The Yale Law Journal

VOLUME
125
2015-2016
NUMBER
5
March 2016
1150-1547
Feature

Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice

Linda Greenhouse & Reva B. Siegel

abstract. We offer a fresh understanding of how the Supreme Court’s abortion jurisprudence addresses laws that invoke not potential life, but women’s health as a reason to single out abortion for burdensome regulation that has the effect of closing clinics. The current wave of health-justified restrictions—including laws that require abortion providers to secure admitting privileges at nearby hospitals or to become the functional equivalents of hospitals themselves—is destroying the clinic infrastructure on which women depend in order to exercise their constitutional right to end a pregnancy.

How should judges evaluate the states’ claims that such laws protect women’s health? We argue that such laws must actually serve the ends claimed for them if they are not to circumvent constitutional limits on the means by which states can protect unborn life. Careful judicial scrutiny is essential to vindicate values at the core of the Court’s decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart.

We ground our argument in the principles of the undue burden standard as explained in Casey and applied there and later in Carhart. Casey modified Roe v. Wade to provide that from the beginning of pregnancy, states may protect two interests, unborn life and women’s health. States may express a preference for childbirth by trying to persuade a woman, through a twenty-four hour waiting period and the provision of information, to forgo abortion. But states cannot express a preference for childbirth in ways that obstruct women from acting on their constitutionally protected choice.

Casey and Carhart allow the government to express respect for the dignity of human life by means that respect the dignity of women. Regulations that close clinics in the name of women’s health, but without health-related justification, do not persuade: they prevent. In adopting such regulations, states—along with the courts that defer to them—violate the principle at the core of the Supreme Court’s protection for the abortion right.

authors. Linda Greenhouse is the Joseph Goldstein Lecturer in Law, Yale Law School. Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law, Yale Law School. For comments on the manuscript, we thank Jack Balkin, Walter Dellinger, Elizabeth Deutsch, Neal Devins, Michael Dorf, Cary Franklin, Dawn Johnsen, Douglas NeJaime, Robert Post, Neil Siegel, Priscilla Smith, and participants in faculty workshops at Yale Law School and the University of Texas at Austin School of Law. We are indebted to Elizabeth Dervan, Olivia Horton, Emma Roth, and Rachel Tuchman for excellent research assistance.


Introduction

Many recently enacted laws restrict abortion not in the name of protecting unborn life, but in the name of protecting women’s health. States require that doctors who perform abortions have admitting privileges at nearby hospitals or require that abortion clinics be outfitted as “ambulatory surgical centers.”1 These new laws single out abortion for burdensome, health-justified restrictions not imposed on other medical procedures of similar risk.2 As legislators know or suspect, these requirements are unattainable for many abortion providers.3 As a result, these restrictive laws are forcing large numbers of abortion clinics to close their doors.4 Before Texas intensified its regulation of abortion providers through changes in its admitting privileges and ambulatory surgical center laws, there were forty-one clinics remaining in the state; enforcing the new law would close approximately three-fourths of them.5

Judges who strike down6 and who uphold7 these restrictions all cite as authority the same Supreme Court decision from nearly a quarter century ago: Planned Parenthood of Southeastern Pennsylvania v. Casey.8 This is not as surprising as it might at first seem. Casey was crafted by moderates responding to concerns raised both by those who wanted to overturn Roe v. Wade9and those who wanted to preserve constitutional protections for the abortion right.10 The framework these Justices crafted allowed states more latitude to restrict abortion in the interest of protecting potential life, but only as long as women could make the ultimate decision whether to continue a pregnancy. Casey has now been the law of the land longer than the unmodified Roe itself. Fifteen years after Casey, a different majority—while more skeptical of the abortion right—nonetheless applied the Casey framework in upholding the Partial Birth Abortion Ban Act in Gonzales v. Carhart.11

In what follows, we seek to understand how Casey addresses laws that invoke not potential life—the interest at stake in Carhart—but women’s health as a reason to single out abortion for burdensome regulation that closes clinics. A sharp circuit conflict over how judges are to evaluate health-justified restrictions on abortion has placed the issue on the Supreme Court’s docket in Whole Woman’s Health v. Hellerstedt.12 Some circuits read Casey and Carhart to require courts to examine whether health-justified regulations actually and effectively serve health-related ends. Others construe the cases to prohibit judicial inquiry of this kind and mandate judicial deference to the states’ claims.13

We argue that Casey requires scrutiny of health-justified restrictions to ensure that they actually and effectively advance health-related ends and do not protect potential life in a manner the Constitution prohibits. We ground this argument in an understanding of the constitutional values at Casey’s core. Casey both modified and affirmed Roe. Casey gave states more latitude to protect potential life but only so long as states employed means that respect women’s dignity: “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it”14 and cannot impose an “undue burden” on the abortion decision.15 These values at Casey’s core should guide review of health-justified restrictions on abortion. When states single out abortion for burdensome health regulations, courts must confirm that the laws actually serve health-related ends and do not instead provide a backdoor way of protecting potential life. Scrutinizing the facts that justify laws targeting abortion for onerous health restrictions thus serves a crucial anticircumvention function: it ensures that legislatures do not employ health restrictions on abortion to protect unborn life by unconstitutional means. Preserving the distinction between abortion restrictions that protect women’s health and abortion restrictions that protect unborn life secures constitutional protection for women’s dignity.

Our reading of Casey thus generates a fresh approach to health-justified restrictions on abortion, sometimes called “TRAP laws” (targeted regulation of abortion providers).16 States are enacting a variety of laws that impose special health restrictions on abortion—whether expressly or impliedly on the ground that abortion is “exceptional” because it involves the unborn.17 States play an important role in protecting public health. But with an understanding of the protection that Casey provides for women’s choices, it becomes clear why states cannot single out abortion for onerous health restrictions not imposed on other procedures of similar or greater risk. Such laws may protect the unborn in ways that Casey prohibits.18

The undue burden framework is the gateway for making these determinations. The undue burden inquiry examines a law’s purpose and its effects, and courts must attend to both.19 A weak factual basis for the health interest asserted may supply objective evidence of a purpose to impose a substantial obstacle to women seeking an abortion.20 Examining the factual basis of a health-justified abortion restriction is also important in evaluating the law’s effects. Considering the extent to which a law advances the state’s interest in protecting a woman’s health is crucial in determining whether the burden it imposes on women’s choices is warranted or “undue.”21

In a series of recent judgments, courts have emphasized that Casey requires inquiry into the facts that justify laws targeting abortion for onerous health restrictions,22 but the Fifth Circuit expressly rejected this view23 in the Texas case now in the Supreme Court, Whole Woman’s Health v. Hellerstedt.24

The Fifth Circuit asserted that it is wholly improper for judges to examine the factual basis of the state’s claim that a restriction on abortion promotes women’s health.25 The circuit applied deferential rational-basis review, crediting without probing the state’s claim to regulate in the interests of women’s health. To justify its use of hyperdeferential rational-basis review, the Fifth Circuit invoked Gonzales v. Carhart, the Supreme Court’s 2007 decision that upheld the Federal Partial Birth Abortion Ban Act.26

But Carhart does not require judicial deference to the state’s health justifications for closing Texas clinics as the Fifth Circuit asserts. Very different kinds of abortion restrictions are at stake. Carhart concerned a law enacted to protect potential life, not women’s health.27 The law did not prohibit the “usual” method for performing second-trimester abortions, but one less commonly employed.28 The law did not restrict access to abortion before viability and closed no clinics. As the majority emphasized, “Alternatives are available to the prohibited procedure.”29

As importantly, Carhart itself applied Casey’s undue burden standard and insisted that “[t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”30 In determining whether the ban on a particular method of later-term abortion required a health exception, the Court reviewed and rejected multiple findings of fact by Congress31: “Uncritical deference to Congress’ factual findings in these cases is inappropriate.”32 Accordingly, the Fifth Circuit’s decision flouted not only Casey, but Carhart as well in reasoning about the review of abortion restrictions as ordinary social and economic legislation unconnected to constitutional rights.33

Our analysis proceeds in two parts. In Part I, we develop a framework for analyzing health-justified restrictions on the abortion right that is grounded in an understanding of the core principles animating the Casey-Carhart line of cases. After developing this approach to the health-justified restrictions on abortion known as TRAP laws, we turn in Part II to contemporary litigation over admitting privileges requirements for abortion providers, the most recent effort to restrict access to abortion in the name of women’s health. We argue that courts applying both the purpose and the effects prongs of the undue burden standard must examine whether a health-justified abortion restriction actually and effectively serves the state’s asserted health interests. Constitutional guarantees for dignity require active review of this kind.

