The philosophical makeup of the Supreme Court is fluid. With the addition of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the judicial philosophy of the majority of the Court’s members has once again shifted. In light of this shift, in April 2021 the Arkansas Law Review published the article “A Costly Victory: June Medical, Federal Abortion Legislation, and Section 5 of the Fourteenth Amendment.” Essentially the authors argue that the Supreme Court case June Medical was a victory for abortion supporters, but an expensive one that may ultimately contribute to a different outcome in the near future. Here I summarize the article for your consideration. For clarity and unless otherwise specified, my parenthetical citations in this post refer to page numbers in “A Costly Victory,” linked above.
During the first trimester, Roe left a woman’s right to abort in the hands of her physician’s medical judgment. Subsequent to the first trimester, a woman’s right to abort her unborn child could be subject to state regulation, but only on the basis of the state’s interest in preserving the health of the mother. However, once an unborn child passed the point of viability the court held that a state may exercise more limiting regulations, including barring a woman from aborting the fetus, except in circumstances where her life or health is endangered (pg. 51).
Although the trimester framework was subsequently overturned by Casey the court has consistently ruled that the point of viability is significant and, post viability, states have a greater interest in regulating the practice of abortion to preserve the life of the unborn. Casey established a balancing test, requiring courts to weigh the benefits and burdens of abortion regulation when determining whether a law violated the constitution. This ambiguous balancing test was affirmed in Whole Woman’s Health v Hellerstedt (pg. 2).
Although the Court’s decision in June Medical overturned an abortion law, advocates of abortion reacted swiftly to the Court’s deferential interpretation of state regulation of pre-viability abortions. They immediately calling for the codification of Roe through federal legislation, a call echoed by the Biden administration just prior to the President’s inauguration (pg. 3). For years, abortion proponents have desired federal legislation as a vehicle of further codifying the right to abortion, and top Democratic politicians such as Barbara Boxer and Barack Obama have supported such legislation (pg. 3).
Congress has limited ability to enact such legislation.
However, the June Medical decision limits the ability of Congress, under Section 5 of the Fourteenth Amendment, to enact the type of legislation promoted by abortion advocates. This is because Congress’s authority under Section 5 is limited (pg. 35). Indeed, the Court ruled in City of Boerne v. Flores that Congress lacked the power to enforce limitations under the Religious Freedom Restoration Act on state and local governments, holding that Congress may not use Section 5 authority to effect a substantive change to the Due Process Clause because “the text of [section 5] [is] inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States” (pg. 35).
Functionally, this means Congress may pass laws to prevent violations of section 5 of the Fourteenth Amendment, but it may not pass laws altering the substance of the Amendment. Laws passed via Section 5 authority must target state and local laws and regulations that “have a significant likelihood of being unconstitutional” (pg. 36). Because the June Medical decision significantly reduced the probability that any given abortion regulation “contravenes a woman’s due process rights” it thereby curtailed the authority Congress has to enact federal legislation designed to undercut the ability of state and local governments to regulate abortion. (pg. 36)
The possible implications of a Dobbs ruling are significant. Should the Court grant states the ability to limit pre-viability abortions, this would be a monumental decision. To date, the Court has allowed Casey’s prohibition on pre-viability abortion bans to hold (pg 65); in light of such precedent, lower courts have enjoined the enforcement of all pre-viability bans, except one ban of abortions at twenty weeks or earlier (pg. 65). Further, although some sates have bans on abortions ranging from twenty-two to twenty-fours weeks, the constitutionality of such laws is highly suspect, meaning their retention through statutes is likely for the purpose of governments signaling a moral disdain for abortion (pg. 65).