Weighing Benefits and Burdens for Abortion and Guns Rights

  • Date:
  • March 06, 2020

This week, the Supreme Court heard oral argument in June Medical v. Gee. I’ve written before about some of the parallels I’ve perceived in the debates over reproductive rights and firearm rights, and this case raises some new ones for me. As Amy Howe wrote for SCOTUSBlog, the questioning at oral argument focused on whether the law provided any benefits and what burdens it imposed. Might there be some clues in these arguments for how the justices are likely to approach an issue with a much different political valence?

In June Medical, the petitioners challenge a Louisiana law requiring abortion providers to have hospital admitting privileges. In the words of petitioners’ counsel during argument, the law “impose[s] barriers to abortion with no benefit to patients.” As she emphasized in response to questioning, “the burdens of a law may vary, but a law that has no benefits and doesn’t serve any valid state interest is much more likely to impose an undue burden.” In other words, at least part of the argument was that even a minimal burden is undue—and constitutionally impermissible to impose—if a law offers none of the benefits that purport to advance the state interest. There are some suggestions from his questions that Chief Justice Roberts may agree with the challengers.

I can’t help but see a parallel here to Justice Alito’s questioning during NYSRPA. In the short discussion of the merits question concerning New York’s regulation imposing restrictions on transporting one’s firearms, he asked the City’s counsel if “the Second Amendment permits the imposition of a restriction that has no public safety benefit.” In other words, could a burden on one’s right to keep and bear arms that offers no countervailing benefits be constitutional? One has to wonder whether the justices’ views of the underlying right are shading their views of the regulatory tradeoffs. (Of course, as Joseph Blocher and Reva Siegel have written, there may be other state interests in regulating firearms beyond public safety.)

To be sure, courts do not typically use—at least in these terms—the “undue burden” test to assess the constitutionality of gun regulations. (Though I've written about commentators and advocates' attempts to urge courts to do so.) But courts have looked to the burdens imposed by a law in considering compliance with the Second Amendment. For example, in a recent Third Circuit case concerning large-capacity magazine bans, the court selected the appropriate standard of review only after looking to what kind of burden the law imposed. It listed five reasons why such a ban “does not severely burden the core Second Amendment right to self-defense in the home” and thus selected intermediate scrutiny. But, in dissent, Judge Stephanos Bibas challenged an assessment of the burden for this purpose. “How much the law impairs the core or how many people use the core right that way does not affect the tier of scrutiny.” Thus, in his view, “like any other law that burdens a constitutional right’s core, this law warrants strict scrutiny.”

In the Second Amendment context, the battle over burdens and benefits and what they mean for constitutional scrutiny is likely to continue no matter what the Court does in NYSRPA. But the Court’s decision in June Medical might shed some light on how courts should assess laws that impose restrictions on a constitutional right and offer few (if any) benefits.