I. understanding casey: why courts need to differentiate between life and health interests in reviewing abortion restrictions

In this Part, we return to Casey and examine the values that guided the Court’s decision in that case. We then draw on this understanding of the constitutional values at the core of Casey to build a framework for reviewing health-justified restrictions on abortion.

A. The Values at Casey’s Core

In Casey, Justices who sought to reaffirm and modify Roe prevailed over those Justices who wanted either to reverse or to preserve Roe.34 Chief Justice Rehnquist, along with Justices Scalia and Thomas, failed in their effort to replace Roe’s strict-scrutiny standard with rational-basis review of abortion restrictions.35 Roe’s author, Justice Blackmun, also failed in his effort to maintain strict scrutiny and to preserve the trimester framework, which prohibited government from restricting abortion to protect potential life until the interest was deemed compelling at fetal viability, in the third trimester of pregnancy.36 What emerged, in an opinion jointly written by Justices O’Connor, Kennedy, and Souter, was the undue burden standard—a standard that reaffirmed and modified Roe.

The authors of the joint opinion addressed a nation polarized over abortion, acknowledged core commitments of Roe’s critics and proponents, and integrated these competing commitments into the new undue burden framework. Criticizing Roe’s strict scrutiny of previability abortion restrictions on the ground that it “undervalues the State’s interest in the potential life within the woman,”37 the joint opinion asserted that the state’s “profound interest in potential life”38 offered a reason for regulation of abortion throughout pregnancy. But the joint opinion nonetheless imposed constitutional limits on the means by which government can protect its interest in potential life: “[T]he State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.”39 While government can restrict access to abortion in the interest of persuading a woman to continue a pregnancy, it cannot do so by means that impose an “undue burden” on a woman’s decision. The joint opiniondefined an “undue burden” as “a state regulation [that] has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”40 It explained: “A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.41In this way, a majority of the Casey Court—the three authors of the joint opinion and the two Justices who refused to modify Roe’s trimester framework42—reaffirmed the Constitution’s protection for a woman’s decision whether to carry a pregnancy to term.43 A different majority of the Court—the three authors of the joint opinion and the four Justices who would have construed Roe in a rational-basis framework—allowed regulation of a woman’s decision whether to carry a pregnancy to term in ways that Roe had previously barred.44

From the struggle within the Court thus emerged a holding that respects both a woman’s constitutionally protected right to decide whether to continue a pregnancy and the government’s interest in persuading her to do so. Where Roe forbade all efforts to protect potential life before the point of fetal viability,45 Casey permits government efforts to persuade a woman to choose childbirth beginning in the earliest stages of pregnancy—so long as the government protects potential life by means that do not unduly burden a woman’s right to make “the ultimate decision” about whether to carry a pregnancy to term.46

This limitation is crucial. It authorizes the government to protect potential life by means that recognize and preserve women’s dignity: “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.”47 The Court thus designed Casey’s undue burden framework to give legal form to two values—potential life and the dignity of women—and to guide the coordination of these values48: “The joint opinion adopts an undue burden framework that allows government to regulate abortion in ways that respect the dignity of life, so long as the regulation respects the dignity of women.”49 It is because Casey vindicates multiple constitutional values that the government is limited in the ways it can protect potential life. If government wants to protect unborn life, it has to respectfully enlist women in this project and cannot simply commandeer women’s lives for these purposes.

In this way, the joint opinion structured the undue burden standard as a framework in which Americans might negotiate the conflict over abortion so deeply dividing the nation. The Court allowed the community to give voice to deeply held antiabortion sentiment while nonetheless insisting that the Constitution protects a woman’s right to make her choice. These dual concerns guided the joint opinion’s application of the undue burden standard to the provisions of the Pennsylvania statute at issue in the case.

B. How Casey Applied the Undue Burden Standard to Life- and Health-Justified Restrictions on Abortion

In reviewing Pennsylvania’s restrictions on abortion, Casey dealt principally with regulations justified as protecting unborn life. We begin by examining these more familiar portions of the decision and show how the Court’s application of the undue burden standard requires that any effort to protect unborn life use dignity-respecting modes of persuading women. We then turn to a short section of the Casey decision that upholds recordkeeping requirements as promoting women’s health. Few attend to this portion of the opinion, but it is an integral part of the undue burden framework and illustrates how courts ought to evaluate restrictions that claim a health-based rationale.

Pennsylvania’s Abortion Control Act of 198250 promoted the state’s interest in potential life in several ways. The first was a counseling requirement directing doctors to provide information about the abortion procedure, the relative risks of abortion and childbirth, embryonic and fetal development, and available resources should the woman choose to carry the pregnancy to term.51 In the years before Casey, laws requiring statements intended to discourage abortion had been held unconstitutional in the 1983 decision, City of Akron v. Akron Center for Reproductive Health, Inc.,52 as well as in a subsequent decision, Thornburgh v. American College of Obstetricians & Gynecologists.53 The Court had held that such efforts at dissuasion improperly deterred women in the exercise of a constitutionally protected choice and interfered with the physician-patient relationship.54

Assuming that the Pennsylvania statute required “the giving of truthful, nonmisleading information,”55 Casey overturned those precedents in significant part. The controlling joint opinion of Justices O’Connor, Kennedy, and Souter said: “[W]e permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion.”56 The Court reasoned that the decision remained the woman’s because, although the state may have engaged in directive counseling at odds with normal informed-consent practice,57 it did not supply false or misleading information. The Court thus understood the state to vindicate its interest in protecting unborn life by means consistent with the dignity of women.

The second Pennsylvania regulation the Court reviewed required a woman to wait twenty-four hours after receiving the information about fetal development before she could proceed with an abortion. Again the Court balanced the extent to which the regulation advanced the state’s interest in protecting potential life against the burden it imposed on a woman’s choice to end a pregnancy. Whether this regulation imposed an undue burden was “a closer question,” the joint opinion said, given that it required an additional doctor visit and would predictably lead to additional cost and travel time.58 But “[t]he idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable,” the opinion said.59 The Court allowed the state to impose modest costs and burdens on the exercise of choice as incidental effects of the state’s efforts to persuade.60 “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.”61 Unlike Roe and the Akron and Thornburgh decisions, Casey recognizes a community interest in dissuading women from choosing abortion and authorizes states to facilitate that effort, even if it imposes modest additional costs. States may engage women in conversation with the community that seeks to change her mind, so long as they do so in ways that do not unduly burden or obstruct her ultimate choice.62 In this respect as well, Casey understands the state to vindicate its interest in protecting unborn life by means consistent with the dignity of women.

