Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at dorfonlaw.org.

Dissenting in Planned Parenthood v. Casey, Chief Justice William Rehnquist claimed that the controlling joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter rejected two key features of Roe v. Wade: abortion was no longer a “fundamental right,” and abortion restrictions were no longer subject to strict scrutiny, the late Chief Justice said. Following his lead, some scholars and lower court judges reason that the Casey joint opinion’s undue burden standard – which was subsequently employed by a majority of the Supreme Court – effectively demotes abortion from the status of fundamental right to something less.

Just how much less is illustrated by the opinion of the U.S. Court of Appeals for the Fifth Circuit now under review by the Supreme Court in Whole Woman’s Health v. Cole. In the view of the Fifth Circuit, when the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart, it equated the undue-burden test with rational-basis scrutiny, the most permissive standard of review known to constitutional law.

That conclusion is wrong. The Casey dissenters thought that abortion regulations should be subject only to rational-basis scrutiny. A majority of the Court rejected that view. Although Casey and other post-Casey cases contain some confusing language, taken as a whole, these cases are best read as preserving the status of abortion as a fundamental right.

Seeing how Casey leaves heightened scrutiny intact for many abortion restrictions in turn sheds light on an otherwise mysterious aspect of that ruling’s articulation of the undue-burden test – the notion that a law can be an undue burden if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” (emphasis added). The Court has not yet had occasion to apply the purpose prong of Casey, but this case presents the issue squarely.

The rise and fall of the language of fundamental rights

Constitutional law hornbooks and bar exam review materials present students with a straightforward formula. Most infringements on substantive liberty are subject only to the permissive rational-basis test, but a small set of rights – whether expressly enumerated by the Bill of Rights or recognized pursuant to the doctrine of substantive due process – are fundamental. Infringements on fundamental rights can only survive if they satisfy strict scrutiny – that is, if they are narrowly tailored to serve compelling government interests.

Yet the cases in the U.S. Reports were never quite as simple as that. Further, in roughly the last quarter century, the Supreme Court has continued to defy the simplifiers.

Most constitutional law scholars recognize the added complexity in the parallel area of equal protection. By the mid-1970s, the hornbooks and bar review materials had settled on the view that there are three levels of scrutiny: strict scrutiny for suspect classifications; rational-basis scrutiny for non-suspect classifications; and intermediate scrutiny for what were sometimes called quasi-suspect classifications. But the case law also recognizes what is sometimes called “rational basis review with bite” (or “teeth”) for laws based on “animus,” and a somewhat more forgiving form of strict scrutiny – one that is not always “fatal in fact” – for race-based affirmative action programs in higher education. (The latest version of Fisher v. University of Texas at Austin may reveal whether that last standard remains distinctive.)

Something similar has long been true with respect to fundamental rights. For example, in Plyler v. Doe, the Court treated education (at least when supplemented by concerns about the supremacy of federal law) as a quasi-fundamental right. Although Plyler was an equal protection case, it concerned the fundamental rights branch of equal protection doctrine, and thus had potential implications for fundamental rights in substantive due process cases as well.

Beyond the proliferation of levels of scrutiny in both equal protection and substantive due process cases, the more recent precedents sometimes display changes in phrasing. Most prominently, in Lawrence v. Texas, the majority opinion did not expressly state that the Texas law forbidding same-sex sodomy infringed on a fundamental right. That reticence led to some disagreement in the lower courts about such matters as whether laws restricting adults’ access to sex toys trigger heightened scrutiny.

Nonetheless, Laurence Tribe is almost certainly correct in reading Lawrence as protecting a fundamental right under a slightly different name. As he explained shortly after the decision, the Lawrence Court cited prior fundamental rights rulings and even “invoked the talismanic verbal formula of substantive due process but did so by putting the key words in one unusual sequence or another.” Tribe pointed to this language from the Lawrence opinion: “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.” (Emphasis added.)

In other words, abortion is a fundamental right. Notably, that statement appeared in a case decided four years after Casey in a majority opinion written by one of the authors of the Casey joint opinion.

The domain of the undue-burden test

If abortion remains a fundamental right, why does the relatively permissive undue-burden test apply to abortion regulations? That question contains within it a basic misunderstanding of how Casey modified Roe, and – more importantly – how it did not.

