Archives for August 2020

By David S. Cohen*

What’s the test in lower court cases challenging abortion restrictions? Is it the burdens versus benefits balancing test from Whole Woman’s Health v. Hellerstedt? Or is it the substantial obstacle test, with no balancing, from Chief Justice Roberts’ concurring opinion in June Medical v. Russo? This is the burning question in the post-June Medical world. Answering it takes us into the world of pornography, voting paradoxes, horizontal versus vertical stare decisis, and the simple-yet-beguiling dictum/holding divide.

The solution to this problem bridges two scholarly interests of mine—reproductive rights and Supreme Court decision-making. I’ve already written about June Medical’s implications for future Supreme Court abortion cases, with the Chief signaling that he is perfectly fine to allow most restrictions to go into effect. Here, I want to focus on the lower courts, who are bound to follow Supreme Court precedent, as opposed to hints as to what the Court might do in the future. But what is the precedent from the divided decision in June Medical?

So far, two lower courts have tackled this problem, reaching opposite conclusions. First, in early July, the District of Maryland found that the FDA’s requirement that abortion pills be dispensed at the clinic rather than being sent by mail is unconstitutional during the coronavirus pandemic. In doing so, the court applied the Whole Woman’s Health balancing test. It reasoned that the “common denominator” between the June Medical plurality and concurring opinions was that the Louisiana law was a substantial burden. Beyond that, there was no common denominator about a test, so the Whole Woman’s Health’s balancing test continues to be the law.

In early August, the Eighth Circuit ruled otherwise. In a case challenging a series of Arkansas abortion restrictions, the Court of Appeals instructed the lower court to re-evaluate the claims based on the Chief’s June Medical concurrence. The court reasoned that the Chief’s opinion “is controlling” because his “vote was necessary in holding” that the Louisiana law was unconstitutional. The court also noted, quoting Justice Kavanaugh’s June Medical dissent, that five Justices (the Chief and the four June Medical dissenters) rejected the Whole Woman’s Health test.

In dueling letter briefs to the Fifth Circuit in a case challenging Texas abortion restrictions, attorneys on both sides of the abortion divide have also produced different analyses. The attorneys representing the abortion clinics[1] told the court that there was no common denominator between the Breyer and Roberts opinions, so neither opinion is controlling, leaving Whole Woman’s Health the decisional rule. The attorneys for the state of Texas,[2] of course, took the opposing position, claiming that Chief Justice Roberts’ rejection of the balancing test in favor of a substantial burden test (without balancing benefits) was now the correct test .

So who’s right here? The District of Maryland and the abortion clinic attorneys have reached the right result, but their analyses are not technically correct.

The right way to get there relies on what’s called the Marks rule. Marks v. United States is a 1977 Supreme Court case that addressed the proper standard for pornography convictions. Deciding the case meant the Justices had to determine what to make of a prior obscenity decision that had fractured opinions from the Justices. Justice Powell’s opinion in Marks announced what is now known as the narrowest grounds rule: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’”

As easy as it is to find and quote this rule, there has been deep scholarly and judicial disagreement (and confusion) over how it is applied (and even whether it should be the rule in these situations). The best scholarly work about the rule comes from Professor Maxwell Stearns, who has long written about Marks. In an excellent forthcoming article (“Modeling Narrowest Grounds”), Professor Stearns describes the theoretical underpinnings of the rule and explains its benefits and limitations. The rest of the analysis in this post is based on my synthesis of emails he and I have traded about his article, which is still in draft form, and June Medical over the past two weeks. (Though any flaws in this analysis are mine alone.)

The key issue in determining if and how Marks applies is whether the Court’s judgment is based on a single dimension. A single dimension means the Court’s decision turns on determining whether the applicable legal principle should be broader or narrower along a single scale. If there is a second issue that is essential for the judgment, such as determining the applicability of a second legal principle that cannot be scaled consistent with the first issue, there are two dimensions. Marks can only apply when there is a single dimension. When there are two dimensions, such as a disagreement over a separate jurisdictional issue, there is a risk of a voting paradox, something I’ve written about extensively.