The third significant regulation the Court considered in Casey was the requirement for a married woman to notify her husband before obtaining an abortion: doctors who provided an abortion without receiving a signed statement to that effect would lose their license and would be liable to the husband for damages. The Court concluded that the burden imposed by this requirement was undue. At least two different kinds of considerations informed this conclusion. First, the state had structured the decision-making process in a way that risked endangering those women who would not voluntarily discuss the decision with their husbands as, the Court observed, the overwhelming majority of women do63: “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”64

But the fact that the decision-making process was structured to expose women seeking an abortion to the risk of domestic violence was not the only constitutional flaw in the spousal-notice requirement. In a remarkable four-page discussion, the Court explained that the state could not vindicate its interest in protecting potential life by requiring a woman to notify her husband before obtaining an abortion because structuring the decision-making process in this way reflected and perpetuated a long-standing, but now unconstitutional, understanding of the marital relationship.65 “The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law.”66 Casey prohibits the state from requiring a woman to place her constitutionally protected decision in her husband’s hands, even to save potential life; instead, it requires the state to save potential life only by means that respect women’s dignity. “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”67

These passages of Casey do more than prohibit the government from coercing women into continuing a pregnancy. Casey goes farther and limits the manner in which the government may persuade women to continue a pregnancy. For example, Casey allows the government to dissuade women from choosing abortion, but only by providing information that is “truthful” and “nonmisleading.”68 The government may not provide a woman false or misleading information that might persuade her to continue a pregnancy,69 presumably because it would transform the woman into the government’s instrument for childbearing. In barring this mode of persuasion, Casey prohibits the government from protecting potential life through means that deny women liberty and equality. A principled understanding of this kind also led the Court to strike down the spousal-notice provision. The government may not require a woman to tell her husband of her decision to end a pregnancy, even if it begins a conversation that saves a potential life, because persuasion under these conditions perpetuates the husband’s historic forms of authority over his wife.70 Casey holds that governments may not structure the decision-making process in this way, even in nonabusive relationships, because it denies women liberty and equality.71 These different applications of the undue burden framework show Casey’s core values at work: the government may persuade women to forego abortion and thus to protect potential life—but only if the government employs modes of persuasion that are, in the Court’s view, consistent with the dignity of women.

In reviewing the Pennsylvania statute, Casey addresses health-justified regulation of abortion as well as fetal-protective restrictions. The joint opinion begins its discussion of how Casey governs the regulation of abortion with a statement of principles setting forth how its undue burden standard separately applies to laws promoting each of these state interests.72 The joint opinion makes clear that some health-justified regulations are permissible, while others are not:

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.73

The Court thus allows regulation of abortion in the interest of protecting women’s health to the extent that it is consistent with ordinary medical practice (“as with any medical procedure”).74 But the Court prohibits as an undue burden health-justified regulations that are “unnecessary” and have the “purpose or effect” of making access to abortion substantially more difficult.75 As we discuss below, singling out abortion for onerous regulation not applied to other medical procedures of similar risk is thus suspect in this framework.76

A final section of the joint opinion applies these principles to the one provision of the Pennsylvania statute at issue that regulated abortion in the interests of public health. The Pennsylvania law required providers to report information to the state about their practice of abortion.77 The Court viewed Pennsylvania’s reporting requirements as protecting women’s health, distinguishing that interest from the state’s interest in protecting potential life by dissuading women from ending a pregnancy:

Although [the requirements] do not relate to the State’s interest in informing the woman’s choice, they do relate to health. The collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman’s choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.78

In this passage, Casey discusses how the undue burden analysis applies to restrictions on abortion justified on the grounds, not of protecting unborn life, but of protecting women’s health. In applying undue burden analysis, the Court separately considers both the purpose and effect of the regulation. In this passage, it is clear that a regulation enacted for the putative purpose of protecting women’s health must in fact promote health to justify imposing increased costs on the practice of abortion. A restriction on abortion enacted for the claimed purpose of protecting women’s health is not constitutional if it “serve[s] no purpose other than to make abortions more difficult.”79 But the Court does not examine purpose as the sole criterion of constitutionality. The undue burden framework is equally concerned with effects, leading the Court to inquire whether the reporting requirement “impose[s] a substantial obstacle to a woman’s choice.”80 The Court allows regulation that promotes health, even if the health regulation had the incidental effect of increasing abortion’s cost “by a slight amount”—reserving the question of the conditions under which increased costs become a “substantial obstacle.”81

Few have engaged seriously with these passages discussing the application of undue burden analysis to abortion restrictions enacted in the interest of protecting women’s health as distinct from protecting fetal life.82 In what follows, we discuss the constitutional values and practical considerations that might guide courts reviewing health-justified restrictions on abortion, known as TRAP laws.

C. TRAP Laws in the Casey Framework

Casey applies the same undue burden framework to restrictions on abortion enacted in the interest of protecting both potential life and women’s health. Yet, as we show, Casey requires applying undue burden with attention to the differences between these two regulatory interests.

In discussing the application of the undue burden standard to health-justified restrictions on abortion, Casey expresses concern about health restrictions that are needed and those that are “unnecessary” or pretextual.83 What might prompt this concern? When the Court cautions against “[u]nnecessary health regulations”84 or health-justified restrictions that “serve no purpose other than to make abortions more difficult,”85 the Court seems to be concerned about legislative subterfuge: while talking in terms of women’s health, the legislature may be trying to make access to abortions “more difficult” to protect unborn life. Presumably it is the effort to evade constitutional restrictions on the means by which government may protect unborn life that would animate subterfuge of this kind. Recall that Casey imposes constitutional limits on the means by which government can protect its interest in potential life: “[T]he State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.”86

To preserve Casey’s core protection for a woman’s decision, judges have to review health-justified restrictions on abortion in order to ensure that they actually serve health-related ends and do not instead protect potential life by unconstitutional means—that is, by obstructing a woman’s access to abortion without attempting to reason with her about her decision.

Yet how are judges to distinguish between constitutional and constitutionally suspect forms of health regulation? States are, of course, entitled to regulate the practice of medicine as a matter of their police power,87 and judges, as a longstanding matter of federalism, will be loath to interfere with that prerogative. For example, five years after Casey, the Court in Mazurek v. Armstrong, a brief per curiam opinion, upheld a Montana law providing that only a doctor could perform an abortion.88 The Court emphasized that physician-only requirements of this kind had been sustained in its prior cases, including both Roe and Casey.89 As the regulation at issue in Mazurek would not force any woman “to travel to a different facility,” the Court judged its effects minimal.90 The Court declined to find Montana’s physician-only requirement unconstitutional in purpose in light of the Supreme Court’s several cases sanctioning physician-only requirements, the requirement’s minimal effects on abortion access, and the fact that similar rules existed in forty other states.91

But at some point the state’s police power may be exercised in such a way as to violate a constitutionally protected right. Casey itself seems to offer some guidance for courts in distinguishing between regulations of the practice of medicine that are a legitimate exercise of the police power and regulations of the practice of medicine that may run afoul of a constitutional right. In upholding Pennsylvania’s reporting requirement, the Court emphasizes that “[t]he collection of information with respect to actual patients is a vital element of medical research.”92 The Court reasons that the reporting requirement conforms to the general regulation of the practice of medicine outside the abortion context, and that benchmark seems to guide the Court in upholding the law against constitutional challenge.93

The reporting requirements upheld in Casey differ in this important respect from TRAP laws enacted across the nation that target abortion providers for burdensome regulation.94 Such regulations impose requirements on abortion providers that are not imposed on other medical practices of similar or even greater risk.95 It is increasingly common for state health and safety laws to single out abortion in various contexts—including the licensing of clinics and the regulation of practices such as telemedicine, admitting privileges, and prescribing drugs off-label—and judges have raised concerns about this differential treatment as an indicator of unnecessary regulation and potential unconstitutionality.96