Casey did not disturb what the joint opinion called the central holding of Roe: government may not ban abortion prior to fetal viability, and – even after viability – government must allow abortions needed to preserve the health or life of the pregnant woman. These propositions could not possibly be true if Casey simply demoted abortion to the sort of mere “liberty interest” that may be infringed so long as the restriction is rationally related to a legitimate government interest. After all, the Casey joint opinion itself recognized a “substantial state interest in potential life throughout pregnancy,” and surely an abortion ban would be a rational means of serving that interest. Yet precisely because abortion remains a fundamental right, only a very strong interest may warrant overriding it, and – adhering to Roe on this point – the Casey joint opinion made clear that the state’s interest in fetal life is not sufficiently strong until viability.

It is commonplace to say that Casey “substituted” the undue-burden test for the Roe trimester framework, but that is not accurate. Casey displaced the trimester framework, but the undue-burden test only applies in a limited domain. As Linda Greenhouse and Reva Siegel (also contributors to this symposium) explain in a forthcoming article in the Yale Law Journal, the undue-burden test allows a certain kind of abortion regulation that post-Roe cases disallowed – what the Casey joint opinion called “persuasive measures” such as waiting periods – so long as they do not unduly burden the abortion right.

Heightened scrutiny of ostensible health regulations

Neither of the provisions of the Texas law at issue in this case can be fairly characterized as aiming at persuasion, and the state does not attempt to so characterize them. Instead, the state argues that the hospital admitting-privileges requirement and the ambulatory surgical-center requirement aim to protect the health of women seeking abortions. What standard of judicial scrutiny applies to such laws?

Casey did not significantly alter Roe’s approach to health measures. In Roe, the Court acknowledged the state’s “important and legitimate interest in preserving and protecting the health of the pregnant woman.” The Casey joint opinion quoted that language but then went on to complain that the trimester framework did “not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life.” Notably, the Casey joint opinion did not find fault with the Roe framework’s treatment of ostensible health measures.

Moreover, in summarizing its holding in a five-part test, the Casey joint opinion stated: “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

The very idea of a law that constitutes an “unnecessary” health regulation with the “purpose” of imposing obstacles to abortion rules out rational-basis scrutiny of the sort applied by the Fifth Circuit. After all, a law satisfies traditional rational-basis scrutiny if it is possible to imagine a set of facts in which it would advance legitimate goals – and it is possible to imagine that virtually any law promoted on health grounds promotes health.

By acknowledging the possibility of an unnecessary health regulation, the Casey joint opinion unmistakably signaled that courts should look behind asserted health justifications to investigate how abortion restrictions actually function. A law could be a measure designed for the purpose of frustrating access to pre-viability abortion even if it were disguised as a health measure. The use of “unnecessary” and “purpose” in a single central sentence in Casey thus invites close judicial scrutiny of how ostensible health measures actually function.

Throughout constitutional law, purpose tests can be criticized for asking courts to discern something unknowable: legislative purpose. Such complaints have some purchase against subjective purpose tests, but they miss the mark when aimed at objective purpose tests. Luckily, we have at the ready a serviceable mechanism for discerning objective legislative purpose, one that does not require judges to pore over contested legislative history. The mechanism is heightened scrutiny, which, as O’Connor explained in the equal protection context, serves to “smoke out” an illicit purpose by testing whether the challenged law is in fact tailored to a permissible one. Likewise, Judge Richard Posner’s opinion for the U.S. Court of Appeals for the Seventh Circuit in a recent Wisconsin case nicely illustrates how a court can infer a legislative purpose simply to frustrate women seeking to obtain abortions, while relying only on the objective evidence of how a law operates.

In neither Casey nor the post-Casey abortion cases has the Court confronted a law that was justified on the ground that it protected women’s health. (The “partial-birth” abortion cases involved laws said to protect the dignity of human life and to preserve the distinction between infanticide and abortion, with health concerns being invoked to challenge them.) However, the Casey joint opinion favorably cited Doe v. Bolton as an example of a case in which the Court properly applied the portion of Roe that Casey left undisturbed. Tellingly, Doe invalidated a hospitalization requirement that bears more than a passing resemblance to the laws challenged in this case.

Several Justices of the Supreme Court undoubtedly would like to overrule Roe and Casey. However, any fair-minded attempt to apply those decisions must subject the challenged provisions of Texas law to heightened judicial scrutiny as pretextually defended infringements on the fundamental right to abortion. The only real question in this case is the one that Charles Black saw at issue in Brown v. Board of Education: whether “the Court, as a Court, can permissibly learn what is obvious to everybody else and to the Justices as individuals.”

Posted in Whole Woman’s Health v. Hellerstedt, Featured, Whole Woman's Health v. Cole symposium

Recommended Citation: Michael Dorf, Symposium: Abortion is still a fundamental right, SCOTUSblog (Jan. 4, 2016, 11:28 AM), http://www.scotusblog.com/2016/01/symposium-abortion-is-still-a-fundamental-right/