Cases Since 2016: Dobbs, Texas SB 8, June Medical Services, & Whole Woman’s Health

In June Medical Services v Russo (2020) and Whole Woman’s Health v Hellerstedt (2016), the United States Supreme Court addressed state statutes that regulated abortion clinics in various ways, such as requiring that facilities meet ambulatory surgical center standards and that physicians have admitting privileges in nearby hospitals. Such laws are commonly referred to as Targeted Regulations of Abortion Provider, or TRAP, laws, and they are a means to raise operation costs for facilities, sometimes forcing them to close. Since the laws are ostensibly done in the name of protecting women, proponents are given a means to deny that they are trying to limit or end abortion access.

These cases should be read in tandem. Whole Woman’s Health was widely considered the most important abortion-related case in over 20-years when it was issued since it addressed the dominant means by which abortion regulation has been conducted, and June Medical Services surprisingly affirmed the Court’s earlier ruling. In striking these state laws down, the Court majority declared that there was no medically justifiable reason for the regulations, and that they were thus an unconstitutional undue burden on a woman’s ability to access abortion.

It is important to note that the future of such cases is still very much in question. Chief Justice Roberts, who dissented in Whole Woman’s Health, concurred with the decision in June Medical Services. In doing so, though, he emphasized that he still disagreed with the Whole Woman’s Health decision and that the Court should alter the way that it reviews future cases.

While the Chief Justice suggests an incremental means of limiting future abortion access in June Medical Services, the Court’s most recent majority opinion on Texas’s SB8 in Whole Woman’s Health v Jackson (2021) shows that the five other conservative Justices are open to moving faster and more aggressively to limit abortion access. The conservative majority’s inclination to move aggressively against abortion precedent was on full display in the oral arguments for Dobbs v Jackson Women’s Health Organization (oral arguments in 2021, decision expected in Spring 2022).

“The Supreme Court is taking suspect science seriously. Conservative groups have worked for years for that,” Washington Post/Monkey Cage, December 15, 2021. (co-authored with Alison Gash)

From the text: “Earlier this month, as the Supreme Court heard oral arguments over Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health, the justices gave serious consideration to dubious science. This was not the first time. For decades, right-wing funders and advocates have invested in institutions and individual researchers that will question scientific consensus and advance unproven theories…Our research suggests that the investment in the politics of doubt has also been aimed at the courts. Rather than investing in replicable scientific inquiry, various organizations fight science by peddling doubt and discord.”

“Abortion and the Legitimacy of the Supreme Court,” Red, White & Confused, December 15, 2021.

From the episode description: “The debate over abortion rights has been looming in this country for years – and in early December, the Supreme Court heard arguments about a Mississippi state abortion ban (Dobbs v Jackson Women’s Health Organization). On today’s show, I chat with Josh Wilson, who is a professor and the chair of the political science department at the University of Denver, about this case, the shifts on the Supreme Court, and what this decision will mean for the court’s legitimacy.”

“The Supreme Court might overturn Roe. It took decades of scorched-earth conservative politics to get here.” Washington Post/Monkey Cage, December 2, 2021. (co-authored with Amanda Hollis-Brusky)

From the text: “…the most striking parts of the oral argument in Dobbs put the Supreme Court on trial. The liberal justices repeatedly warned that a decision that upheld this abortion ban would irreparably damage the public sense of the court’s legitimacy. As Justice Sonia Sotomayor remarked, ‘If people actually believe it’s all political, how will we survive? How will the court survive?'”

“Abortion Ban in Texas: On the Future of Reproductive Justice and Constitutional Rights,” (with Profs. Carrie Baker, Cora Fernandez Anderson, Krystale Littlejohn, & Jamie Rowen Moderating) Center for Justice, Law, & Societies, University of Massachusetts, Amherst, September 14, 2021.

From the CJLS Webpage: “On September 14th, a group of featured speakers discussed the recent developments in Texas abortion law. Each speaker has unique experience in reproductive rights such as the gendered nature of birth control, abortion politics, reproductive justice, and the decriminalization of abortion.”

