Since President Donald Trump nominated Brett Kavanaugh to the Supreme Court, everyone has placed bets about how long it would be before Roe vs. Wade was overturned. What everyone forgot is that the Supreme Court can functionally eliminate access to abortion without saying a word about Roe itself.
Last week’s abortion decision out of Arkansas should certainly refresh everyone’s memories. The U.S. Court of Appeals for the 8th Circuit, which just handed down a decision in Hopkins vs. Jegley, had the first crack at interpreting the Supreme Court’s recent decision in June Medical Services v. Russo. In that earlier case, the high court struck down a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital. At the time, progressives celebrated what seemed to be a big victory for abortion rights. Legal commentator Jeffrey Toobin proclaimed that Chief Justice John Roberts Jr., in joining his more liberal colleagues, had turned over a new leaf.
But Hopkins v. Jegley suggests that the new John Roberts is a lot like the old one — and that the court is well on its way to dismantling abortion rights.
Let’s start with the basics: Jegley dealt with four Arkansas abortion restrictions. One bans the safest and most common method of abortion after the first trimester, dilation and evacuation. Another requires a doctor to get a patient’s complete medical history before performing an abortion. Arkansas also mandates that doctors call the police any time anyone under age 17 has an abortion. And after every procedure, the state requires that both genetic parents consent to the state’s chosen method for disposing of fetal remains.
In 2017, a trial court held that all of these laws failed the test set by the court for abortion restrictions, because they imposed an “undue burden” on patients seeking abortions. Some doctors could not safely perform abortions after the first 12 weeks if forced to rely on unproven alternatives to dilation and evacuation. Requiring full medical records might create long delays and expose patients to harassment. Telling the police about every minor having an abortion would invade patients’ privacy and discourage them from ending a pregnancy. Notifying a sexual partner about the disposal of fetal remains could endanger victims of domestic violence and give them second thoughts about having an abortion.
But this week, the 8th Circuit said that none of this was as simple as the trial judge made it sound. In 2017, when the trial judge first ruled in Jegley, courts applying the undue burden test had to balance the benefits and burdens created by an abortion regulation.
But with June Medical, Roberts transformed the undue burden test, making it far less protective of abortion rights. Before, courts had to consider whether restrictions delivered any benefit. Now, judges don’t have to worry if legislators are relying on dubious evidence — or if a restriction serves any purpose at all. The courts used to take a hard look at all the evidence about a law’s balance of benefits and burdens in a given case, even when states demanded deference. After June Medical, if legislators can claim with a straight face that a matter is scientifically uncertain, the courts should give them more room to regulate abortion. We don’t know yet exactly what Roberts counts as an undue burden, but with Jegley, the 8th Circuit is predicting that all of Arkansas’s restrictions — and possibly a whole lot more — are perfectly constitutional.
So what kinds of abortion restrictions count as unduly burdensome now? Not many, it seems. Red states are working to dictate how, when and why patients have abortions, and the Supreme Court has already laid the groundwork to uphold these laws. States might not be able to pass wholesale bans that criminalize all abortions, without exceptions for rape and incest — but up to that limit, almost everything else might be fair game. States could make it impossible to have a safe abortion after the first trimester. They could ban medication abortions or proscribe procedures sought for reasons that lawmakers view as objectionable. If almost no restrictions count as an undue burden, there won’t be much of Roe left to overrule.
Jegley is much more than a single interpretation of June Medical. It’s a preview of how the court can dismantle abortion rights without appearing partisan, or triggering the kind of backlash the chief justice seeks to avoid: Judges can simply redefine “undue burden,” again and again.
People who support abortion rights are waiting for a big announcement that Roe is gone. That moment may never come, but in the end, it may not matter. While we wait to learn Roe’s official fate, the right to abortion may have functionally disappeared.
Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law and author of “Abortion and the Law in America, Roe v. Wade to the Present.”