a health and safety regulation would pass muster if it was reasonably related to a legitimate government interest and did not place a “substantial obstacle” in the path of a woman seeking a pre-viability abortion. This is called the “undue burden” standard. The Court invented the “undue burden” standard in the 1992 Planned Parenthood v. Casey case.

After the 2016 Hellerstedt case, courts must conduct a “free-form balancing test” (Justice Thomas’s words) that “consider[s] the burdens a law imposes on abortion access together with the benefits those laws confer.”

A key question is whether the balancing test required by Hellerstedt supplements or supplants the undue burden standard.

• If the Hellerstedt balancing test supplants the undue burden standard, that means pro-life laws can be struck down if any burden, no matter how slight, outweighs the benefits.
• If the Hellerstedt balancing test supplements the undue burden standard, that means that any burden created by a pro-life law must still be “substantial,” even if that burden outweighs the benefits of the law.

Meaning of Hellerstedt legal standard remains open question after today’s ruling in June Medical

In the June Medical case, Louisiana argued that the Hellerstedt balancing test supplemented — not supplanted — the undue burden test.

“Hellerstedt did not dispense with the requirement that plaintiffs prove a substantial obstacle to obtaining abortions,” argued Louisiana in its brief. “Nothing in Hellerstedt holds, or even suggests, that courts may enjoin the enforcement of an abortion regulation absent proof of a substantial obstacle.”

The plurality opinion in today’s ruling does not decide this issue. “[T]he State makes several arguments about the standard of review that it would have us apply in cases where a regulation is found not to impose a substantial obstacle to a woman’s choice. That, however, is not this case. The record here establishes that Act 620’s admitting-privileges requirement places a substantial obstacle in the path of a large fraction of those women seeking an abortion for whom it is a relevant restriction.”

In concurrence the Chief Justice observes that the plurality opinion in today’s case “expressly acknowledges” that the Court is “not considering how to analyze an abortion regulation that does not present a substantial obstacle.” The Chief Justice counsels that “[w]e should respect the statement in [Hellerstedt] that it was applying the undue burden standard of Casey.”

Chief Justice Roberts blasts so-called “balancing tests” 

The Chief Justice quotes Justice Scalia in blasting so-called balancing tests on the ground that, “[u]nder such tests, ‘equality of treatment is … impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.'”

In the context of abortion, writes the Chief Justice, “courts applying a balancing test would be asked in essence to weigh the State’s interests in ‘protecting the potentiality of human life’ and the health of the woman, on the one hand, against the woman’s liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life’ on the other” (quoting from Casey). “There is no plausible sense,” the Chief Justice continues, “in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so,” writes the Chief Justice, quoting Justice Scalia once again, “would be like ‘judging whether a particular line is longer than a particular rock is heavy.’ Pretending we could pull that off,” the Chief Justice concludes, “would require us to act as legislators, not judges, and would result in nothing other than an unanalyzed exercise of judicial will in the guise of a neutral utilitarian calculus” (internal quotation omitted).