We are not out of the woods yet!

Following my post of June 29, 2020 on the June Medical decision victory, a sobering note from  Cynthia Yee-Wallace who  is deputy attorney general of the state of Idaho. She filed an amicus brief on behalf of the state in support of the respondent in June Medical Services v. Russo, along with Brian Kane, who is the assistant chief deputy attorney general for the state of Idaho. The following is an excerpt of her post on the Scotus Blog:

“The chief justice simplified the role of the judiciary in analyzing abortion regulations to a pair of straightforward questions: (1) Does the state have a legitimate purpose in adopting the regulation? and if so, (2) Does the regulation create a substantial obstacle to a woman’s right to a previability abortion? With this formulation, Roberts brought the balance of Casey back into the equation by making clear that courts analyzing abortion regulations as an undue burden are required to focus on whether the law creates a substantial obstacle to the abortion decision, not on whether the benefits of the law outweigh its costs. State abortion regulations will continue to be valid and enforceable if a challenger is unable to show that the law at issue is a substantial obstacle to women’s right to choose a previability abortion. Importantly, Roberts (and presumably the four dissenters) interprets a substantial obstacle as requiring more than a simple showing that the law makes it harder to obtain an abortion. It should not be overlooked that Roberts dissented in Whole Woman’s Health, and concurred in June Medical solely on the basis of stare decisis. In other words, states may enact admitting privileges regulations that can meet the Casey requirements, but a law identical to Texas’ or Louisiana’s will fall.

Abortion providers’ one-sided interpretation in Whole Woman’s Health sought to invalidate the states’ ability to regulate previability abortions for a legitimate purpose. The chief justice clarified that Casey continues to be the lodestar for legal and judicial interpretation of state previability abortion regulations. June Medical looks to be a critical victory for states because it reaffirmed the straightforward two-question inquiry that Casey created, and demonstrates that states may continue to regulate abortion within the well-defined boundaries of Supreme Court precedent.

We should remember that Robert’s concurring opinion is dictum, meaning it is an opinion but is not and will not be considered to be legally binding as precedent of the Supreme Court.