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Symposium: The Court once again makes the “undue-burden” test a referendum on the facts

Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of After Roe: The Lost History of the Abortion Debate.

When the Supreme Court announced its decision in Planned Parenthood v. Casey almost twenty-four years ago, those on either side of the abortion conflict could not tell who had won. On the one hand, Casey clearly rejected the position taken by abortion-rights supporters throughout the litigation. Pro-choice attorneys had consistently argued that Roe v. Wade required strict judicial scrutiny of all abortion regulations. Whatever Casey had done, strict scrutiny was not it.

On the other hand, the meaning of the “undue burden” standard, the new controlling standard in abortion jurisprudence, was as clear as a helping of Justice Antonin Scalia’s “pure applesauce.” Did the “undue burden” test leave room for meaningful challenges based on record evidence? Or had Casey just dressed up rational-basis review?

Today’s five-to-three decision in Whole Women’s Health v. Hellerstedt finally offers some answers to these questions. Given the contradictory signals sent by the Court, it is no surprise that predictions about the outcome in this case, including my own, were all over the place. It was certainly possible to trace a path from Casey to today’s decision. Rhetorically, Casey seemed to be doing something very unlike the deferential, rational-basis review Texas described in Hellerstedt. The Court insisted that Casey had not overruled Roe’s essential holding, namely, that the right to choose abortion is a constitutionally protected liberty interest. If anything, the Court in Casey went out of its way to offer additional explanations about why abortion had to be a protected right. If the right to choose abortion still meant something, surely the “undue burden” test had to have teeth. That seemed to be particularly true in cases involving woman-protective laws like HB 2. After all, Casey had taken issue with Roe for demeaning the government’s interest in protecting fetal life, not the government’s interest in protecting women from abortion.

But it was not clear before today that the “undue burden” test would mean much of anything. Between Casey and Hellerstedt, the Court struck down a grand total of one abortion regulation, Pennsylvania’s spousal notification law. As importantly, in Gonzales v. Carhart, Justice Anthony Kennedy, a key vote in Casey, seemed to equate the “undue burden” test with deference to legislative findings of fact. Although those challenging the federal Partial Birth Abortion Ban Act in Carhart objected to its lack of an exception for women’s health, Congress had made its own findings. Those were good enough for the Court. In a climate of medical uncertainty (and it did not seem to take much to generate that uncertainty), the tiebreaker went to lawmakers.

It seemed obvious that the “undue burden” test required some analysis of the factual impact of a law. But what kind? Was it the style of analysis seemingly prescribed by Carhart, done primarily by legislators and mostly rubber-stamped by courts? Or did Casey require the Court to take a close look at what happens after an abortion regulation goes into effect?

At least for now, Justice Stephen Breyer’s majority puts the Court firmly on the side of a more meaningful “undue burden” test. The decision matters because it ensures that many abortion clinics in Texas can stay open. Today’s decision also casts real doubt on the constitutionality of similar laws in states like Louisiana, Wisconsin, and Florida. But more than anything, this decision is important because of what it says about how the Court should approach any abortion restriction, not just the ones analyzed by the Justices today. Breyer’s opinion offers a few clues about how courts should apply the “undue burden” test going forward. First, courts have to consider not only whether a law eliminates access but also whether a regulation benefits anyone. Second, legislative findings still make a difference (the Court notes that the Texas legislature did not set any out), but they may not be enough on their own. Courts themselves retain the power to balance the benefits and burdens of a law.

In spite of the ambiguity of the “undue burden” test, I think the reading in today’s decision has to be right. Casey emphasized the importance of balance. Two crucial constitutional matters – women’s interests in autonomy, dignity, and equality and the state’s interest in protecting fetal life and fetal dignity – are always at stake in abortion cases. As the Casey Court framed it, Roe’s trimester framework did not make sense because it undervalued the government’s interest in fetal life, not because it overvalued women’s liberty in making decisions about their own reproductive lives. If balance is at the heart of Casey, the Court’s interpretation today is the only one that makes sense. Only by weighing the harms and virtues of a law for women and unborn children can the Court achieve fulfill the promise of Casey.

Surprisingly, today’s dissenting opinions did not really take issue with the majority’s understanding of the “undue burden” test. Justice Clarence Thomas reminded us that he has never approved of Roe or Casey, and he more or less adopted Texas’s reading of the undue-burden test. But no other Justices joined him.

Justice Samuel Alito’s dissent is telling. Writing for himself, Thomas, and Chief Justice John Roberts, Alito spent much of his time explaining why res judicata barred the clinics’ claim. And when Alito finally got to the application of the “undue burden” test, he barely complained about the balancing approach adopted by the majority. Instead, he primarily emphasized that the majority opinion simply got the facts wrong. Alito suggested that Texas’s HB 2 may well create an undue burden if the clinics that could comply with the law were located too far away or lacked the capacity to serve the needs of women in the state. All of that was a lot to concede, particularly when Texas and its pro-life allies had fought hard for their own arguments about what an undue burden was, in their state and in general.

So why did the dissenting Justices give up on claims that Texas had pressed so vigorously? The answer, I think, is that conflict about the “undue burden” test will now depend on who can prove what. The majority spent much more time than the dissent in evaluating the district court’s findings about the benefits (or lack thereof) of the law for women in Texas. At least in theory, the majority also reviewed the district court’s factual findings more deferentially, walking through the record evidence supporting the conclusion that clinics closed because of HB2. Alito found the record evidence much less convincing, and he concluded that the petitioning clinics could do little more than point to the timing of the clinic closures and the current lack of capacity at facilities that could have complied with HB2.

For now, the majority’s approach means that trial courts will have a major say in the fate of abortion regulations. Today’s decision also offers the beginnings of a road map for making a factual case under the undue-burden test. Expert testimony, depositions, and peer-reviewed studies can all be enough to establish an undue burden.

In clarifying what an undue burden is, today’s decision will also likely begin a new chapter in the history of pro-life incrementalism. As I’ve argued elsewhere, abortion opponents have not always aimed their fire primarily at Roe. Indeed, for much of the 1970s, movement members prioritized a fetal-protective constitutional amendment that would have protected a right to life coast to coast. Only after that strategy seemed out of reach did pro-lifers adopt the strategy of chipping away at Roe that now seems so familiar.

This case will not spell the end of pro-life incrementalism; far from it. But the Court’s decision ensures that both sides will have to collect better proof of whether abortion hurts or helps women. It seems to me that this cannot be a bad thing. Pro-choice Americans strongly believe that without access to safe and legal abortion, women will be less healthy, in control of their lives, or able to participate equally in society. And for many pro-lifers, the argument that abortion hurts women is much more than a cynical ploy. Today’s opinion means that those on both sides will have to make their case to the courts and to the public. It will no longer be enough for legislatures to claim that they have women’s best interests in mind.

This should not be an unpopular outcome. As Reva Siegel, Robert Post, Neal Devins, and others have argued, Casey closely tracks public opinion on abortion. That is: Casey reflects that abortion is a genuinely hard issue for most Americans, who can see real value in the constitutional claims made by each opposing social movement. And it seems to me that this outcome best captures the spirit of Casey. In 1992, the Court’s decision required respect for women’s liberty and the dignity of fetal life. This case goes a step further in guaranteeing that those values receive more than lip service. A meaningful “undue burden” test should do nothing less.

Recommended Citation: Mary Ziegler, Symposium: The Court once again makes the “undue-burden” test a referendum on the facts, SCOTUSblog (Jun. 27, 2016, 2:34 PM),