What does Casey have to say about abortion exceptionalism of this kind? Judges differ profoundly in their understanding of how Casey’s undue burden framework applies to laws that single out abortion for health-justified restrictions. A debate among judges on the Fourth Circuit illustrates the nature of this disagreement. At issue was the constitutionality of a South Carolina law that targeted physicians’ offices and medical clinics performing five or more first-trimester abortions a month with special licensure and operational requirements.97 The District Court struck down the regulations as imposing an undue burden. The requirements were “medically unnecessary,” the court said, imposing “costs and other burdens” that were “not justified by the stated interest in protecting the health of the women undergoing the procedure.”98 The Fourth Circuit reversed, over a dissent objecting that the state law “singles out and places additional and onerous burdens upon abortion providers which are neither justified by actual differences nor rationally related to the state’s legitimate interest in protecting the health and safety of women seeking first-trimester abortions.”99 The majority upheld the regulations as protecting women’s health and explained the justification for treating abortion differently:

It is regrettable that our good colleague in dissent would rule on the basis that abortion is like any other simple medical procedure that is directed at injury or disease. Thought of in this way, it is understandable that he, like the district court, might find many of South Carolina’s regulations unnecessary. Why have inspections, keep records, and minimize the medical risks for only the abortion procedure, when such a protocol is not mandated for comparable medical practices addressing injury and disease? But the importance of the deeply divided societal debate over the morality of abortion and the weight of the interests implicated by the decision to have an abortion can hardly be overstated. As humankind is the most gifted of living creatures and the mystery of human procreation remains one of life’s most awesome events, so it follows that the deliberate interference with the process of human birth provokes unanswerable questions, unpredictable emotions, and unintended social and, often, personal consequences beyond simply the medical ones.100

As these unusually frank judicial exchanges demonstrate, abortion exceptionalism denotes something more than the fact of singling out abortion for special, health-justified restrictions. Visible here, but more often submerged in neutral language, is the notion that there is a special moral valence to abortion that, because it concerns the unborn, warrants special forms of health regulation not imposed on procedures of comparable risk.

Setting the Fourth Circuit’s opinion alongside Casey shows how Casey rejects abortion exceptionalism of this kind.101 Casey treats with utmost gravity the state’s interest in regulating abortion in the interest of protecting unborn life.102 It provides the community a means of vindicating this interest: dissuading women from having an abortion. Yet the Court does not permit regulation justified as protecting women’s health to function as an additional means of protecting the interest in potential life. Casey allows health-justified regulation of abortion where consistent with the ordinary regulation of the practice of medicine. However, Casey objects to “unnecessary” health regulation whose purpose or effect is to deter women from acting on a decision to end a pregnancy: “As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”103

As this passage shows, the undue burden framework prohibits laws that single out abortion for “unnecessary” health regulations that obstruct access to abortion. Under Casey, government may not mix regulatory interests and use health-justified regulations to obstruct access to abortion by nondissuasive means. For this reason, judicial scrutiny of the facts that justify laws targeting abortion for onerous health restrictions is necessary to prevent legislatures from circumventing constitutional limitations that protect women’s dignity.

II. the clinic closings: prevention, not persuasion

In recent years, states have enacted laws that impose increasingly burdensome health restrictions on abortion providers not required of others who perform health-care procedures of similar risk.104 Some laws require providers to acquire admitting privileges at hospitals that for reasons of politics, religion, or stigma want nothing to do with doctors who perform abortions;105 others require the clinics to be retrofitted as small hospitals at unaffordable expense.106 The practical impact of these health restrictions appears to be much greater than that of fetal-protective laws designed to dissuade women from having an abortion; the latter communicate to one woman at a time the state’s message that abortion is the wrong choice, while the former can shut down clinics, thus impairing or preventing access altogether.

In this way, the recently enacted health restrictions dramatically shrink abortion providers’ infrastructure, closing clinics and disabling doctors from serving their patients.107 For example, in overturning Mississippi’s admitting privileges law, the Fifth Circuit concluded that the law imposed an undue burden because it would have the effect of closing the sole remaining abortion clinic in the state.108 In Texas, the district court blocked House Bill 2 after observing that the number of abortion clinics in the state had already shrunk from more than forty to half that number since the law’s admitting privileges requirement took effect in late 2013.109 On appeal, the Fifth Circuit largely reversed the district court’s injunction, permitting a reduction in the number of clinics to “at least eight” in the state of Texas.110 Judge Posner, in affirming a preliminary injunction against Wisconsin’s admitting privileges law, which gave doctors one weekend to come into compliance, noted in his opinion for the Seventh Circuit that the law would have shut down two of the state’s four abortion clinics.111 In Alabama, three of the state’s five abortion clinics sued to block the state’s admitting privileges law, informing the district court that if the law went into effect, they would be forced to stop performing abortions.112 Louisiana District Court Judge deGravelles issued a preliminary injunction of the state’s admitting privileges requirement, finding that enforcement of the law would leave four of the five clinics in the state without an abortion provider and the last remaining clinic with only one provider.113

Key officials involved in enacting these laws expressed open hostility to abortion, even as they claimed a health-protective purpose. Shortly after the Texas admitting privileges and ambulatory surgical center bill was sent to the House, then-Lieutenant Governor David Dewhurst tweeted a photo of a map that showed all of the abortion clinics that would close as a result of the bill, writing: “We fought to pass SB5 thru the Senate last night, & this is why!”114 Dewhurst quickly backpedaled, tweeting: “I am unapologetically pro-life AND a strong supporter of protecting women’s health. #SB5 does both.”115

Lawmakers have offered similar observations in Mississippi, where an admitting privileges law threatened to shut down the last clinic in the state. In a “state of the state” speech delivered on the forty-first anniversary of Roe, Governor Phil Bryant said:

I believe we have also done an admirable job in protecting our children, both born and unborn. By strengthening the Child Protection Act and by requiring that abortionists obtain admitting privileges at local hospitals, we are protecting women’s health. But let me be clear, on this unfortunate anniversary of Roe versus Wade, my goal is to end abortion in Mississippi.116

It is unsurprising that states enacting and defending admitting privilege statutes assert that the laws protect women’s health.117 Acknowledging a fetal-protective justification for the laws—given the laws’ role in forcing clinics to close—would plainly violate the constitutional limits Casey imposes on the means by which states can protect unborn life.118

In this Part, we briefly examine the most recent health-justified restrictions on abortion. Our focus is on the laws requiring abortion providers to have admitting privileges at local hospitals. We begin by showing that these laws rest on highly contested factual premises. Some but not all courts examine the state’s justifications for health-related restrictions when applying Casey. Beginning with Judge Posner’s 2013 decision in Planned Parenthood of Wisconsin, Inc. v. Van Hollen,119 some courts read Casey as requiring an inquiry into the question of whether a health-justified regulation of abortion will actually protect women’s health. The Fifth Circuit, by contrast, opposes judicial scrutiny of the state’s claims, insisting instead on a rational-basis review of the state’s justifications for enacting the regulation.120 We review the courts’ competing approaches for their consistency with the Supreme Court’s decisions in Casey and Carhart.

