Marc Spindelman (Ohio State) has published with the Georgetown Law Review Online his essay Embracing Casey: June Medical Services LLC v. Russo and the Constitutionality of Reason-Based Abortion Bans. Here is the abstract:
June Medical Services L.L.C. v. Russo has already begun gaining a certain reputation as a Trojan Horse: in form, a pro-choice ruling that overturns a Louisiana anti-abortion measure, but in substance, an anti-choice, pro-life decision that sets the stage for future reversals of the Supreme Court’s reproductive rights jurisprudence. Without denying that prospect, this work identifies different possibilities afoot in June Medical, specifically, in Chief Justice John Roberts’s key fifth-vote concurrence in the case. A close reading of this opinion shows that its reliance on stare decisis principles exceeds a jurisprudential commitment to a narrow understanding of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, the concurrence’s immediate point of reference within the Court’s abortion rights jurisprudence. In a wider sense, the concurrence demonstrates a commitment to Planned Parenthood of Southeastern Pennsylvania v. Casey, and, by extension, what Casey preserved of Roe v. Wade.
Seen this way, Chief Justice Roberts’s June Medical opinion does not set a course for incrementalist reversals of abortion rights that will snowball into Casey’s and Roe’s shared demise. Subtly, if not perhaps finally, the Chief Justice’s June Medical concurrence signals an embrace of Casey that, functioning as a beachhead, should prospectively secure the constitutional foundations of women’s abortion rights.
Interwoven with the case for this understanding of the Chief Justice’s June Medical concurrence are multiple tallies of the constitutionality of an important set of pro-life legal measures—so-called “reason-based” abortion bans—that take direct aim at Casey’s post-Roe doctrinal framework, including one such measure from Ohio, presently pending before the U.S. Court of Appeals for the Sixth Circuit sitting en banc. Analysis of these measures demonstrates why “reason-based” abortion bans—which make the availability of abortions depend on the reasons that women have for choosing them—are unconstitutional both under Casey’s basic doctrinal framework and under the Chief Justice’s approach in June Medical. No matter how the Sixth Circuit decides the case on Ohio’s reason-based abortion ban now that June Medical has been handed down, the issue of the lawfulness of reason-based abortion bans may soon find its way to the Supreme Court. One way or another, the question of the meaning of the Chief Justice’s June Medical concurrence certainly will.
The full essay is available here.