Symposium: Health-justified abortion restrictions are not exempt from Caseys heightened scrutiny

Dawn Johnsen is Walter W. Foskett Professor of Law at Indiana University Maurer School of Law, and author of TRAPing Roe in Indiana and a Common-Ground Alternative in the Yale Law Journal.

Much about Whole Womans Health v. Cole is familiar to SCOTUSblog readers. The essential facts are widely reported, undisputed, and dramatic. After Wendy Daviss famed pink-sneakered filibuster, then-Governor Rick Perry of Texas called a special session of the legislature to enact what The New York Times called one of the most restrictive anti-abortion laws in the country. If allowed to stand, the Texas law will shut down more than three-quarters of the facilities that provide abortion services in the state slashing the number from more than forty to fewer than ten by requiring physicians to obtain unattainable hospital admitting privileges and by limiting abortions to ambulatory surgical centers.

Texas defends the restrictions as health regulations, but the district court found and growing evidence proves that they plainly do not advance womens health. In fact, they greatly diminish womens access to a very safe, common health procedure that an estimated one in three women will have at some point in their lives. They will force women to leave Texas for services, if they can manage that, and to resort to self-induced abortions. The court found the two requirements erect a particularly high barrier for poor, rural, or disadvantaged women throughout Texas.

Also widely known is the basic constitutional framework for assessing the Texas law. The Courts 1992 decision in Planned Parenthood v. Casey is a staple of constitutional law for its reliance on stare decisis to reaffirm Roe v. Wades central holding and for its undue burden standard of review to protect the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.

As even this summary should make clear, the Fifth Circuit decision reversing the district court was plainly wrong for its refusal to consider the actual, extremely harmful health effects of the Texas clinic regulations. On a straightforward application of the Courts controlling precedent, both contested provisions are unconstitutional. On undisputed facts, the question is not close.

More must be going on here. What is truly at issue? The insightful concluding sentence of Michael Dorfs post provides an excellent starting point: The only real question in this case is the one thatCharles Black sawat issue inBrown 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.

The answer here, of course, is yes, and that is made easy by the Courts reaffirmation in Casey of the judiciarys obligation to closely scrutinize abortion regulations to protect against attempts to shut clinics. The Fifth Circuit was able to shut its eyes to reality only by ignoring this obligation and, under the extreme deference of rational basis review, blindly accepting Texass demonstrably false claim that it is promoting womens health.

The Seventh Circuit, by contrast, in November 2015 applied Casey faithfully to a similar Wisconsin admitting-privileges requirement. Judge Richard Posner writing for that court bluntly stated the obvious: [W]hat makes no sense is to abridge the constitutional right to an abortion on the basis of spurious contentions regarding womens health and the abridgment challenged in this case would actually endanger womens health. Under Casey, courts must scrutinize health-justified abortion regulations to ensure that they actually advance womens health: Until and unless Roe v. Wadeis overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting states constitutional authority.

To further illuminate what is at stake, it helps to consider the time of Casey a time, in the interests of full disclosure, when I served as legal director of NARAL Pro-Choice America. The battle over Roe always has centered on a determination of the appropriate standard of review. Viewed in this light, the Fifth Circuits use of rational basis review is a not-too-subtle invitation to the Court to overrule Casey and Roe, even if sub silentio, by abandoning the protections heightened judicial scrutiny now provides against the Texas law and numerous others like it. The Fifth Circuit does not possess that authority and thus acted inappropriately. But the Supreme Court of course has the authority.

In the 1980s and through Casey, the Court received and repeatedly declined a series of such invitations, including by the Reagan and Bush administrations. Roe was a strong, nonpartisan seven-two decision in 1973. But the constitutional right to privacy even Griswold v. Connecticuts protection of the right to use contraception became sharply partisan, including with the 1980 Republican Party platforms call for judges who would overrule Roe.

By the time of the 1989 Webster v. Reproductive Health Services decision, four Justices joined an opinion that would have overruled Roe by replacing its strict-scrutiny standard with rational basis review. Justice Sandra Day OConnor cast the deciding vote, concurring on narrow grounds because she found reconsideration of the standard of review unnecessary to uphold Missouris abortion restrictions before the Court.

The countrys attention turned to the Supreme Court and whether it would overrule Roe. A candidates position on abortion became a meaningful political issue for the pro-choice American majority. For the first time since Roe, the country prepared for an onslaught of state abortion restrictions and efforts to revive state abortion restrictions enacted before Roe. (Advocates since Roe had fought over two forms of harmful abortion restrictions that the Court already had upheld government funding and parental-notice requirements but these restrictions did not similarly mobilize pro-choice Americans.)

