Explainer: The Supreme Court refuses to protect women from the dangerous practices of the abortion industry

June 29, 2020

In a 5-4 ruling, the Supreme Court failed to prioritize the health and safety of women over the profits of the abortion industry by striking down reasonable medical regulations for abortion clinics in Louisiana. 

Justice Breyer wrote the majority opinion joined by Justices Sotomayor, Ginsberg, and Kagan. Chief Justice Roberts wrote a concurring opinion, joining with the four more liberal justices in the Court’s ruling. Justices Thomas, Alito, Kavanaugh, and Gorsuch wrote dissenting opinions.

What is this case about? 

The case, June Medical Services LLC v. Russo, asked the justices to consider a Louisiana law designed to protect women. This law, Louisiana Act 620, passed through the Louisiana state legislature in 2014 with wide bipartisan support. The law required doctors performing abortions to have active admitting privileges at a hospital located no further than thirty miles from the location at which the abortion is performed or induced. This would ensure that women seeking an abortion could be quickly transferred in the event of any medical complications. Every other outpatient medical provider is required to have hospital admitting privileges—this policy holds abortion clinics to the same standards of medical care that every other medical provider in Louisiana is required to abide by.

This case reveals the simple truth that abortion is not healthcare. If abortion was healthcare then the clinics involved should be held by law to proper medical standards to protect their patients. The abortion lobby cannot claim to be on the side of their patient’s health while opposing healthcare industry regulations.

How did the Court rule in this case?

The court applied and upheld the prior precedents in Planned Parenthood v. Casey, which established the “undue burden” precedent, and Whole Woman’s Health v. Hellerstedt, which struck down a Texas law on medical standards similar to Louisiana’s under consideration today. Taken together, these cases hold that a state cannot even enact reasonable public health regulations on the abortion industry if a court finds that those regulations place an “undue burden” on the ability of women to obtain abortions.

Unfortunately, the Court upheld the 5-3 decision in Hellerstedt and refused to acknowledge the responsibility of states to ensure that women are protected if they experience complications related to an abortion. Further, by granting abortion doctors “third-party standing,” the Court ensured that more lawsuits would be brought by doctors, “on behalf of patients,” opposing common sense health and safety standards.

What is the “undue burden” precedent?

The undue burden precedent comes from a 1992 Supreme Court case called Casey v. Planned Parenthood in which the Court, led by Justice Sandra Day O’Connor, reworked Roe v. Wade instead of overturning it. Roe allowed states to regulate abortions after the baby had reached the point of viability. The Court saw this as an unworkable standard because the point of viability is constantly changing due to medical advances.

Instead of overturning Roe, the Court devised a new legal test to determine when and how a state could regulate the practice of abortion. This new test allowed a state to place any regulation on abortion as long as the regulation did not place a substantial obstacle on a woman’s so-called constitutional right to have the abortion. Chief Justice Roberts, quoting Casey, explained in his concurring opinion in June Medical, “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” He goes on to write, “Laws that do not pose a substantial obstacle to abortion access are permissible, so long as they are ‘reasonably related’ to a legitimate state interest.”

The undue burden test has proved an equally problematic framework because the test is subjective. Courts have not clearly defined what does and does not meet a substantial obstacle. It is up to the Court in future cases to more clearly articulate the parameters of the test. 

What was the ERLC’s amicus curiae brief about?

The ERLC filed an amicus curiae brief (a friend-of-the-court brief) in this case arguing that the undue burden standard was not the correct test for this case. Because Louisiana Act 620 sought to bring abortion clinics—which are surgical clinics—under the same medical standards as all other surgical clinics, we argued that the legal test used for all other surgical clinics should apply. That legal test is called the rational basis test, whereby the Court asks if the state had a rational basis—a very low standard to meet—for passing the statute or regulation in question. In other words, we argued that Louisiana needed only to have a legitimate government interest for passing its admitting privileges statute. 

In this case, Louisiana clearly has a legitimate interest in protecting women. There are a number of documented cases in Louisiana where women suffered adverse health consequences because their abortion providers were unqualified to provide a continuity of care as they were transferred to a hospital after suffering complications from their abortions. Louisiana’s law was aimed at protecting women who suffered from such complications—a commonsense, legitimate government interest.

How did the Court reach this decision? 

The Court primarily relied on the ruling in Whole Woman’s Health v. Hellerstedt, which ruled that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid.” The Louisiana law closely mirrored the Texas law at issue in Hellerstedt. In that case, the Court held that the Texas law had the effect of limiting access to abortion in Texas and created what the Court called a “substantial obstacle.” Here, the majority similarly concluded that because the Louisiana law would restrict access to abortions, it created a substantial obstacle on women seeking abortions. 

Chief Justice Roberts wrote a separate opinion where he concurred in judgement but not in the reasoning offered by the Court. Chief Justice Roberts relied heavily on the doctrine of stare decisis, or respecting the prior precedent of the Court in reaching his decision. Although Chief Justice Roberts dissented in Hellerstedt, he nevertheless argued that Hellerstedt should be respected as a past precedent issued by the Court.

What is the significance of this case? 

Unfortunately, the Court’s opinion in June Medical Services v. Russo means that states still face significant limitations on regulating the abortion industry. Their lobby now has one more court decision to reinforce the argument that because new regulations may reduce the availability of abortion clinics it therefore imposes an undue burden on the so-called right to the procedure.

This case will affect the pro-life movement’s state legislative and litigation strategy as well. However, as Russell Moore reminds us, “We will continue to seek an America where vulnerable persons, including unborn children and their mothers, are seen as precious, not disposable.” Patients ought to be protected before profits, and we will continue to work toward that goal.

ERLC interns Julia Stamper, Sloan Collier, and Seth Billingsley contributed to this article.

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24