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Symposium: No more rubber-stamping state regulation of abortion

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.

In a huge win for women’s liberty, equality, and dignity, the Supreme Court today reaffirmed that the Constitution protects a woman’s right to choose abortion and held that courts have an obligation to carefully review state regulation of abortion to ensure that it respects the Fourteenth Amendment’s guarantee of liberty for all. Overturning a ruling by the Fifth Circuit, which had rubber-stamped Texas laws that would have closed abortion clinics across the state, Justice Stephen Breyer’s majority opinion made clear that courts have an obligation to strike down as unconstitutional state laws that burden women’s access to abortion without any convincing justification.   This kind of careful review has long been required when states burden fundamental constitutional rights. Today’s ruling applies this same basic principle to the right to choose abortion, striking down state efforts to subject that right to a death by a thousand cuts. Significantly, Justice Anthony Kennedy – who had only once before voted to strike down a state law regulating abortion – joined the majority in full.

Breyer’s majority opinion makes three key holdings, affirming the vital role courts play in ensuring that states respect the fundamental constitutional principles of liberty, equality, and dignity.

First, the majority held that the “undue burden” standard announced in Planned Parenthood v. Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer,” and that the Fifth Circuit had applied the wrong standard in rubber-stamping state laws that would shutter abortion clinics across the state of Texas. The Fifth Circuit had employed the rational-basis test in judging whether the law served any state interest – the standard that the dissent in Casey had urged – and the majority today held that standard was inadequate to protect women’s liberty under the Fourteenth Amendment.   The Fifth Circuit, Breyer explained, was “wrong to equate the judicial review of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.” In other words, the right to choose abortion is a fundamental aspect of liberty, requiring that courts carefully review efforts to burden that liberty.

In dissent, Justice Clarence Thomas insisted that that the Court must abide “by one set of rules to adjudicate constitutional rights,” but the majority’s ruling helps serve this goal. It ensures that when courts adjudicate laws that burden the right to choose abortion – no less than other fundamental rights – they will carefully review the evidence to ensure that the law actually advances the interests asserted by the government. That’s a hugely important holding that will ensure that states do not flout fundamental protections for liberty and dignity.

Second, Breyer’s majority opinion held that Texas’s admitting-privileges and surgical-center requirements imposed an undue burden on the right to choose abortion, and violated the Fourteenth Amendment’s protection of personal liberty. As Breyer summed up, “the challenged provisions of H.B. 2 close most of the abortion facilities in Texas and place added stress on those facilities able to remain open. They vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.” In reaching this conclusion, the majority stressed that Texas had improperly singled out abortion providers for harsher, medically unnecessary regulation without any good reason. In a short concurring opinion, Justice Ruth Bader Ginsburg emphasized this as well, explaining that “Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection.”

Third, the majority held that when states enact clinic shutdown laws, courts should invalidate them as a whole, forbidding the state from enforcing them. This remedy – facial invalidation – protects women’s liberty and equality and keeps the court out of the business of rewriting the law.   Texas had argued that the Court should leave the statute in place, and merely remove any unconstitutional applications of the law, but the majority rejected that approach as insufficiently protective of women’s fundamental rights. “We reject Texas’ invitation to pave the way for legislatures to immunize their statutes from facial review.” The message was plain: when states impose unnecessary burdens on the right to choose abortion, courts should strike them down root and branch.

The dissents in the case – one written by Thomas, and one by Justice Samuel Alito that was joined by the Chief Justice and Thomas – are notable both for what they say and do not say.

Thomas – speaking only for himself – lashed out at the majority for protecting what Thomas called the “putative right to abortion,” complaining that the “Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.” In case there were any doubts, Thomas wrote, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” Thomas’s complaint that the right to abortion finds no footing in the Constitution is not a new one, and as in past dissenting opinions, Thomas ignores that the Fourteenth Amendment was written to establish broad protections of substantive liberty – not limited to the specific rights enumerated elsewhere in the Constitution – to ensure equal citizenship for all. The Fourteenth Amendment’s Framers took as their north star the principles of the Declaration of Independence, seeking to ensure the protection of inalienable rights for all, including rights to bodily integrity and marriage long denied to the slaves. Breyer’s majority, not Thomas’s dissent, far better captures the broad scope of personal liberty the Fourteenth Amendment secures to all.

Thomas – surprisingly – was alone in voting to uphold Texas’s onerous laws as constitutional. Alito’s dissent did not conclude that the Texas laws were constitutional; instead, he would have dismissed the case under principles of res judicata. And tellingly, although Alito did discuss the merits of the case, his dissenting opinion offers no answer to the majority on some of the biggest issues in the case. Alito’s opinion does not contest the majority’s holding that the Fifth Circuit erred in applying the rational basis review, and only half-heartedly makes the case that the Texas law serves a health-related interest, asserting only that the law “was intended to force unsafe facilities to shut down.” Indeed, his dissent gives no response to the majority’s detailed showing that Texas’s draconian restrictions “provide[] few, if any, health benefits for women.” Instead, Alito’s main argument on the merits was that the plaintiffs had not proved their case that the laws had caused clinics to close or that existing providers would be unable to increase capacity. Indeed, Alito even admitted that women who, as a result of H.B. 2, live more than 150 miles away from a clinic would have a right to bring an as-applied challenge. This is hardly the ringing endorsement of Texas’s clinic closing laws that one might have expected the Court’s conservatives to mount.

Our constitutional system designed by the Framers more than two centuries ago depends on the courts to vindicate individual rights and ensure that majorities respect fundamental rights. Today’s opinion reaffirms the critical role courts must play in protecting the rights of all.

Recommended Citation: David Gans, Symposium: No more rubber-stamping state regulation of abortion, SCOTUSblog (Jun. 27, 2016, 5:15 PM),