What is the (Undue) Burden for Reversing Precedent? Analysis of June Medical Services v. Russo in a Newly Configured Supreme Court

Abstract

Supreme Court precedent can change, but the doctrine of stare decisis requires a nonarbitrary reason for a change in precedent. This Note argues that June Medical Services v. Russo does not present a nonarbitrary reason to change the precedent from Whole Woman’s Health v. Hellerstedt. If the Court does change this precedent, then it would signal a new era for the Court in which arbitrary reasons, like ideology, play a more significant role in the Court’s decision-making. In June Medical, the U.S. Supreme Court will determine the constitutionality of an abortion law virtually identical to one it held unconstitutional only four years prior. Louisiana’s Act 620, like Texas’s invalidated House Bill 2, requires physicians to obtain admitting privileges at a hospital near where they perform abortions. One difference this time is the state’s challenge to abortion providers’ third-party standing. The third-party standing challenge will likely, and rightfully, fail. The challenge is an audacious attempt that implicates decades of precedent in multiple areas of law. Thus, the Court should apply precedent from Whole Woman’s Health. Further, because June Medical is not materially different than Whole Woman’s Health, the Court should hold Act 620 unconstitutional. However, the other difference this time is the Court’s two new Justices. Both Justices were nominated by Republican President Donald Trump and confirmed narrowly by the Senate in often contentious proceedings. The new configuration of the Court means that if the Court invalidates Act 620, like it should, then the deciding vote would have to be cast by one of the new Justices or by one of the dissenters in Whole Woman’s Health. This rare combination of a newly configured Court confronting a nearly identical question recently answered by a previous Court promises to signal not only the Court’s view of abortion laws but also the Court’s approach to precedent.