When in 1992 the Court heard arguments in Casey, an overruling of Roe seemed virtually certain based on a vote count. Justices David Souter and Clarence Thomas had succeeded Justices William Brennan and Thurgood Marshall, leaving only two of Websters four dissenting Justices supportive of Roe. One challenge was the possibility that the Court would uphold the Pennsylvania law without expressly overruling Roe. Reproductive rights advocates explained to general audiences the significance of standards of judicial review and that for the Court to adopt rational basis review would be tantamount to overruling Roe.

The Courts reaffirmation in Casey of the core of Roe, recognition of the fundamental right, and retention of heightened judicial scrutiny, all came as a great surprise: a tremendous relief to many, a bitter disappointment to others, but a surprise to virtually all. A further surprise was the Courts eloquence on the value of womens dignity and autonomy: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

Caseys holding rested on principles that again will be central to the Courts review of the Texas law: judicial integrity and stare decisis, including that a change in the Courts composition alone should not change outcomes and the recognition that an entire generation has come of age free to assume Roes concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.

Measured against expectations, Casey was an incredible victory, but it also was a careful compromise that allowed for some greater abortion regulation. I believe the Court in Casey was wrong to abandon Roes more predictably protective strict scrutiny standard of review, which at the time the Court applied more uniformly than it does today to protect fundamental rights and against laws that reflect harmful stereotypes. The Court, however, established its seriousness about protecting womens rights and dignity by applying very searching and thoughtful scrutiny to invalidate Pennsylvanias husband-notification requirement based on close consideration of the impact it could be expected to have on the minority of women directly affected by it. More than ever before, the Court in Casey recognized reproductive autonomy in terms not only of privacy, but also the reinforcing constitutional principles of liberty, equality, and human dignity.

The principal, to my mind negative, change Casey wrought was to expand the ability of states to promote potential fetal life in the context of womens decision-making about whether to continue a pregnancy. The Fifth Circuit, however, misread important details: in allowing states to promote fetal life, the Supreme Court limited the permissible means to those it saw as consistent with the nature of the constitutional right at stake. A state may choose to promote childbirth over abortion, but only through the limited means of informing, not hindering, womens free choice regarding abortion decisions: The means chosen by the State to further the interest in potential life must be calculated to inform the womans free choice, not hinder it. (Of course, states also may choose to provide additional protection to womens reproductive rights, as some states have.)

Under this rationale, the Supreme Court upheld Pennsylvanias requirements of mandatory counseling and a twenty-four-hour waiting period. An unfortunate result was to encourage states to impose even more intrusive mandated delays, counseling, and testing requirements (such as mandatory ultrasounds) that can increase costs and delays and stigmatize and demean women. Some states have gone beyond what Casey, properly interpreted, allows. South Dakota, for example, with currently a single abortion clinic, enacted legislation to extend its waiting period from twenty-four to seventy-two hours excluding weekends and holidays and to require women during that time to visit an anti-abortion crisis-pregnancy center. Casey also laid the ground for the creation of partial-birth abortion bans, which the Court in 2000 held unconstitutional but then in 2007 upheld as protecting potential life.

As Reva Siegel and Linda Greenhouse explain in this symposium and in a soon-to-be published article, however, the greater ability under Casey for states to promote potential life through persuasion and information provides absolutely no support for the Texas statute or any health regulation of abortion. The Court was clear to treat separately regulations necessary to protect womens health. Casey plainly does not allow states to discourage abortion or make it difficult to obtain under the guise of protecting womens health. Directly applicable to health regulations, Casey held that the government may not impose [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion. The Fifth Circuit made a fundamental category error.

Texas provides an extreme and easy case, but fidelity to Caseys heightened scrutiny, for example as applied by the Seventh Circuit, will be vital in numerous cases in which the facts will not be so stark. During the last five years, states have imposed an ever-widening range and number of abortion restrictions. States enacted more restrictions in 2011-2013 than in the decade post-Casey (restrictions that generally are cumulative in their detrimental effect, building on existing restrictions). This follows the playbook strategy to overrule Roe incrementally. Anti-abortion leaders discourage efforts to ban abortion as doomed to expensive failure and favor an incremental approach to creating abortion-free states that features health-justified clinic regulations (which often shut clinics). This comes at a time of increased assault on the means of preventing unintended pregnancy, including intensive political attacks, violence, and harassment directed at shutting down Planned Parenthood Federation of America, an institution that does more to prevent the need for abortion than any other organization.

The Fifth Circuits lack of fidelity to Casey and rejection of the relevance of the realities of Texass health regulations must be viewed in this broader political, social, and historical context in light of what is true and obvious. The invitation to the Supreme Court to abandon Casey effectively aims to overrule Roe. If successful, it would lead to abortion-free states and regions of the country, endanger the health and well-being of millions of women and families, and further stigmatize essential reproductive health care, all to the special detriment of women without the resources and ability to travel long distances. The Court fully considered and wisely declined this invitation in 1992. If anything, it should be even less attractive in 2016.