The anti-democratic incoherence in the Supreme Court’s latest abortion decision makes one wonder just how much longer the American people are going to stand for this sort of thing.
In the wake of a horrific Pennsylvania abortion scandal, several states passed laws toughening restrictions on abortion providers. Among those states was Texas. One provision of the Texas law required abortion clinics to meet standards imposed on ambulatory surgical centers. Another required each abortionist to obtain admitting privileges to a hospital within 30 miles of his clinic. Whole Woman’s Health v. Hellerstedt dealt with a challenge to those two provisions.
Some necessary background: In 1992, a plurality of the Supreme Court issued an opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. Like so many of the Supreme Court’s social issues opinions (see here and here), this one was pretentious and confused and provided little in the way of coherent or justifying law.
The plurality opinion in Casey stated that if a restriction imposed an “undue burden” on a woman’s right to abort a pre-viability fetus, the restriction is unconstitutional. The plurality wrote that “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.” Thus, the undue burden test was about both the legislative goal (“purpose”) and the legislative means (“effect”).
In Whole Woman’s Health the majority of the justices found that the Texas statute imposed an undue burden. The majority opinion was written by Justice Stephen Breyer.
Strictly from a procedural point of view, there is much to quarrel about with the result. Specifically:
* Essentially the same plaintiffs had brought an earlier, unsuccessful, case on much the same grounds. Under principles of res judicata (which normally bars a second case on a matter previously adjudicated), the court probably should not have permitted the abortionists to re-litigate the issues.
* In the second case the plaintiffs had asked only that the court void the law as to them (“as applied), but the court struck it down as to all possible applications (“facially”).
*The court disregarded the Texas statute’s severability clause—thus voiding the entire measure rather than separating out its constitutional and unconstitutional portions.
But as Justice Thomas observed, at least this swift slicing through procedural barriers in service of abortion is consistent with the Court’s previous conduct in such cases. Less consistent was the decision on the merits.
Casey stated that each abortion regulation must have a “legitimate state interest”—also called a “legitimate governmental purpose.” This is the formula for testing the constitutionality of the legislative goals behind most laws. When a court recites that formula it almost always means the court defers to the legislature unless the legislative conduct is completely irrational. Generally the court does not second-guess the legislature unless the area of law is one in which the legislative purpose must be “substantial,” “important,” or “compelling.” The most common examples are First Amendment cases.
Justice Breyer did not hold that an abortion restriction must be substantial or compelling, but still applied searching judicial re-examination. He concluded that the Texas restrictions did not further the legitimate state interest of women’s health.
However, Casey also asserted states had legitimate interests in the life of a fetus, not merely in the health of a mother: “The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Yet Justice Breyer addressed only the woman’s health, not the state’s interest in fetal life.
He next turned to the “effect” prong of the undue burden test. Because a substantial number of abortion clinics had closed in the wake of the Texas law, he found that the restrictions did, in fact, have the “effect” of creating an undue burden. But his pronouncement on the subject was very broad. Casey had long been understand to mean that if the number of abortions drops appreciably, the law is unconstitutional-—that is, if abortion becomes more difficult for a large fraction of women. But Justice Breyer wrote that “the relevant denominator is “those [women] for whom [the provision] is an actual rather than an irrelevant restriction.” By this formula, a restriction imposes an undue burden if it makes abortion more difficult for even one woman!
Finally, although there are two separate prongs to the undue burden test, at times Justice Breyer seemed to be balancing them against each other rather than applying them separately. Under the circumstances, it is impossible to predict how the Court will next apply that test.
When considering these cases, one must keep in mind that the Constitution actually says nothing about abortion—and that the constitutional clauses used to justify those cases actually addressed very different issues.