The Supreme Court’s recent grant of certiorari in Whole Women’s Health Center v. Cole gives the Court its first opportunity in years to clarify the scope of a woman’s right to have an abortion. In its dramatic 1992 decision in Planned Parenthood v. Casey, the Supreme Court famously declined to overrule Roe v. Wade and reaffirmed that the due process clause protected the right of women to choose to terminate a pregnancy. At the same time, however, Casey explicitly weakened Roe’s constitutional protection. In a joint opinion written by Justices Kennedy, O’Connor and Souter, Casey imposed a new, less demanding standard in lieu of the strict scrutiny Roe had applied to the core right. The state may not place “undue burdens” on the abortion right before viability, said the Court. From the outset, this “undue burden” test has been elusive and enigmatic. By what metric should courts determine whether a regulation is not only burdensome, but “unduly” so? Worse, the Casey joint opinion seemed to contain commands at cross-purposes with one another. On the one hand, the Court said that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” On the other hand, the Court said that, as a way “to promote the State’s profound interest in potential life,” the state may try “to persuade the woman to choose childbirth over abortion.” Deliberate efforts by the state to persuade a woman not to terminate a pregnancy might, after all, seem like the very sort of “obstacles” Casey condemned.
Whole Women’s Health Center will test the constitutionality of a Texas law enacted in 2013 that requires abortion clinics to meet the building standards that apply to ambulatory surgical centers and requires doctors performing abortions at clinics to have admitting privileges at a hospital within 30 miles of the clinic. Texas justified these rules as protecting women’s health, but a federal trial judge, after hearing evidence, was not persuaded. He found the rules not medically necessary, and held that they constitute undue burdens forbidden by Casey. The Fifth Circuit reversed his ruling, and, with very limited exceptions, gave Texas a green light to pursue these policies—policies that are expected to result in the closure of some 75% of the state’s clinics and to leave a large swath of the state with no clinic at all.
Beyond answering the specific question posed in the Texas case, the Court—and especially its swing voter, Justice Kennedy—will be positioned to clarify Casey if a majority so chooses. When Justice Kennedy and his then-colleagues announced the undue burden test in 1992, it was not an established part of the apparatus of constitutional law. The test seemed to fall somewhere between the strict scrutiny employed in Roe and the type of forgiving “rational basis” review that would have applied had Roe been overruled in its entirety. It is worth contemplating what the world of abortion regulation would have looked like had the Casey court, in fact, overruled Roe. Presumably, it would have meant that states could regulate abortions like they regulate so much else–with no meaningful judicial review under the notoriously toothless rational basis standard. That standard requires strong judicial deference to legislative judgments and imposes on states no need to defend a regulation with actual facts or evidence so long as a “conceivable” basis can be cited, even if that basis is a creature of a government lawyer’s imagination and is thought up well after the regulation was enacted. To state these features of ordinary rational basis review is to understand why the government virtually always wins when it is employed in due process or equal protection cases.
The Court has not, of course, overruled Roe, nor said that ordinary rational basis review should be used in the context of abortion regulation. But the Whole Women’s Health case shows why Casey’s undue burden test risks sliding closer to ordinary rational basis review. As courts have reviewed the tidal wave of abortion regulations passed in recent years by state legislatures opposed to abortion, they have had to work through conflicting medical and scientific evidence about whether a given restriction is actually needed to protect women’s health. This medical-necessity inquiry is a crucial part of Casey, which said specifically that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle” are unconstitutional. Whether a regulation has medical justification and whether it places an obstacle in the way of a woman seeking an abortion are separable, but heavily intertwined, parts of the inquiry. That natural linkage raises a question at the heart of Whole Women’s Health: In doing the crucial sorting between necessary and unnecessary health regulations, how closely or deferentially should courts review the key facts on medical necessity? The lower courts are split on this, but some–including the Fifth Circuit in the Texas case–have said that a reviewing court should apply the deferential “rational basis” standard in deciding this question. And these courts have said they need not balance medical need against the burden imposed on women.
If the Fifth Circuit has this right, and evidence that bears critically on whether a regulation is medically necessary gets no close look from the courts, then Casey will turn out to contain far less protection than what Justice Kennedy and his colleagues suggested in 1992. If so, “undue burden” will begin to morph into a version of rational basis review. Indeed, the last time the Roberts Court issued a major abortion case, it provided some support for a narrow reading of Casey along these lines, albeit in the arguably sui generis context of so-called “partial birth abortion” (or intact dilation and extraction). In that case, the 2007 decision in Gonzales v. Carhart, the Court upheld a congressional statute banning that method of abortion and containing no exception (as had been previously required) to protect women’s health. While this procedure was utilized only in relatively rare medical circumstances, and its ban therefore has not affected a large number of women, two aspects of the ruling could have significant implications. First, in assessing the medical evidence for allowing doctors to use the disputed procedure in certain medical circumstances, the Court said great deference is due to state legislatures and Congress “in areas where there is medical and scientific uncertainty.” Second, the Court itself framed the law as protective of woman. By shielding women from later “regret” about abortion, the Court provocatively said, the ban served a valid interest. Together with its deference to legislative beliefs about medical matters relating to abortion, this reliance on justifications framed in terms of women’s interests might portend a positive outcome for Texas requirements. The admitting privileges and surgical center requirements were justified by the state in just these terms, as have been a growing and diverse set of regulatory requirements passed around the country in recent years.
Perhaps, though, Whole Women’s Health will present an occasion for the Court—and especially Justice Kennedy—to reflect on Casey outside the unique context of partial birth abortion. The Texas case might prompt the Court to take stock and to remember what lay at Casey’s core: a commitment to respecting the autonomy of women to make reproductive choices as part of what the opinion said was the ability of women “to participate equally in the economic and social life of the nation.” In declining to overrule Roe, Casey eschewed the idea of deferential rational basis review for abortion. A case like Whole Women’s Health places that commitment in doubt. In it, a state has imposed regulations that pose an unmistakable obstacle to abortion by threatening to close 75% of abortion clinics in the state and leaving many women hundreds of miles away from a safe abortion. As much as the Texas regulations, the vitality of Casey itself is on the line in the case.