How Justice Breyer Rewrote Abortion Law in Whole Woman’s Health

An assessment of the Supreme Court’s most recent abortion decision by ISCOTUS Director Christopher W. Schmidt

In his opinion for the Court in Monday’s Whole Woman’s Health v. Hellerstedt, Justice Breyer had two goals: to write a bland opinion and to rewrite abortion law.

Breyer’s opinion conscientiously avoids engaging with the most controversial elements of abortion law. It makes only the most limited references to the constitutional basis for the right to abortion, to questions of constitutional interpretation, and to the importance of reproductive choice to women’s rights generally. Instead of passion or principles, he gave facts. Lots of facts, gathered to demonstrate that the abortion regulations Texas claimed to be health measures achieved minimal health benefits at best, and probably made abortions riskier. He didn’t delve into the reasons Texas passed these regulations (which, as everyone knows, was primarily to advance a pro-life agenda). He collects facts, shows how they fail to meet the constitutional standard, and strikes down the regulation. Job done.

Contained within this bland, let-the-facts-do-the-talking opinion, however, was a decision that does nothing less than rewrite the way the courts do abortion law.

The new approach Breyer outlined, and then used to strike down the two Texas abortion regulations, is deceptively simply and commonsensical: he insisted that the Court’s constitutional evaluation take into account the benefits of an abortion regulation alongside the burdens it imposes on access to abortion.

Seems obvious, right? Yet before Monday, many lower federal courts relied on a constitutional test that gave only glancing attention to the health benefits of abortion regulations. The test these courts had developed were grounded in Planned Parenthood v. Casey, the 1992 decision in which the Court reaffirmed the constitutional right to abortion that it created in Roe v. Wade while modifying Roe’s test for evaluating abortion regulations. Casey’s major innovations were (a) to recognize that the government could regulate abortion throughout a woman’s pregnancy in order to advance its interests in protecting the health of the mother and protecting fetal life; and (b) to introduce the “undue burden” test, under which an abortion regulation that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” violated the Constitution.

Casey was less than clear, however, on how (a) and (b) related to one another. A number of courts developed a two-step test in evaluating abortion regulations. First (a): does the government have a constitutional basis for passing the abortion regulation? Then (b): does that regulation constitute an undue burden on a women’s access to abortion? The second step did not take into account the reason for the regulation that was the focus of the first step; it just looked to whether the regulation placed a substantial obstacle in the way of a woman seeking a legal abortion.

The reason this Casey two-step frustrated pro-choice advocates, and why a majority of the Court rejected it on Monday, had to do with the level of deference the courts were willing to give to lawmakers in step one of its analysis. The first step applied only the lowest level of judicial review, what the courts call “rational basis review.” This standard, which applies to constitutional review of most policy, only asks whether a legislator could rationally believe the law would advance a legitimate state interest. So in the case of the Texas abortion regulations, could a legislator believe that requiring doctors providing abortions to have admitting privileges at a nearby hospital or requiring that abortion facilities meet the standards of surgical centers would serve to protect women’s health? Under rational basis review, the legislator is given the benefit of the doubt when there are factual disputes on the effects of the law. So in the Texas case, even if the weight of scientific evidence showed that abortions were a generally safe procedure, that complications were rare, and that the new requirements likely would have the effect of increasing health risks, the law could still get through step one if in the face of this evidence there was enough uncertainty that a legislator could rationally believe the regulation advanced a health interest. Only in the rarest of cases will courts determine that a policy is so irrational to fail this deferential test. In Whole Woman’s Health, the Fifth Circuit Court of Appeals held that the Texas regulations met this low threshold.

Only when the Court got to the next step, when it considered the effect of the regulation on a woman’s access to abortion, did the Court give the kind of close, skeptical analysis that typically characterizes the review of policies that limit constitutional rights. This was when the “undue burden” test kicked in. Under the two-step analysis, courts looked just at the extent of the “obstacle” the regulation created. Was the obstacle “substantial”? If yes, then the law was struck down; if no, then it was upheld. It was on this critical question that courts across the country went in different directions. For some judges, increased travel times and costs for having an abortion—the result of abortion regulations like the ones in Texas—was a significant obstacle; for others it was not. When judges tried to apply this vague “substantial obstacle” standard in this abstract way, it is no surprise that conservative and liberal justices usually came to different conclusions. In Whole Woman’s Health, the Fifth Circuit held that the obstacles the Texas regulations created were not substantial.

And this was how many lower federal courts used Casey before Monday.

But in Whole Woman’s Health, Breyer rejected the Casey two-step and clarified (according to his supporters) or redefined (according to his critics) Casey into a one-step, in which the reasons for the regulation would be part of the analysis of the significance of the burden on access to abortion. Going forward, the undue burden analysis will require a balancing test, a weighing of the benefits of a regulation against the costs it imposes on a woman’s right to abortion. As Breyer wrote about the Texas regulations, neither of the challenged regulations “offers medical benefits sufficient to justify the burdens upon access that each imposes.”

Although it is unlikely that this new doctrinal approach will diffuse any of the controversy surrounding the Court’s place in our nation’s struggle over abortion, it does serve to better align the Court’s doctrine with the way most Americans think about abortion. The Casey two-step was the kind of formalistic analysis that leaves non-lawyers scratching their heads. Everyone knew that the real reason Texas passed these laws was to protect fetal life. But since they were framed as health regulations, and since they arguably may have some health benefits, the courts were going to treat them as legitimate health regulations. And then the courts ventured into an unsatisfying, irresolvable debate over what is “substantial.” But Breyer’s approach has the virtue of insisting that this all needs to be considered together. So rather than some abstract assessment of substantiality, the question is whether the costs outweigh the benefits. In the Texas case, this approach leads to a clear conclusion: even giving the Texas legislators the benefit of the doubt, the benefits are relatively minimal, and the burdens are significant.

Reactions to this decision have predictably fallen along ideological lines. Those who think the Constitution doesn’t protect a right to abortion see nothing good in this decision. But I think there is reason for people on all sides of this issue to appreciate Breyer’s reworking of the undue burden standard as a move toward a more productive, honest abortion doctrine. The doctrine now better assesses the decision making process that most Americans actually go through in considering this difficult balancing of a woman’s right to choose and a state’s interest in protecting a mother’s health as well as fetal life. If we are to have a constitutional right to abortion, and if we are to permit states to regulate abortion to some extent, then judges should employ a doctrine that actually places the relevant factors into the same judicial analysis. Breyer’s decision in Whole Woman’s Health does just that.

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