For instance, in McDonald v. Chicago, the case in which the Supreme Court incorporated the Second Amendment against state and local governments, the split decisions created a voting paradox. In that case, eight Justices rejected incorporation of the Second Amendment under the Privileges or Immunities Clause and five Justices rejected incorporation under the Due Process Clause. Since both claims were rejected by a majority of the Justices, it would seem that the Second Amendment wouldn’t be incorporated. However, because four Justices thought it was incorporated under the Due Process Clause and a separate Justice believed it was incorporated under the Privileges or Immunities Clause, the outcome of the case is that the Second Amendment was incorporated. Thus, the paradox—separating out the dimensions leads to a conclusion that there is no incorporation, but the outcome of the case is that there is incorporation.

In June Medical, there is no paradox because there is only one dimension that determines the outcome of the case—how protective the Constitution is of the abortion right. Characteristic of one-dimension cases in which Marks applies, the fragmented opinions in the case can be aligned along a spectrum of more protective to least protective: Justice Breyer’s plurality opinion would protect the abortion right the most, the varying dissenting opinions would protect it the least, and Chief Justice Roberts’ opinion is in the middle. Thus, under Marks, the Chief Justice’s opinion—the narrowest that supports the judgment in the case—is the controlling opinion.

However, that isn’t the end of the analysis. The Chief’s opinion can be recast as one that has two parts to his analysis of this one dimension. First, he says that he disagrees with the legal analysis in the Breyer plurality because he doesn’t believe the Constitution requires balancing burdens and benefits to determine if an abortion restriction is unconstitutional. Rather, under the Chief’s rule, if an abortion law has a legitimate basis, it is constitutional as long as it doesn’t create a substantial burden. This is a rejection of the legal standard from Whole Woman’s Health. But second, the Chief says that, even though he rejects the legal standard from that case, as a matter of stare decisis he will follow the specific factual holding of the case (which he dissented from in 2016)—that admitting-privileges laws constitute a substantial burden. Because he follows this part of Whole Woman’s Health, he concludes the Louisiana law is unconstitutional.

If the Marks analysis ended with concluding that the Chief’s entire opinion controls, lower courts would have to apply both parts of his opinion—his relaxed test as well as the conclusion that admitting privileges laws are unconstitutional. However, the Marks analysis, by its very language, also requires determining the holding of the controlling opinion in order to determine what part of the Chief’s controlling opinion creates the binding precedent for lower courts.

Looking for the holding from the Chief’s opinion gets us to our final answer. The first part of his analysis—about the proper test for future cases—is dicta because it is not essential to the resolution of the matter before the Court. Why not? Because he says in the second part of his analysis that he is going to apply the factual holding from Whole Woman’s Health to determine that the law is unconstitutional. In other words, the new standard the Chief puts forth in the beginning of his opinion is not necessary to reach his conclusion that Whole Woman’s Health should apply to the Louisiana law as a matter of stare decisis.

What this means is that June Medical produces a very limited holding, one that is only about the unconstitutionality of admitting privileges. That is all we can take away by applying Marks to the fractured opinions. Beyond that, we have no new holding from the Supreme Court about a legal standard to apply in abortion cases. That means Whole Woman’s Health’s balancing test, which was announced in a majority opinion from the Supreme Court, continues to be the test lower courts must apply going forward.

What the Supreme Court will do as a matter of horizontal stare decisis is a different matter, as five Justices have signaled their support for a test that allows more state abortion restrictions. But, as a matter of vertical stare decisis, Whole Woman’s Health continues to bind the lower courts because any language to the contrary in the Chief’s controlling June Medical opinion was merely dictum.

*David S. Cohen (J.D.) is a Professor of Law at the Thomas R. Kline School of Law at Drexel University.

[1] Letter Brief of Plaintiffs-Appellants at 3–6, Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir. July 10, 2020), 2020 WL 4060434.

[2] Letter Brief of Respondents at 5–7, Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir. July 10, 2020), 2020 WL 4060435.

