Symposium: Hanging in the balance

Gillian Metzger is Stanley H. Fuld Professor of Law at Columbia Law School.

For nearly a quarter-century, Planned Parenthood v. Casey has governed constitutional scrutiny of abortion restrictions. Over that time, it has emerged as foundational to the Supreme Court’s contemporary substantive due-process jurisprudence. Yet lower courts continue to disagree over its import in practice, with some courts like the Fifth Circuit here reading Casey to sustain health regulations that eviscerate basic access to abortion.

Whole Woman’s Health v. Cole presents the Court with a welcome chance to reaffirm Casey’s principles and clarify its analytic demands. Critical to Casey is the idea of balance. Balance runs throughout the Casey joint opinion, infusing its analysis on at least three distinct levels.

First, the Casey joint opinion identified balancing as the essence of substantive due-process analysis. Insisting that substantive due process inescapably requires the Court to exercise reasoned judgment, the joint opinion embraced Justice John Harlan’s evocative description of substantive due process as an evolving balance: “[T]he balance which our Nation . . . has struck between liberty and the demands of organized society, . . . having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.”

Second, as the Court itself later stated in Gonzales v. Carhart, Casey “struck a balance” between the interests of the woman and the state. Casey recognized that the decision about whether and when to have a child is central to a woman’s dignity and autonomy. Casey thus reaffirmed that women have a constitutionally protected right to choose to end a pregnancy prior to viability. Yet Casey also underscored that the state has an important and legitimate interest in expressing its support for potential life and in protecting maternal health. According to the Casey joint opinion, these competing interests must be balanced in a more thoroughgoing fashion than strict scrutiny and Roe’s trimester approach allowed.

And third, the mechanism that Casey laid out for achieving this balance of interests was an analysis that evoked balancing by its very name: “the undue burden standard.” As defined in the joint opinion, “[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.” As the joint opinion explained, this standard placed limits on the means and extent to which the state could advance its interests. In particular, prior to viability a state can only seek to advance its interest in potential life through “means . . . calculated to inform the woman’s free choice, not hinder it.”

Put differently, measures that “do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted.” But measures that go further and substantially impede women’s free choice are not. The mechanism the state uses must be balanced to protect all the interests at stake.

Since Casey, the Court has repeatedly embraced Casey’s understanding of substantive due-process analysis as requiring courts to chart an evolving balance between individuals and the state. Last Term’s decision in Obergefell v. Hodges put any doubts on this score to rest, echoing Casey’s call for reasoned judgment and rejecting efforts to circumscribe due-process liberty and reduce it to specific historical manifestations.

Casey’s second balance – its recognition that the interests of the state must be taken into account in a way that protects women’s constitutionally protected right to decide whether and when to have a child – is sometimes more honored in the breach. A case in point is the Fifth Circuit’s decision below, which as Mike Dorf notes, makes the astonishing claim that abortion regulations made in the name of women’s health do not trigger heightened scrutiny at all. Another example is the Court’s decision in Gonzales, which seemed grudging in its acceptance of Casey and gave voice to an account of women needing protection from their own decisions that stands in tension with Casey’s insistence on respecting women’s equal dignity and autonomy. Nonetheless, Gonzales expressly invoked Casey’s second balance as central and applied it; the decision reflected the fact that the Court believed the partial-birth ban at issue had only a minimal impact on women and that impact was clearly outweighed by the significant life interest it saw as being at stake.

Casey’s third balance, however, is a source of ongoing dispute. Several courts – including the Seventh and Ninth Circuits, the Iowa Supreme Court, and district courts in Texas and Alabama – insist that the undue-burden standard demands judicial inquiry into whether abortion regulations purportedly seeking to protect women’s health actually have that effect. On this view, a court must weigh the burdens imposed against the health benefits actually achieved. As Judge Richard Posner reasoned for the Seventh Circuit, “[t]he feebler the medical grounds … the likelier is the burden on the right to abortion to be disproportionate to the benefits and thus excessive,” unnecessary, and undue. The Fifth Circuit, by contrast, adamantly rejects such a balancing inquiry and insists that courts must assess health regulations on their face, a view which the Fourth and Sixth Circuits appear to share.

The Fifth Circuit’s refusal to weigh an abortion health regulation’s actual benefits and burdens is incompatible with Casey. Such balancing is evident in Casey’s discussion of Pennsylvania’s reporting requirements, the lone health regulation the joint opinion considered, in which the court emphasized the importance of data to health research and the nominal burden imposed. Balancing is also present with respect to Casey’s assessment of regulations aimed at expressing the state’s respect for potential life. Implicit in the Court’s rejection of spousal notification while upholding parental notification, despite the requirements’ similar effects, is its conclusion that the state’s interest in spousal notification was illegitimate and unable to justify the burdens imposed. Although I previously critiqued the Casey joint opinion for not engaging more thoroughly in balancing, a more accurate description is that Casey balanced informally. This informal balancing reflects the communicative and expressive aspect of life regulations, which makes them less dependent on real-world effects to achieve their goals.

Also instructive here is Casey’s very embrace of an “undue burden” standard and rejection of “unnecessary” health regulations. As the Seventh and Ninth Circuits recognized, determining if a burden is “undue” requires assessing the extent to which it actually advances the state’s interests and whether it imposes an unnecessary burden to do so. Undue-burden standards in other areas of constitutional jurisprudence entail just such a balancing of harms and benefits. Tellingly, constitutional analysis of ballot-access restrictions, to which the Casey joint opinion expressly analogized, employs a balancing approach under which a restriction must be justified by state interests “sufficiently weighty to justify the limitation.”

Perhaps most important, the undue-burden test’s purpose inquiry is rendered toothless absent some investigation into a measure’s comparative benefits and burdens. In a wide array of constitutional contexts – ranging from the First Amendment’s speech and religion clauses, to Fourteenth Amendment equal protection and due process, to the dormant Commerce Clause – examination of how well a measure fits its stated goals is a prime means by which courts identify improper governmental purpose.

Given the severe impact of the regulations at issue in this case, the Court can invalidate based on effects alone, without addressing the scope of the undue-burden test’s purpose inquiry or the necessity of balancing. The district court found that these regulations – one requiring that all abortion physicians have admitting privileges at a nearby hospital and the other that abortion providers be licensed as ambulatory surgical centers – would reduce the number of licensed abortion providers from more than forty to eight. That translates into an seventy-five percent closure rate statewide and a one-hundred-percent closure rate for all clinics south and west of San Antonio, a good half of the state. If those effects do not constitute a substantial obstacle for women seeking abortions, the concept of substantial obstacle has no recognizable meaning.

Yet deciding this case solely on grounds of effects would be a lost opportunity. Instead, the Court should reaffirm Casey’s commitment to balancing and prohibitions on improper purpose. Despite their ostensible health justification, Texas’s regulations have nothing to do with health; indeed, if anything they will harm women’s health by creating delays that force women to have later and riskier abortions or to resort to illegal abortion. The Court should make clear that Casey’s careful balancing cannot be evaded by such subterfuge.