A. The Justification for Admitting Privileges Laws

States claim to protect women’s health by requiring abortion providers to have admitting privileges at a local hospital.121 Yet there are deep questions about whether evidence supports the alleged benefits to women’s health. Abortion during the first trimester of pregnancy, when eighty-nine percent of abortions take place,122 is extremely safe, with complications that require a hospital visit occurring in less than 0.05% of early abortions.123 Of this small number of complications, many are minor, presenting symptoms similar to those of early miscarriage, which is a common reason for emergency-room visits and a condition that emergency-room physicians are accustomed to treating.124

Despite the safety of abortion procedures, states single out abortion for restrictions not imposed on procedures of comparable risk. In Texas, the district court found that at the time of passage of the state law imposing admitting privilege and ambulatory surgical center requirements on abortion, “abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure. . . . [It was] much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny.”125 (As the state’s safety record might suggest, prior to passage of the Texas law, abortion procedures were already subject to rigorous health regulation.)126 The district court found that, despite this safety record, the legislature had singled out abortion clinics for restrictions that were not imposed on facilities providing comparable medical services.127 In Wisconsin, the state stipulated before trial that for no other outpatient procedures were doctors required to have hospital admitting privileges.128 The state explained neither the reason for singling out abortion for special treatment nor the rush to pass its law, which was enacted “precipitously” in 2013.129

In defending the need for admitting privileges, states assert that the requirement serves important credentialing and monitoring functions, assures necessary “continuity of care,” and prevents patient abandonment.130 While the states’ claims imply that doctors who receive admitting privileges are superior in quality, that is not necessarily the case. Requirements for admitting privileges may have nothing to do with quality of care.131 Many hospitals condition the award of admitting privileges on a certain number of patient admissions, setting quotas impossible for most abortion providers to meet when their patients so rarely need hospital care.132 Hospitals may refuse to extend admitting privileges to doctors who perform a procedure to which the hospital’s governing body has religious objections,133 or may withhold admitting privileges for other unspecified reasons.134 Patient care is not likely to be improved by requirements that are medically unnecessary and sufficiently burdensome to shut down the very facilities at which patients seek care.135

A further concern about the quality of the evidence supporting admitting privilege requirements has emerged in recent litigation. An activist named Vincent Rue has organized the set of witnesses who testify across state lines in support of the admitting privilege statutes.136 (Decades ago, Rue played a central role in developing “post-abortion syndrome” or “PAS,” the claim that abortion traumatizes and inflicts psychological harm on women.)137 Rue not only recruits witnesses to appear in court, but sometimes ghostwrites their testimony,138 and his conduct has drawn reproach from judges in Alabama, Texas, and Wisconsin.139 For example, Judge Thompson, rejecting one Rue-recruited expert, said, “Whether Anderson lacks judgment, is dishonest, or is profoundly colored by his bias, his decision to adopt Rue’s supplemental report and submit it to the court without verifying the validity of its contents deprives him of credibility.”140 In the Texas case, Judge Yeakel had this to say:

The credibility and weight the court affords the expert testimony of the State’s witnesses Drs. Thompson, Anderson, Kitz, and Uhlenberg is informed by ample evidence that, at a very minimum, Vincent Rue, Ph.D., a non-physician consultant for the State, had considerable editorial and discretionary control over the contents of the experts’ reports and declarations. The court finds that, although the experts testified that they personally held the opinions presented to the court, the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts’ opinions. Further, the court is dismayed by the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions.141

B. Judicial Review of Admitting Privileges Litigation

How does the dispute over the justification for admitting privileges laws arise in litigation over the laws’ constitutionality? Factual questions concerning the health justification of such laws are distinct from questions concerning their impact on abortion access—the “effects” prong of the undue burden inquiry.

Courts are divided over the need to assess factual justifications for the restrictions. Led by the Seventh Circuit, some courts require the state to demonstrate the factual basis of its claim that restricting abortion promotes women’s health; these courts apply undue burden analysis in a weighted balancing test that attends to the strength of the state’s showing that the restriction achieves that goal.142 The Fifth Circuit, by contrast, asserts that it is wholly improper for judges to examine the factual basis of the state’s claim that a restriction on abortion promotes women’s health. The circuit applies deferential rational-basis review, simply credits the state’s claim to regulate in the interests of women’s health, and then determines whether the law’s impact creates a substantial obstacle.143 In short, the Seventh Circuit reads Casey as requiring courts to evaluate the factual basis of the state’s claim to restrict abortion to promote women’s health; the Fifth Circuit reads Casey to prohibit this very inquiry. In what follows, we contrast these two very different approaches to applying undue burden analysis to health-justified restrictions on abortion.

The Seventh Circuit’s approach to review of admitting privileges legislation, first articulated by Judge Posner, makes factual support for the state’s health interest central in applying the undue burden test. In December 2013, the Seventh Circuit affirmed an order preliminarily enjoining enforcement of a recently enacted Wisconsin admitting privileges requirement.144 Judge Posner observed that while the state justified the requirement solely on the ground of protecting women’s health, the state’s lawyer at oral argument “did not mention any medical or statistical evidence” and “[n]o documentation of medical need for such a requirement was presented to the Wisconsin legislature when the bill that became the law was introduced on June 4 of this year.”145 The medical evidence was “feeble,” Judge Posner said, “yet the burden [was] great.”146 He explained that the judge had to consider the evidentiary basis of the state’s claim that it had health justifications for restricting abortion when the judge applied the undue burden test:

The cases that deal with abortion-related statutes sought to be justified on medical grounds require not only evidence (here lacking as we have seen) that the medical grounds are legitimate but also that the statute not impose an “undue burden” on women seeking abortions. The feebler the medical grounds, the likelier the burden, even if slight, to be “undue” in the sense of disproportionate or gratuitous.147

Judge Posner derived from Casey two crucially important messages: that states seeking to justify a health-related restriction must produce evidence supporting the health basis of their restriction, and that the strength of this evidentiary showing is relevant in determining whether any related burden on access is, in Casey’s terms, undue. Judge Posner reaffirmed this understanding in a subsequent opinion permanently enjoining enforcement of Wisconsin’s admitting privileges law.148

Judge Posner’s opinion adopting this weighted balancing test in Planned Parenthood of Wisconsin v. Van Hollen has proven influential. Judge Thompson cited it in his Alabama admitting privileges decision three months later, observing, “[I]t is not enough to simply note that the State has a legitimate interest; courts must also examine the weight of the asserted interest, including the extent to which the regulation in question would actually serve that interest.”149 On this account, the “weight” of an interest turns on a question of fact: how well the challenged regulation would in fact—“actually”—advance the interest it is asserted to serve. Judge Thompson explained that the court was to take the evidence the state amassed justifying the regulation into account in applying the undue burden framework; he reasoned that “the court examines the severity of obstacles created by the regulation as well as the weight of the State’s justifications for the regulation, and then determines whether the obstacle is more significant than is warranted by the justifications.”150

Another recent opinion requiring an inquiry into the factual basis for a health-justified abortion restriction came from the Ninth Circuit in June 2014. In Planned Parenthood of Arizona v. Humble, the panel preliminarily enjoined an Arizona law requiring doctors to use an outdated protocol for administering the medication that causes an early term abortion.151 States have increasingly attempted to curb the growing popularity of medication abortion152 by forbidding doctors to deviate from the dosage on the FDA-approved label—despite the fact that such “off-label” uses of approved medications are common outside the abortion context,153 and the fact that the medical profession has concluded that, in this instance, a smaller dose is safer and more effective.154 While we have not focused on the medication-abortion controversy,155 Humble reviews a health-justified restriction on abortion and so is directly relevant to our discussion.