By Mary Ziegler*

The Supreme Court’s decision in June Medical Services v. Russo was more than a little ironic. Chief Justice Roberts’s controlling concurrence read as a celebration of stare decisis, the principle that the Court should usually defer to its past decisions. And yet Roberts upended precedent. If Roberts’s concurrence becomes the standard for testing the constitutionality of abortion regulations, the courts will not have to consider whether abortion restrictions have any benefit for patients, as Whole Woman’s Health v. Hellerstedt required. In short, Roberts’s proposed rule will make it easier for states to regulate abortion. Although the Chief Justice made a point of noting that no one had asked the Court to reconsider Roe v. Wade or Planned Parenthood v. Casey, he may well be game if that invitation eventually arrives.

June Medical could be bad news for anyone committed to abortion rights. Nevertheless, it is not easy to figure out where the anti-abortion movement goes next. At first, the Court’s decision might seem to discourage patient-protective anti-abortion laws. These statutes—which claim to prevent the psychological and physical harm done by abortion—have a poor win-loss record in the Supreme Court. The Court has used patient-protective reasoning in upholding laws focused on fetal life, such as the federal Partial-Birth Abortion Ban Act. But before 2016, the Court had struck down only one restriction, a husband-notification measure, under the undue burden test. Since then, the Court has rejected every patient-protective measure it has considered. The anti-abortion movement has no shortage of options if patient-protective restrictions have backfired. Sweeping bans, like so-called heartbeat laws, focus on fetal life rather than patients. So do several restrictions that focus on procedures later in pregnancy.

As I show in my new book, Abortion and the Law in America, patient-centered arguments against abortion may be here to stay. The dissents in June Medical foreshadow some of the arguments that will likely be key to efforts to reverse Roe, many of which suggest that abortion hurts patients. The dissenters accepted Louisiana’s argument that doctors should not have third-party standing to challenge abortion restrictions on their patients’ behalf. Justice Alito agreed that there was “a blatant conflict of interest between an abortion provider and its patients.” Justices Alito, Thomas, Gorsuch, and Kavanaugh also concluded that Louisiana’s law should stand precisely because it protected pregnant people against real dangers tied to abortion. Had the dissenters prevailed, their opinion would have made it much harder to challenge any abortion restrictions.

The dissenters’ views tell us as much about what at least four members of the Court think about the reality of abortion care in the United States—and how those views may lay the groundwork for reversing Roe. Justice Alito described abortion providers as profit-driven businesspeople who barely know their patients. He invoked Kermit Gosnell, a provider convicted of killing one patient and three infants who were born alive, in detailing the risks of abortion to all pregnant people.

These descriptions reflect an anti-abortion argument that has been decades in the making. Since the 1970s, abortion opponents have tried to undermine abortion rights not by advocating for fetal rights but by contesting what abortion in the United States is really like. This approach made considerable strategic sense. The Court had not been receptive to arguments seeking to establish constitutional rights for fetuses, but incremental restrictions have fared much better. To defend these laws, abortion foes detailed the supposed benefits of abortion restrictions (and condemned the purported dangers of abortion).

Since Casey, anti-abortion leaders have focused particularly on the consequences of abortion on patients’ health and wellbeing. The Casey Court declined an invitation to unravel abortion rights. The plurality reasoned that Roe was not only a workable decision but also one that had created substantial reliance interests. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” Casey reasoned. In the years after Casey, leaders of the anti-abortion movement concluded that the Court would never reverse Roe unless the public and the Justices believed that pregnant people should not rely on abortion to lead more equal lives. Anti-abortion lawmakers introduced laws intended to show that abortion made patients sick. Targeted regulations of abortion providers, like the one struck down in June Medical, relied on this patient-protective justification. So did laws claiming that medication abortions could be reversed, that abortion caused breast cancer, or that specific abortion techniques could be banned without a health exception. These arguments have played a key role in anti-abortion advocacy for nearly thirty years. June Medical is unlikely to change that.

If anything, anti-abortion leaders increasingly emphasize claims that abortion access undermines racial justice as well as equality for women and pregnant people. This summer, new states, including Mississippi and Tennessee, have joined the list banning abortion for reasons of race, sex, or disability.

These laws, like the patient-protective statutes at issue in June Medical, thrive because of growing distrust of public-health authorities, medical experts, and even the media. A focus on the reality of abortion in the United States has undermined any consensus about the basic facts and deepened polarization. Now, the courts are asked to decide whether pregnant people often have abortions for racist, sexist, or ableist reasons, whether abortion providers are irresponsible, or whether abortion has serious side effects.