“The Changing Landscape of Abortion Politics,” (with Profs. Renée Ann Cramer, Rebecca Kreitzer, Andrew R. Lewis, Mary Ziegler, & Susan Liebell Hosting) Postscript: New Books Network – Book of the Day, Political Science, Law, Public Policy, Medicine, & American Studies, September 13, 2021.

From Postscript: “Today’s Postscript (a special series that allows scholars to comment on pressing contemporary issues) engages the latest chapter in American abortion politics as the United States Supreme Court has just allowed a Texas statute banning abortions after 6 weeks to go into effect. Lilly Goren and Susan Liebell have assembled a panel of experts in political science and law to interrogate the construction of the Texas law, the Supreme Court ruling, and how these cases map onto the wider political landscape.”

“The Texas Abortion Ruling: What it Means for Rights Beyond Texas’ Borders” (with Profs. Amanda Hollis-Brusky, Ian Farell, & Seth Masket Moderating) Center on American Politics, University of Denver, CO September 9, 2021

This one-hour panel discussion covers a broad range of issues related to the history, politics, and potential future ramifications of Texas’s SB 8 and the Supreme Court’s initial response to the law. While a range of issues are covered, it still provides substantial depth.

“In Texas abortion law, conservatives adopted the progressive playbook—and used it against them” Washington Post/Monkey Cage, September 3, 2021.

This Washington Post Monkey Cage piece was the subject of misreading by some progressives and misappropriation by conservatives. It is meant to situate Texas’s SB 8 in historic context; showing how conservatives have adopted and modified a legal strategy–private enforcement–that has a largely progressive history. Both sides of the political spectrum have gravitated to private enforcement when the state lacks the capacity to meet the ends they seek. Beyond the shift in substantive focus, SB 8 is unique in this lineage in that conservatives have untethered the strategy from the standing limitations that have constrained past private enforcement laws. Ironically, they seek to use what they have long criticized, and they are able to do so because of the legal infrastructure that they have built in the past three decades.

“The Supreme Court’s Culture War Whiplash is All in Your Head,” Newsweek, July 9, 2020. (co-authored with Amanda Hollis-Brusky)

With a string of 5 “culture war” opinions released in the course of a month, the Court’s face value rulings appear to hand out wins to both progressives and social conservatives. In this piece, though, we argue that the Christian Right’s record is far stronger than it first appears–both in the immediate, and, importantly, moving into the future.

“SCOTUS: Abortion, LGBTQ+ Rights and DACA,” RadioEd, July 7, 2020

This is a University of Denver produced podcast discussing three major Supreme Court decisions announced at the end of June 2020. My segment on the political implications of June Medical Services covers the opening 13 minutes. From here, Professors Rachel Arnow-Richman & César Cuauhtémoc García Hernández cover Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California respectively.

“Trump Failed to Deliver for Evangelicals in Supreme Court Abortion Case,” Newsweek, June 29, 2020

This piece attempts to put the June Medical Services v Russo decision in a broader political context – both in terms of Trump’s relationship with white evangelicals, and the recent abortion legislation in both conservative and progressive states.

“The Next Abortion Fight,” Pacific Standard, July 7, 2016

Written in the wake of Whole Woman’s Health v. Hellerstedt, the piece posits the ways that the anti-abortion movement will likely have to reframe and reimagine its efforts.

Letter to the Editor, New York Times (Print & Electronic), June 28, 2016

Written in response to the New York Times’s coverage of Whole Woman’s Health v. Hellerstedt, the letter asks readers to consider the ruling’s affects on the dominant form of abortion politics.

“What the SCOTUS Ruling Says About the Abortion Battle,” TIME, June 27, 2016

Written in the wake of Whole Woman’s Health v. Hellerstedt, the piece posits how the ruling will fundamentally change the politics of abortion.

“How to read Justice Kennedy’s abortion politics tea leaves,” Vox / Mischiefs of Faction, June 26, 2016

Written immediately before the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt, the piece accurately predicts the ruling and posits why Justice Kennedy will side with abortion-rights advocates.

“Texas, abortion and the power of the Supreme Court,” Texas Tribune / TribTalk, March 4, 2016

Written after the US Supreme Court heard arguments in Whole Woman’s Health v Hellerstedt, this piece discusses the cases importance – both before and after the death of Justice Scalia.