SCOTUS Whole Woman’s Health Decision: Casey Endures

Jane S. Schacter 1
Jane S. Schacter, the William Nelson Cromwell Professor of Law at Stanford Law School

A whole body of legal scholarship that travels under the name of “law and society” is devoted to studying the difference between the “law on the books” and the “law in action.” The last 25 years of fights about a woman’s constitutional right to abortion have provided a stark example of this difference. In a landmark opinion, Whole Women’s Health v. Hellerstedt, the Supreme Court weighed in and took some important steps toward better aligning its decisions (“the law on the books”) with the reality of what is going on in the country (“law in action”). Its bottom line: The Constitution continues to impose real and meaningful limitations on laws limiting access to abortion and courts must take a meaningful look at the reasons given by a legislature for regulating in this area.

The case arises from two Texas laws that had the effect of dramatically shrinking the number of abortion clinics available to women in the state. The first required physicians performing abortions to have admitting privileges at a nearby hospital. The second imposed on clinics the onerous building requirements that ambulatory surgical facilities must satisfy. The Court’s opinion today took a deep dive into the evidence assembled by the trial court and said there was no real justification for either one. There was, in short, no safety problem with abortions in Texas that required a solution that would shut down scores of clinics. As Justice Breyer pointedly  noted in the opinion, “when directly asked at oral argument whether Texas knew of a single instance in which the new [admitting privileges] requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evi­dence in the record of such a case.”

The lack of evidence to support the Texas laws was not a surprise to many observers. These regulations, like those of many states that similarly oppose abortion, are part of what is commonly called “Targeted Regulation of Abortion Providers” or TRAP laws. It is well understood in politics that TRAP laws are designed by those who passionately oppose abortion to decrease the number of abortions. But, because ideological opposition to abortion is not a legitimate legal argument, these laws are defended in court on other bases. In this case, the state said it sought to protect women’s health. The question before the Court—as in so much of constitutional law—was what standard of review courts should employ in assessing state justifications for laws that curtail abortions.

The most important thing to come out of Whole Women’s Health is greater clarity about this standard. As of today, we know that states cannot get by with suggesting regulatory justifications if those reasons have no basis in evidence.

A little background should help to put the clarified standard in perspective. In 1992, nearly two decades after the Supreme Court extended constitutional protection to abortion in Roe v. Wade, the Court seemed poised to overturn Roe.  With several Reagan and (George H. W.) Bush appointees on the Court and after years of battle on the issue, Planned Parenthood v. Casey tested strict new limits on access to abortion in Pennsylvania and was widely seen as a showdown moment. To the surprise of some, Casey did not overrule Roe, but did replace it with a standard that was designed to give states more latitude to regulate abortion. Instead of Roe’s strict scrutiny (the toughest legal standard) for regulation in the first two trimesters of pregnancy, Casey said the Court would not permit any “undue burdens” in the path of women seeking an abortion before fetal viability. An undue burden, said the key opinion in Casey, is “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.” This new standard was a middle path. Had the Court overruled Roe entirely, that would have meant states could regulate largely as they wished and would be reviewed under the “rational basis” test that typically functions as a rubber stamp on government action. Importantly, Casey’s undue burden standard weakened Roe, but it did not go so far as to substitute the notoriously-toothless rational basis standard.

Over the years, however, the “rational basis” test crept in through the back door. Many lower courts began assessing the justifications that states offered for TRAP laws under that maximally deferential standard, and then applying a separate—and diluted—version of the undue burden test. Unsurprisingly, a court that thought it was obligated to accept any conceivable purpose a state asserted for regulating was far less likely to then find a burden on abortion rights to be “undue.”  This development had the effect of encouraging TRAP laws and making the law of abortion much more like it would have been if, in fact, the Casey court had overruled Roe in 1992.

Justice Breyer’s opinion for a 5-justice majority in Whole Women’s Health is an explicit course correction. The forgiving rational basis test, the Court said, has no role in Casey’s undue burden inquiry. To opponents of abortion who had found support for that deferential approach in Gonzales v. Carhart, the Supreme Court’s 2007 decision upholding the federal ban on “partial birth” abortion, the Court said: such a conclusion misreads Gonzales. Further, states like Texas that say they are regulating abortion to protect women’s health must be able to point to actual health benefits for women, and courts should independently assess this evidence—and not simply accept unsupported assertions—as part of the undue burden inquiry. On this key point, Texas faltered. The majority essentially found that the law was all burden—closing scores of clinics—with little or no actual benefit at all to women. And, as Justice Ginsburg succinctly observed in her brief concurrence, laws like these laws may actually harm women’s health because “women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”

The decision plainly affirms that Casey did not overrule Roe, but it will not eliminate further questions about the boundaries of regulatory authority in this area. “Undue burden” is, after all, a balancing test and a standard, not a bright line rule. Justice Thomas pressed this critique of the test in his dissent. But the Court also went  further than it might have. In recent abortion cases, for example, the Court has preferred as-applied challenges (individual lawsuits that test the constitutionality of laws in particular circumstances) to facial ones (laws that test the constitutionality of laws in any circumstances). Whole Women’s Health facially invalidated the Texas laws. It also dispensed with the remand for further fact-finding that some had anticipated. The signal from the Court seems clear: The law on the books has not, in fact, been overtaken by the law in action. The constitutional right recognized in Casey endures.

Jane S. Schacter is the William Nelson Cromwell Professor of Law at Stanford Law School.