Polarization of this kind has serious costs. During the COVID-19 pandemic, the kind of distrust of medical authorities that has long defined the abortion struggle has sparked conflict about everything from mask mandates to the safety of a possible vaccine. In the context of reproductive justice, polarization has made it all but impossible for those with clashing views on abortion to work together on any reproductive justice issue, including maternal mortality to pregnancy discrimination at work.

Despite the damage they have done, we should not expect anti-abortion leaders to give up on arguments about the reality of abortion. After all, these claims just might be working. June Medical is proof of that.

*Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

By Aziza Ahmed*

Among the many important critiques made by reproductive justice (RJ) advocates, a key claim is that “choice” is a myth for poor women seeking reproductive health services. According to RJ advocates and scholars, a combination of laws and social realities—from welfare restrictions to discrimination in the hospital setting—have made it nearly impossible for poor pregnant women to have autonomy and agency in their health-related decision making. Some scholars have argued that the myth of “choice” reifies the woman’s responsibility for her purportedly bad reproductive decisions.

The idea that the “choice” rhetoric allows for blame is especially relevant to the criminal legal response to pregnancy and childbirth, where we see prosecutors, doctors, and nurses seeking to hold women responsible for their birth outcomes. This use of the criminal law to manage women’s pregnancies is an expected outcome of the expansion of the criminal legal system. Starting in the late 1960s and early 1970s, as the welfare state retracted, perceived social problems were recast as criminal problems. Criminal law encroached into nearly every aspect of social welfare from food assistance to the delivery of health services. For poor women, this often meant that their pregnancies—the types of foods they could afford to eat, as well as their healthcare from pregnancy to birth—took place under the specter of criminal law.

The persistent use of the criminal law to regulate pregnancies raises the need to explore how expertise—from forensic science to medical evidence—is utilized to prosecute women for crimes related to pregnancy. I recently explored the way particular modes of expertise and evidence operate in cases of still birth and abortion with regard to the controversial floating lung test (FLT). The FLT is often used in prosecutions of women for still births or self-induced abortion, and is designed to test whether an infant was born dead (a still birth) or alive. The FLT requires taking pieces of a fetus’ lung and placing it in water. If the pieces of the lung float, the baby had taken at least one breath and is classified as having been “born alive”; if the lungs sink, then the baby was a still birth. If born alive, women are frequently prosecuted for infanticide or homicide.

The FLT came to national attention in the case of Purvi Patel. Patel had ingested an abortifacient that she ordered from Hong Kong after learning she was pregnant. Trial records suggest that she had no idea how pregnant she was and assumed that she was still early in her pregnancy. After delivering the fetus, Patel placed it in a bag and went to the hospital. After examining her, a physician dated her pregnancy at a later stage and called the police, believing the child was still alive. To answer the question of whether or not there was a live birth, forensic scientists turned to the floating lung test. If the child had been born alive, Patel could be—and was—charged with numerous crimes in Indiana, including feticide and neglect of a dependent leading to death. The test, as I describe in detail in a recently published paper, is highly contested and viewed as unreliable by forensic scientists. This is primarily because there are numerous ways lungs can become oxygenated and generate false positives. And yet, even today, courts continue to accept this faulty evidence against women who have had still births. Some of these women, though not all, may have attempted to induce their abortions.

The FLT is not the only example. The supposed “crack baby” epidemic is another instance of the intersection of criminal law, expertise, and reproductive health. Documented in detail by Dorothy Roberts, the myth of the crack baby epidemic had catastrophic consequences for poor Black women. Starting in the 1980s, public officials and the media advanced a narrative of Black women as uncaring mothers who passed drugs to their fetus and resulting child. Hospitals doubled down on reporting drug use to law enforcement and social services, often targeting pregnant women of color in ways that neither addressed their health needs nor ensured better birth outcomes for their children.

