Roe and Casey Live

No 4-4 split at the Court today. Instead, Justice Breyer announced a 5-3 victory for women’s rights in Whole Woman’s Health v. Hellerstedt. The Court’s opinion provided a ringing endorsement of strict judicial scrutiny by confirming that Planned Parenthood v. Casey’s undue burden standard applies to all aspects of abortion regulation.

It was clear from the start that Texas legislators passed HB2, which required all abortion providers to have admitting privileges (AP) at local hospitals and to comply with physical requirements for ambulatory surgical centers (ASC), for one reason only: to restrict abortion. Nonetheless, Texas asserted its purpose was protecting women’s health. The facts from the district court proved the health rationale was not credible. Yet the Fifth Circuit Court of Appeals upheld HB2 on the theory that courts must defer to legislative assessments of what laws best protect health.

It was unprecedented for an appeals court to conclude that a fundamental constitutional right deserved such minimal judicial scrutiny. Today, the Court vigorously rejected the Fifth Circuit’s reasoning and reaffirmed that courts should not defer to legislatures when fundamental rights are at stake:

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.

The opinion was devastating in lining up, one-by-one, the long list of facts that proved neither AP nor ASC did anything for women’s health. Indeed, the Court reminded us, at oral argument Texas was unable to identify even a “single instance in which the new requirement would have helped even one woman obtain better treatment.” Thus Whole Woman’s Health should now enable courts to openly reject the pretense that restrictive abortion laws — which keep steadily increasing in number and severity — are devoted to women’s health.

Justice Ginsburg’s brief concurrence made the women’s health point even more directly than the detailed analysis of the majority:

Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, “complications from an abortion are both rare and rarely dangerous.” Many medical procedures, including childbirth, [tonsillectomy, colonoscopy, and in-office dental surgery], are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements. Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”

Beyond rational belief. Along with the Fifth Circuit, the dissenters (Justices Thomas, Roberts, and Alito) defended a law that was beyond rational belief. The dissenters accused the majority of bending traditional legal rules to protect abortion rights. But the opposite is true. They and the Fifth Circuit would have left women’s equality at the whim of discriminatory legislatures everywhere, thus abrogating the power of judicial review in one area only: women’s rights.

I was a little surprised that Justice Breyer wrote the opinion of the Court. I had expected either Justice Kennedy (the lone remaining member of the plurality that first drafted Casey‘s undue burden standard) or Justice Ginsburg (our revered champion of women’s equality) to write the decision. Fortunately, the opinion doesn’t read like a compromise among the five justices held together by Justice Breyer. Only days after authoring a strong defense of affirmative action in Fisher II, Justice Kennedy fully signed on to the reaffirmation that Roe v. Wade and Casey live.


Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.