The Volokh Conspiracy
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This morning, in what may be the most significant abortion-related decision of the past twenty-five years, a divided Supreme Court struck down a Texas law regulating abortion providers. The law at issue, H.B. 2, required physicians performing abortions to have admitting privileges at a relatively nearby hospital and required abortion-providing facilities to meet the "minimum standards . . . for ambulatory surgical centers" under Texas law. In Whole Women's Health v. Hellerstedt, the Court held 5-3 that these regulations constituted an impermissible "undue burden" on a woman's right to an abortion.
Justice Breyer wrote the majority opinion, joined by the Court's other liberals (Justices Kagan, Ginsburg, and Sotomayor) and Justice Kennedy. Justice Ginsburg also wrote a brief concurrence. Justice Alito wrote a dissent, joined by the Chief Justice and Justice Thomas. Justice Thomas also wrote a solo dissent "to emphasize how today's decision perpetuates the Court's habit of applying different rules to different constitutional rights—especially the putative right to abortion." In this regard, his opinion seems to be something of a paean to the late Justice Scalia, who often made this argument. Justice Thomas's solo opinion cites Justice Scalia's Stenberg v. Carhart opinion in the opening, and closes citing Justice Scalia's 1989 University of Chicago Law Review article, "The Rule of Law as a Law of Rules."
UPDATE: Here's a little more on the decision, and what it may mean for future challenges to state-level abortion laws.
The current test for evaluating the constitutionality of state-level abortion restrictions is the so-called "undue burden" test from the Court's 1992 decision in Casey v. Planned Parenthood. In the intervening years, lower courts, commentators and the justices themselves have disagreed on what, precisely, this test entails. Today's decision may provide some clarity on this question. In trying to explain why the district court applied the proper standard when invalidating the Texas law, and the appeals court did not, Justice Breyer writes:
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. See 505 U. S., at 887-898 (opinion of the Court) (performing this balancing with respect to a spousal notification provision); id., at 899-901 (joint opinion of O'Connor, KENNEDY, and Souter, JJ.) (same balancing with respect to a parental notification provision). 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. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 491 (1955). The Court of Appeals' approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is "undue."
The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court's case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings. In Casey, for example, we relied heavily on the District Court's factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional. 505 U. S., at 888-894 (opinion of the Court) (discussing evidence related to the prevalence of spousal abuse in determining that a spousal notification provision erected an undue burden to abortion access). And, in Gonzales the Court, while pointing out that we must review legislative "factfinding under a deferential standard," added that we must not "place dispositive weight" on those "findings." 550 U. S., at 165. Gonzales went on to point out that the "Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake." Ibid. (emphasis added). Although there we upheld a statute regulating abortion, we did not do so solely on the basis of legislative findings explicitly set forth in the statute, noting that "evidence presented in the District Courts contradicts" some of the legislative findings. Id., at 166. In these circumstances, we said, "[u]ncritical deference to Congress' factual findings . . . is inappropriate." Ibid.
Unlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women's health). Id., at 149-150. For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court's case law. As we shall describe, the District Court did so here. It did not simply substitute its own judgment for that of the legislature. It considered the evidence in the record-including expert evidence, presented in stipulations, depositions, and testimony. It then weighed the asserted benefits against the burdens. We hold that, in so doing, the District Court applied the correct legal standard.
The scrutiny Justice Breyer describes is likely to make it very difficult for states to enact regulations covering pre-viability abortions unless legislatures are able to marshal substantial evidence that such regulations demonstrably protect the health of the mother. Laws that are enacted with the explicit (or unstated) purpose of protecting fetal life prior to viability will be difficult to sustain.