Since then, research has found that the impact of crack cocaine on children’s lives was far less pernicious than that of poverty, inspiring a national conversation about the failed carceral response to the purported “crack baby” epidemic. This has spawned a public reckoning for the mainstream media, most notably the New York Times. Yet, despite the public reconsideration of criminal approaches to policing pregnancy and motherhood, Michele Goodwin’s pathbreaking new book, Policing the Womb: Invisible Women and the Criminalization of Motherhood, powerfully shows how little has changed. Goodwin carefully documents the variety of ways in which the criminal law continues to entangle poor women, especially poor women of color, throughout the courses of their pregnancies, whether by regulating their ability to decline surgeries or by prosecuting them for drug use.

The role of scientific expertise and evidence in the “crack baby” epidemic has raised several questions about the social and political environment facilitating the uptake of particular expert claims. Why were the media, courts, and legislatures so willing to accept “small n” studies asserting correlations between crack cocaine and birth outcomes in order to enable the prosecution of pregnant women? Why were courts and the public so willing to accept the narrative of the purported epidemic, when from the outset there were experts who argued that babies born to mothers using crack or cocaine were not experiencing the neurological symptoms and long-term effects that other physicians claimed?

The successful prosecutions of women who have still births, self-induce abortion, or use drugs during pregnancy is significant for another reason. Courts were not only accepting, but legitimating, problematic forensic science or research by allowing it to pass through procedural hoops and make it out the other side. This raises the question of why courts allowed unreliable evidence to survive procedural hurdles in the first place. In the case of the floating lung test, as well as in other forensic tests used in the pregnancy and abortion context, there are a few possibilities that I lay out below (which are discussed at greater length in my paper).

First, rules of evidence and procedure have been poor tools for excluding faulty science in the courts. Many scholars have documented how the flexibility of evidentiary standards allows judges—who may lack the capacity to understand and grapple with scientific questions—to admit forensic science of questionable merit. There is a general sense in the criminal law and procedure literature that such tests have failed defendants by allowing forensic tests riddled with issues to substantiate claims that lead to conviction.

Second, judges are not immune from societal bias or political pressure. As legal scholar Deborah Tuerkheimer has noted in the context of Shaken Baby Syndrome, the desire to blame someone for the death of a child can create its own momentum in courts. As I argue in my work, this momentum also has racial and gender dynamics, which are driven in part by moral panics surrounding pregnancy and mothering. The role of race is abundantly clear in the context of crack cocaine use in pregnancy. Public figures such as President Reagan churned out a narrative about Black mothers exploiting their children to extract payments from the welfare state. The criminalization of pregnancy flowed naturally from this narrative as the war on drugs took hold. Negative ideas about Black motherhood were so powerful, and prosecutions so common, that the research suggesting Black women were hurting their fetuses simply served to confirm an existing story.

Finally, as in the context of the supposed crack baby epidemic, prosecuting women for their still births and self-induced abortions expressed a moral panic about women who had betrayed their motherly instincts. This can be seen in the prosecutor’s painting of Patel as a cold-hearted murderer:

On July 13 the little boy was born on a cold, hard bathroom floor. The only touch he got from his mother was to move him from that bathroom floor into a garbage can. In that garbage can he was lying on and surrounded by waste that no one wanted. From there he went to the bottom of a cold, metal dumpster. He was born and died without being cared about, without experiencing anything good. Not one second of comfort, not one second of warmth. We’re here for a little boy that we can’t call by name because he never got one.[1]

Aside from discounting Patel’s version of events in which she described being in a state of shock after delivering a dead fetus, the prosecution suggests that as a mother she should have instinctively cared for the child she gave birth to. By painting her in this light, the prosecution implied that Patel deserved to be punished for failing to live up to a set of prevailing notions of pregnancy and motherhood. And by accepting these arguments and the outcome of the floating lung test over the protestations of Patel’s defense attorney, the court legitimated both the faulty forensic science and the idea that mothers have not only moral but also legal duties towards their fetuses.

The criminalization of pregnancy and abortion is still rampant. Questioning expert claims that enable these prosecutions, as well as the procedural mechanisms that fail to check questionable and unreliable science, helps to dismantle the regulation of pregnancy and abortion through the criminal law.

*Aziza Ahmed is a Professor of Law at Northeastern University.

[1] Transcript of Record at A7, State v. Patel, No. 71D08-1307-FA-00017 (St. Joseph Super. Ct. Mar. 30, 2015).