In Humble, the Ninth Circuit applies Casey with attention to the question of whether restrictions on abortion are asserted to serve the state’s interest in protecting fetal life or women’s health.156 In examining laws asserted to promote women’s health, the circuit employs a weighted balancing test:

[C]ompar[ing] the extent of the burden a law imposes on a woman’s right to an abortion with the strength of the state’s justification for the law . . . [t]he more substantial the burden, the stronger the state’s justification for the law must be to satisfy the undue burden test; conversely, the stronger the state’s justification, the greater the burden may be before it becomes “undue.”157

Reviewing Arizona’s restriction on medication abortion in Humble, Judge Fletcher observed that the Ninth Circuit’s approach followed from Casey’s direction to determine whether health regulations were “unnecessary,” and approvingly referenced the framework Judge Posner had set forth in Van Hollen as “an approach much like ours”158: “The court in Van Hollen granted a preliminary injunction against the enforcement of the Wisconsin law on the ground that ‘the medical grounds thus far presented . . . are feeble, yet the burden great.’ Here, the ‘medical grounds thus far presented’ are not merely ‘feeble.’ They are non-existent.”159 Judge Fletcher noted that “Arizona has introduced no evidence that the law advances in any way its interest in women’s health.”160

The Fifth Circuit’s approach to applying Casey differs dramatically. In a challenge to the Texas admitting privilege requirement in Abbott II,161 Judge Edith Jones asserted that she was following Casey’s undue burden framework, but she then invoked the Supreme Court’s decision in Gonzales v. Carhart162to infuse the undue burden inquiry with rational-basis review.163 At issue was precisely the question we have been discussing: whether the undue burden framework of Casey-Carhart requires judges to examine the factual basis of a state’s claim to restrict abortion in the interest of protecting women’s health.

Judge Jones initially characterized Carhart as “holding that the State may ban certain abortion procedures and substitute others provided that ‘it has a rational basis to act, and it does not impose an undue burden.’”164 She then reversed the district court’s finding that the state’s admitting privileges law had no rational relationship to protecting women’s health165 with a much more far-reaching claim about the Casey-Carhart framework:

Nothing in the Supreme Court’s abortion jurisprudence deviates from the essential attributes of the rational basis test, which affirms a vital principle of democratic self-government. It is not the courts’ duty to second guess legislative factfinding, “improve” on, or “cleanse” the legislative process by allowing relitigation of the facts that led to the passage of a law. . . . Under rational basis review, courts must presume that the law in question is valid and sustain it so long as the law is rationally related to a legitimate state interest. . . . As the Supreme Court has often stressed, the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment . . . . A law “based on rational speculation unsupported by evidence or empirical data” satisfies rational basis review.166

In this remarkable passage, the Fifth Circuit takes the language in Carhart that applies the undue burden test and uses it to characterize the undue burden test as rational-basis review—the standard of review championed by the dissenting justices in Casey.167 Judge Jones suggests that it is beyond the proper role of a court in a constitutional democracy to inquire into the factual basis of a legislature’s claim that restricts the exercise of the abortion right: “Nothing in the Supreme Court’s abortion jurisprudence deviates from the essential attributes of the rational basis test, which affirms a vital principle of democratic self-government.”168 She thereafter proceeds to reject the Van Hollen approach to applying undue burden: “The first-step in the analysis of an abortion regulation, however, is rational basis review, not empirical basis review.”169

In so reasoning, the Fifth Circuit breaks with the Seventh and Ninth Circuits, which, as we have seen, understand the inquiry into the evidentiary basis of the state’s claim to regulate in the interests of women’s health as part of the undue burden inquiry. The Seventh and Ninth Circuits understand it as part of the question of whether the health-justified law was “unnecessary” and (un)warranted in light of the burdens it imposes on women’s access.170 In the Fifth Circuit, by contrast, a court has no reason to examine the state’s factual support for a health-justified restriction on abortion because “[a] law ‘based on rational speculation unsupported by evidence or empirical data’ satisfies rational basis review.”171 The Fifth Circuit refuses to consider the strength of the state’s justification for regulating as part of the undue burden inquiry.172

Judge Elrod explains in the Fifth Circuit’s subsequent opinion in Whole Woman’s Health v. Lakey,173 admonishing the district court for “evaluat[ing] whether the ambulatory surgical center provision would actually improve women’s health and safety,” that “[i]n our circuit we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.”174 Objecting that examining the factual basis of the state’s claim to protect women’s health would “ratchet[] up rational basis review into a pseudo-strict-scrutiny approach by examining whether the law advances the State’s asserted purpose,” she reasons that “[u]nder our precedent, we have no authority by which to turn rational basis into strict scrutiny under the guise of the undue burden inquiry.”175 The Fifth Circuit has recently reaffirmed this line of cases, applying rational-basis review to the claim that Texas’s interest in protecting women’s health justified enacting the law.176

C. Returning to Casey-Carhart

Is a court required to examine the factual basis of a health-related regulation, or is it forbidden from doing so? Casey and Carhart offer a clear answer to the question. In what follows we show how fundamentally the Fifth Circuit has misapplied those decisions.

The Fifth Circuit has collapsed the Casey-Carhart framework into a form of rational-basis review that accords virtually no protection to the abortion decision as a constitutionally protected right. We show, first, that the Fifth Circuit’s use of rational-basis review is inconsistent with the Court’s reasoning in Carhart. We then demonstrate that the Fifth Circuit’s use of rational-basis review destroys the distinction between the state’s interests in protecting potential life and its interest in women’s health, and in so doing, permits states to violate the restrictions Casey imposes on the means by which the state may protect unborn life.177 Finally, we show that the weighted balancing test employed by the Seventh and the Ninth Circuits is faithful to constitutional values underlying the Casey-Carhart framework, whereas the Fifth Circuit’s rational-basis review is not.

1. Rational Basis and the Casey-Carhart Framework

The Fifth Circuit’s claims about rational basis are not entirely clear. In Abbott II, Judge Jones initially acknowledges that Carhart applied the undue burden framework,178 but she thereafter characterizes the undue burden framework as a rational-basis test,179 as does Judge Elrod in Whole Woman’s Health v. Lakey.180 The Fifth Circuit’s per curiam decision in Whole Woman’s Health v. Cole181 again goes out of its way to reaffirm Abbott II’s rational-basis reasoning.182 Sometimes the Fifth Circuit treats only the question of whether an abortion restriction serves the interests of women’s health as subject to rational-basis review.183 At other times, the circuit makes a broader claim: that the entirety of the undue burden framework is a form of rational-basis review.184 Whichever account the circuit embraces, its rational-basis claims flout both Casey and Carhart.

The Casey framework is not rational basis. As we have observed, rational basis was the standard of review championed by the dissenting justices in Casey.185 Nor did the Court’s ensuing decision in Carhart collapse the undue burden framework into rational basis review. Without a doubt, the Carhart decision bitterly disappointed the Justices who most fervently defended the abortion right.186 That said, even as the majority emphasized the government’s interest in cultivating respect for unborn life, the Court upheld the Partial Birth Abortion Ban Act on terms that accepted the continuing authority of Casey’s undue burden framework and the protection it provides for first- and second-trimester abortions.187

It is true that the Carhart Court refers to rational basis—as we have seen, in the very sentence in which the Court expressly invokes the undue burden framework.188 Whatever Carhart’s reference to “rational basis” means, it is not directing extravagant deference to the legislature of the kind the Fifth Circuit requires. In Carhart itself, the Court does not simply defer to Congress. Significantly, in upholding the Partial Birth Abortion Ban Act, Justice Kennedy observes, “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake . . . . Uncritical deference to Congress’ factual findings in these cases is inappropriate.”189 The Carhart Court probed and, in two instances, rejected congressional findings invoked by the government as reasons for enacting the Partial Birth Abortion Ban Act.190 Probing Congress’s reasons behind enacting the challenged statute is not rational-basis review of the kind that the Fifth Circuit mandates, especially when the Circuit observed that “[a] law ‘based on rational speculation unsupported by evidence or empirical data’ satisfies rational basis review.”191

In Carhart, the Court does employ a form of deference—though not rational-basis review that swallows or supplants Casey’s undue burden framework. In Carhart,the Court rejects the argument that Congress was obliged to provide a health exception to the banned procedure, concluding that the statute withstood at least a facial challenge.192 The Court grounds this conclusion in the district courts’ findings that medical opinion was divided on the need for such an exception,193 reasoning that “[t]he Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”194 The condition of medical uncertainty is established through judicial review—in Carhart itself, this was done through the factfinding of the district courts.

