Symposium: The constitutional law of abortion after Whole Woman’s Health – What comes next?

Kevin C. Walsh is a Professor of Law at the University of Richmond School of Law.

Whole Woman’s Health v. Hellerstedt began with the potential to be a big case in a big Term. It has ended as a doctrinally insignificant but ideologically ominous case in a transitional Term.

This Term’s defining event was the death of Justice Antonin Scalia, not any decision by the Court. But even while Scalia’s absence likely made very little difference in yesterday’s decision, the dueling majority and dissenting opinions illustrate why confirmation of his successor remains unlikely any time soon.

Presidents and senators care about the constitutional law of abortion because powerful interest groups do. And in this corner of constitutional law, one consistent take-away for presidents and senators over the last few decades has been that who the judges are matters more than what “the law” is.

When it comes to the constitutional law of abortion, this case provides fresh evidence that judicial identity in the future is almost certain to trump legal authority from the past. No wonder we have so much trouble securing sufficient agreement on a new Justice.

Some commentators who agree with the result are likely to view yesterday’s decision as a straightforward application of Planned Parenthood v. Casey’s “undue burden” test; others may praise it as a refinement. In keeping with Justice Stephen Breyer’s tendencies in other areas of constitutional law, it brings to the constitutional law of abortion an explicit focus on Canadian- and European-style proportionality review. Whether you think that’s good or bad depends on whether you think proportionality review is desirable. And that probably depends on what you think of the judges doing that review.

For those who disagree with the outcome, perhaps there is the consolation of knowing it could have been worse. Justice Ruth Bader Ginsburg’s Posner-emulating concurrence shows some of the ways how. In one-and-a-half pages, Ginsburg manages not only to quote Judge Richard Posner four times, but also to sprinkle in citations to abortion-favoring amici like the American Civil Liberties Union and the American Congress of Obstetricians and Gynecologists, as well as ten abortion-performing amici from Pennsylvania.

Perhaps the most telling aspect of Ginsburg’s opinion is her adoption of the abortion industry’s messaging that describes laws like Texas’s as “Targeted Regulation of Abortion Providers.” The Twitter-handy feature of this selective capitalization is to enable casual reference to TRAP laws, helpful for communicating dismissiveness and impugning motives. The fact that Texas’s law extended the admitting-privileges and surgical-center requirements only to facilities that perform abortions, rather than all outpatient surgeries, is what seems to have made this an abortion case rather than an economic-regulation case. Never mind that when Massachusetts passed a TRAP law of its own, a Targeted Regulation of Abortion Protesters law that singled out speakers near abortion clinics for special speech restrictions, Ginsburg joined an opinion for the Court a couple of years ago that analyzed it as a content-neutral law.

Distinctions like these matter in our constitutional law, or at least are thought to matter, because they dictate the appropriate standard of review. But as Justice Clarence Thomas’s dissent highlights, we are witnessing an ongoing dissolution of tiers of scrutiny in constitutional analysis. The label attached to a particular standard of review does not match the level of review actually engaged in. We get purportedly “strict scrutiny” that is actually slight, and purportedly “rational basis” review that is actually heightened. And we see the same label of “undue burden” applied with varying stringency over time.

Discussion is already, and appropriately, turning to what yesterday’s decision may mean for other abortion-related laws. But this kind of consideration reveals the limits of cost-benefit analysis, which inescapably – even if only implicitly – requires the valuation and commensuration of incommensurable objects.

Take, for example, a law that bans abortions after twenty weeks gestational age. Hard to deny that the twenty-plus-week-old human fetus is a human baby. Also hard to claim that the only question is how to value a woman’s right to control her own body. That twenty-plus-week-old body is plainly not the woman’s. The human fetus is a human baby; its body is a human body; and it is a distinct body from the mother’s. You can kill it without killing the mother. That’s what abortion does.

What does, or will, our law say about the costs and benefits of a law that protects these babies, or of a constitutional regime that disables meaningful legal protection for them? I’ll bet that depends on which judge you ask. And I’ll bet double that a Justice Merrick Garland would answer the same as Breyer. (You knew how he would rule, right? Read his opinion in Stenberg v. Carhart, and its dispassionate description of the D&E and D&X procedures.) And that goes a long way to explaining why it has been so difficult to confirm a successor for Scalia.

What may appear on the surface of judicial opinions to be a cost-benefit analysis is likely to reflect either (1) decisions on other grounds (as often happens in dormant Commerce Clause analysis of non-discriminatory state legislation under Pike v. Bruce Church), or (2) judicial selectivity about which facts matter and why (as often happens in the effects prong of Establishment Clause analysis under Lemon v. Kurtzman). Neither of these other doctrinal areas is known to score particularly high on the “law-like constitutional law” index.

More judicial discretion to make new constitutional law on abortion is not an ingredient in the recipe for a healthier constitutional culture. But that’s what yesterday’s decision provides. And so the identity of the judges will continue to matter more than anything else to the outcome in abortion-law cases nominally adjudicated under the Constitution.