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NEWS AUGUST 31, 2020 ¦ 17

The U.S. Justice Department and state anti-abortion officials and groups rely on a 1977 Supreme Court ruling in
arguing that the concurring opinion by Chief Justice John Roberts Jr. in the Louisiana case altered the standard for

judging the constitutionality of abortion regulations and controls all the disputes going forward.

when justices are not certain of the consequences of concluded. He also criticized that 2016 precedent,
their votes,” said Richard Re of the University of Vir- Whole Woman’s Health v. Hellerstedt in which he dis-
ginia School of Law, who has researched and written sented, because it considered a regulation’s benefits
on the Marks rule. as well as its burdens in weighing its constitutional-
Re, a critic of the standard set out in the case, said ity.
the rule systematically favors outlier views, discour- “In this case, [Planned Parenthood v.] Casey’s re-
ages compromise, fosters confusion and can lead to quirement of finding a substantial obstacle before
justices jockeying for what their votes do or don’t invalidating an abortion regulation is therefore a
mean. sufficient basis for the decision, as it was in Whole
“When the stakes are so high and the consequenc- Woman’s Health,” Roberts wrote. “In neither case,
es so stark, that’s when you get Marks conundrums,” nor in Casey itself, was there call for consideration
Re said. “If there is not a sufficiently clear procedural of a regulation’s benefits, and nothing in Casey com-
rule, you will have this precise confusion. I definitely mands such consideration.” The benefits discussion
think given what’s happening here and other Marks in Whole Woman’s Health, he said, “was not neces-
issues out there that this will be something that will sary to its holding.”
trouble the Supreme Court again.” Roberts was at once heralded for casting his first
Roberts, concurring in the judgment in June Med- vote against an abortion restriction. But some court
ical Services, agreed with his four liberal colleagues observers at the time pointed out that Roberts’ con-
that the Louisiana law was identical to a Texas law curring opinion had muddled what was viewed by
that the justices struck down in 2016. abortion rights groups as a victory for reproductive
Under principles of stare decisis—applying prior rights.
precedent—the Louisiana law must fall, Roberts
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