In Whole Woman’s Health v. Cole, the Fifth Circuit seizes on this language as additional warrant for judicial deference, asserting that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.”195 The Circuit is wrong to rely on this language as it does. The medical uncertainty of which the Court spoke in Carhart was anchored in the factfinding of the two district courts whose judgments were on review. By contrast, the Fifth Circuit finds uncertainty by rejecting the factfinding of the district court. In the Texas case, the district court probed the justification of the legislature for enacting H.B. 2 and found no credible evidence to support either the admitting privilege requirement or the ambulatory surgical center requirement.196 The Fifth Circuit found uncertainty in the record, rejecting the district court’s findings and instead crediting the State’s contrary assertions.197 Throughout, the circuit court chastised the district court, admonishing that “[i]t is not the courts’ duty to second guess legislative factfinding, improve on, or cleanse the legislative process by allowing relitigation of the facts that led to the passage of a law.”198 In short, the “uncertainty” the Fifth Circuit finds to warrant deference to the legislature is produced in significant part by deferring to the legislature. If appellate courts can justify deference to the legislature by invoking medical uncertainty that is untethered from facts found and credibility determinations made by the trial court,199 they can easily erode protections for constitutional rights. Whatever deference Carhart might be read to warrant, it cannot be the extravagant deference to the legislature that the Fifth Circuit practices here.

2. How Review of Health-Justified Restrictions Protects the Decisional Right Casey Recognizes

At root, the Fifth Circuit’s extravagantly deferential “rational-basis” decisions err in reasoning about the review of abortion restrictions as if they were ordinary social and economic legislation unconnected to constitutional rights. The Circuit fails to protect the decisional right the Casey-Carhart framework recognizes. States may have a right to regulate the practice of abortion, but, even after Carhart, that prerogative is by no means unconstrained or absolute. In Carhart, the Court emphasized that Casey’s undue burden standard “struck a balance” between protecting “the woman’s exercise of the right to choose” and the ability of the state to “express profound respect for the life of the unborn.”200 To preserve this balance and protect a woman’s right to make “the ultimate decision”201 about whether to carry a pregnancy to term, Casey imposed constitutional limits on the means by which the state could vindicate its interest in protecting potential life.202 Government must persuade women to continue a pregnancy; it cannot obstruct women’s access to abortion.

As we have shown, protecting the woman’s exercise of the right to choose requires judges sharply to distinguish between restrictions on abortion asserted to protect women’s health from those asserted to protect unborn life in order to ensure that state efforts to protect unborn life remain dissuasive in form, as Casey requires. Judicial review that probes the factual basis of the state’s claim to restrict abortion in the interests of protecting women’s health thus protects the exercise of the decisional right that Casey recognizes.

The Texas law demonstrates how a state can enact weakly justified health restrictions on abortion that obstruct women’s efforts to end a pregnancy in ways that do not involve reasoning with women or attempting to dissuade them as Casey requires. Strikingly, as it defended the Texas statute, the state offered a series of different characterizations of its underlying justification, over time coming to describe the admitting privileges law as protecting both women’s health and unborn life.203 Judge Yeakel criticized the state for attempting to supplement health-protective justifications with fetal-protective justifications, reasoning that under Casey it was unconstitutional for the state to protect unborn life by creating “obstacles to previability abortion” rather than by counseling against the decision to seek an abortion:

The primary interest proffered for the act’s requirements relate to concerns over the health and safety of women seeking abortions in Texas. To the extent that the State argues that the act’s requirements are motivated by a legitimate interest in fetal life, the court finds those arguments misplaced. In contrast to the regulations at issue in Casey, the act’s challenged requirements are solely targeted at regulating the performance of abortions, not the decision to seek an abortion. Here, the only possible gain realized in the interest of fetal life, once a woman has made the decision to have a previability abortion, comes from the ancillary effects of the woman’s being unable to obtain an abortion due to the obstacles imposed by the act. The act creates obstacles to previability abortion. It does not counsel against the decision to seek an abortion.204

Judge Yeakel thus understood that preserving Casey’s framework requires first, distinguishing fetal-protective and health-protective justifications for abortion restrictions, and second, probing the factual basis of health-justified restrictions to ensure they serve health-related ends.

In reversing Judge Yeakel and rebuking him for examining the evidence that supported the state’s claim to restrict abortion in the interests of protecting women’s health,205 Judge Elrod never responded to his objection that Texas was protecting potential life by nondissuasive means, and was therefore violating Casey’s protection for women’s decisional autonomy. The Fifth Circuit’s hyperdeferential practice of rational-basis review expressly sanctions this fusion and scrambling of rationales.

One could explain the Fifth Circuit’s failure to protect women’s decisional autonomy as an expression of deference to the state’s interest in protecting potential life. But one could also explain the Fifth Circuit’s failure to protect women’s decisional autonomy as an expression of a very particular view of women, one that elevates their reproductive capacity over other attributes of personhood in an explicit manner not seen in a judicial opinion for many years. When the parties in Abbott II called upon the Fifth Circuit to differentiate review of abortion laws enacted to protect potential life and to protect women’s health, Judge Jones refused, reasoning that “no such bifurcation has been recognized by the Supreme Court.”206 She then asserted that the two interests cannot be bifurcated because laws that protect a woman’s health protect her as a childbearer: “[T]he state’s regulatory interest cannot be bifurcated simply between mothers’ and children’s health; every limit on abortion that furthers a mother’s health also protects any existing children and her future ability to bear children even if it facilitates a particular abortion.”207

As the Ninth Circuit understands but the Fifth Circuit does not, Casey’s undue burden framework requires courts to differentiate the state’s interests in protecting potential life and women’s health.208 In protecting women’s health, the government is not protecting potential life, a conflation of interests the Fifth Circuit sanctioned in Abbott II and the Fourth Circuit sanctioned in Greenville.209 The government has long regulated women’s conduct with the view that women are defined by their role in childbearing, an understanding the Court endorsed more than a century ago in Muller v. Oregon.210But Casey rejects this traditional view of women211 and instead insists that respect for women’s dignity requires giving women control over the decision whether to become a mother.212 That is why the undue burden test restricts the means by which the government may protect unborn life: the government cannot prevent women from obtaining an abortion but instead must, if it chooses, seek to persuade women to bring a pregnancy to term through the provision of truthful, nonmisleading information.

3. Comparing Review of Health-Justified Restrictions Across Circuits

As courts outside the Fifth Circuit understand, judicial review that differentiates between the state’s interest in protecting potential life and the state’s interest in protecting women’s health secures Casey’s protection for women’s decisional autonomy. Ensuring that health-justified restrictions actually and effectively serve health-related ends is, of course, also required by Casey’s language prohibiting “unnecessary” health laws that impose “undue burdens.”213

Outside the Fifth Circuit, proper judicial review under Casey takes at least two forms. First, judges look to weak evidence in support of a health-restriction in finding violations of the undue burden standard’s purpose prong.214 For example, in Wisconsin, Judge Conley ruled that the state’s admitting privileges law was enacted for the improper purpose of imposing a substantial obstacle to obtaining an abortion.215 He rested this judgment on classic indicia of pretext: the state introduced no evidence in support of the admitting privileges law, imposed the requirement with one weekend’s notice, and targeted abortion providers only, exempting procedures of greater risk.216 In affirming the trial court’s finding of a purpose to impose a substantial obstacle, Judge Posner additionally emphasized the fact that the state had singled out abortion for health requirements that it hadn’t imposed on procedures of greater risk:

Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure—abortion—that rarely produces a medical emergency. A number of other medical procedures are far more dangerous to the patient than abortion, yet their providers are not required to obtain admitting privileges anywhere, let alone within 30 miles of where the procedure is performed.217

Inconsistent conduct, singling out abortion, or weak factual support for the restriction can supply objective evidence of unconstitutional purpose. (“Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are.”)218

Yet proof of collective purpose is difficult—even when purpose is not defined by difficult-to-satisfy liability rules of the kind that prevail in the equal protection area219—because judges are generally reticent to accuse state legislators of bad faith.220 This problem seems especially acute in the abortion context. Even if the legislators who enact a health-justified restriction on abortion publicly announce their aim to limit access to the procedure,221 judges may understand such legislators to act for benign rather than bigoted ends, a difference that, for many, may mitigate the legislators’ choice of unconstitutional means—especially if the purpose of the law is considered without attention to the law’s impact on women.

