Ruling’s Impact on the Undue Burden Standard

New Center Report Examines Impact of the U.S. Supreme Court’s Abortion Ruling in June Medical Services v. Russo

The “undue burden” legal standard protecting abortion rights remains unchanged—for now.

A new report issued by the Center for Reproductive Rights analyzes the U.S. Supreme Court’s decision in June Medical Services v. Russo, a leading abortion case brought and won by the Center and decided in June 2020.

The report, titled “The Undue Burden Standard After June Medical Services v. Russo,” examines the ruling’s impact on the legal standard that has been used by courts for decades to determine the constitutionality of abortion laws.

In June Medical Services, the Supreme Court, in a 5-4 ruling, struck down as unconstitutional a Louisiana abortion restriction that would have led to the closing of two of the state’s three remaining clinics that provide abortion care. The law was identical to a Texas law the Court ruled unconstitutional in Whole Woman’s Health v. Hellerstedt (WWH)—a case won by the Center in 2016.

Justice Stephen Breyer wrote the June Medical Services plurality opinion, joined by three other justices, affirming the Court’s strong legal standard from Whole Woman’s Health and reiterating that courts must “weigh the law’s asserted benefits against the burdens.”

Chief Justice John Roberts joined the plurality in declaring the law unconstitutional—but he wrote his own concurrence that disagreed with the legal standard the plurality had affirmed.

The Center’s new report addresses questions about the impact of the decision through an in-depth analysis of Justice Breyer’s opinion, Chief Justice Roberts’s concurrence, and past Supreme Court abortion rulings that have applied the undue burden standard.

The Undue Burden Test: Burdens and Benefits

Adopted in Planned Parenthood v. Casey in 1992, the undue burden test is the legal standard that courts use to determine whether an abortion restriction violates the Constitution. In Casey, the Court held that an abortion restriction is unconstitutional if it imposes burdens that outweigh its benefits.

In 2016, in Whole Woman’s Health v. Hellerstedt, the Court affirmed that the undue burden legal standard requires that “courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” In other words, unless benefits outweigh burdens, the law is unconstitutional. The decision also “reaffirmed that real-world impacts of abortion restrictions—particularly on marginalized communities—matter in the undue burden analysis.”

In June Medical Services in 2020, the plurality decision written by Justice Breyer and joined by Justices Ginsburg, Kagan, and Sotomayor reaffirmed the holding from Whole Woman’s Health that courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

The Roberts concurrence does not change the “undue burden” standard.

Much attention has been given to Chief Justice Roberts’s vote and concurrence in June Medical Services. First, he voted with the majority to declare the Louisiana law unconstitutional. Chief Justice Roberts cited “stare decisis”—the legal principle that tells courts to decide similar cases the same way—for his reasoning in June Medical Services. Besides citing precedent, the Chief Justice agreed with the plurality on several key specifics, including the burdens that the Louisiana law would have imposed on patients and providers.

However, Chief Justice Roberts—writing for only himself—pointedly rejected any balancing of benefits against burdens as part of the “undue burden” test in deciding the constitutionality of abortion restrictions. He would instead consider whether an abortion restriction is reasonably related to a legitimate purpose as a threshold requirement.

Even while it critiques the Court’s current approach to evaluating abortion restrictions, the Roberts concurrence does not change the undue burden standard that has protected abortion rights since 1992.

While he disagreed with the four other justices who explicitly affirmed the legal standard, Chief Justice Roberts’s “single vote does not create a common denominator on how to apply undue burden,” the report explains. “His concurrence cannot change the legal standard. It does no more than express his diverging view of the test, while WWH remains controlling precedent, unless or until the Court votes to overturn it.”

Since the June Medical Services decision, at least one lower court has relied on the Roberts concurrence to cast doubt on what legal standard applies. The Center’s report states, “This ignores that five justices in June Medical Services, including Chief Justice Roberts, agreed that WWH has continued stare decisis effect, which neither a single vote, nor a lower court, can change.”

“Only the Supreme Court can overturn its own precedent,” says the report, concluding that June Medical Services “narrowly preserved the balancing test that powerfully rejects laws that impose burdens that outweigh benefits, at least for now.”

The recent death of Justice Ruth Bader Ginsburg introduces new uncertainty regarding the future Court’s commitment to the undue burden standard—and whether her replacement would abide by the balancing test or vote to reject established precedent.

Read the Center’s full report here: “The Undue Burden Standard After June Medical Services v. Russo”