Considering the factual support for a health restriction under the effects prong of the undue burden inquiry avoids some of the difficulties of a purpose-focused approach. The weighted balancing test that Judge Posner employed in applying the undue burden framework to health-justified restrictions can be understood as smoking out unconstitutional motivation without ever requiring judges to identify direct evidence of illicit purpose. Examining the facts that justify a health regulation is also important in evaluating the law’s effects. Considering the extent to which a law advances the state’s interest in protecting health is crucial in determining whether the burden it imposes on women’s choice is warranted: “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”222 A weighted balancing test of this kind seems to faithfully implement Casey’s directions to judges to distinguish between necessary and “unnecessary” health regulations.223 The weight of the health justification for a law is thus relevant to the effects as well as the purpose prongs of the Casey inquiry: as Judge Posner observed, if the state’s showing of health need is weak, a judge has stronger grounds for finding the law’s impact on access to be “undue.”224

This method of incorporating the evidence in support of a health-justified restriction on abortion into the undue burden inquiry seems to us unquestionably correct. Undue means unwarranted. Undue means disproportionate. Undue is a relative judgment. As the judges who employ the weighted balancing test understand, the question of what adverse effects are “undue” depends on the strength of the state’s demonstration of a health justification for the restriction on abortion—on whether a restriction is “unnecessary” to protect women’s health and hence imposes an “undue burden” on women’s access to abortion.

Precisely because undue means unwarranted or disproportionate, the judgment about which adverse effects are undue requires balancing the extent to which a law advances the state’s interests against the burdens the law will impose on the exercise of a woman’s constitutional right. For this reason, judgments about which burdens are undue will vary across contexts. The proposition might seem unremarkable, but it stands dramatically at odds with the practice of courts that derive rules from Casey about the kinds of adverse effects that are licit under the undue burden test.

Exemplary are decisions of the Fifth Circuit that purport to derive from Casey rules of general application about driving distances and undue burdens. Consulting the record in Casey, Judge Owen observed:

In Casey, the Supreme Court considered whether a Pennsylvania statute that de facto imposed a twenty-four-hour waiting period on women seeking abortions constituted an undue burden. The Court concluded that it did not, despite the fact that it would require some women to make two trips over long distances. An increase in travel distance of less than 150 miles for some women is not an undue burden on abortion rights.225

Judge Jones approvingly affirmed and extended this reasoning:

[T]he Supreme Court recognized that the 24-hour waiting period would require some women to make two trips over these [long] distances . . . [and] nonetheless held that the Pennsylvania regulation did not impose an undue burden. We therefore conclude that Casey counsels against striking down a statute solely because women may have to travel long distances to obtain abortions.226

Here, as elsewhere, the Fifth Circuit distorts Casey. The joint opinion evaluated the constitutionality of the driving distances in question as effects of a statute imposing a twenty-four-hour waiting period;227 the joint opinion judged these burdens acceptable (not “undue”) because they were an incident of the state’s effort to dissuade women from ending a pregnancy. The opinion could not be clearer: “Because the informed consent requirement facilitates the wise exercise of [the abortion] right, it cannot be classified as an interference with the right Roe protects.”228 The form of the restriction mattered centrally to authors of the joint opinion as they determined what burdens on exercise of the right were undue:

What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.229

As these passages of Casey illustrate, the question of whether an adverse effect or burden is undue depends on the manner in which the state is vindicating its interest in regulating abortion. Burdens that the joint opinion found acceptable as an incident of the state’s efforts to dissuade women from seeking an abortion do not represent generally acceptable measures of the burdens the state may inflict on women when it closes clinics for unnecessary or weakly supported health reasons.

Beyond this, the deeper error of the Fifth Circuit’s reading of Casey is its claim to apply the undue burden standard—a standard that vindicates a constitutional value—as a context-insensitive rule. The Court embraced the undue burden framework as a way to protect women’s liberty: the conditions in which women would exercise their constitutionally protected choice whether to become a mother.230 Casey protects women’s liberty by restricting the means by which the government may protect potential life. If the government chooses to protect potential life, it may not obstruct women’s access to abortion, but must persuade women to choose motherhood by means that respect women’s dignity.

In upholding a law that was enacted for the nominal purpose of protecting women’s health, yet would foreseeably shut down most abortion clinics in the state—leaving millions of Texas women to exercise the choice Casey protects by driving hundreds of miles, if they can231—the Fifth Circuit mocks Casey,232 if not the Constitution itself.

Conclusion

Caseys language and its logic both point in the same direction: Casey requires judges to weigh the evidence supporting a health restriction on abortion against its impact on women’s access. If judges do not do so, “unnecessary health regulations” will erode constitutional protection for women’s choices. Casey requires states to protect potential life by means that respect women’s dignity. The Court has reaffirmed constitutional protections for dignity in Lawrence v. Texas233 (where Justice Kennedy quotes Casey explicitly),234 and more recently in United States v. Windsor235 and Obergefell v. Hodges.236 No less is required here.

Casey is not the opinion either of us would have written. Each of us believes the Constitution rightly understood provides more substantial protections for a woman’s decision whether to become a mother, especially given the exclusionary ways this nation has treated those who bear and rear children.

That said, there are reasons for the Court to stand behind its quarter-century-old decision that reach beyond stare decisis. We understand Casey to represent the Court’s good-faith effort to pronounce the Constitution’s meaning for a divided nation. With Americans in bitter disagreement about the abortion question, the Court invoked the Constitution as a ground on which they were united and on which they could be asked to recognize each other’s views. In Casey, the Court interpreted the Constitution in a “call[] [for] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”237 The Court allowed the states more latitude to protect potential life ifthe states did so by means the Court understood to respect a woman’s constitutionally protected decision whether to become a mother. As a nation divided, we need practices of mutual respect no less today than we did in 1992.

Casey did not authorize health-justified restrictions on abortion that are in fact unnecessary to protect women’s health and that obstruct women’s access to abortion. Judges who are willing to accept Casey understand this and strike down the regulations we have discussed here. Judges at war with Casey defer to the states’ rationales in the face of overwhelming evidence that the health justifications for the restrictions offer a fig leaf for the expression of antiabortion sentiment.

The stakes are high as the Court reviews a new generation of abortion restrictions that do not simply communicate the state’s preference for childbirth but instead threaten wholesale destruction of the clinic infrastructure that enables women to exercise their constitutional right. Will states be permitted to restrict abortion in ways the Constitution prohibits merely by relabeling an interest in protecting unborn life as an interest in protecting women’s health? Sanctioning laws of this kind threatens to make hollow the right Casey reaffirmed—all the more acutely so for the growing number of women living in jurisdictions hostile to abortion.

We have frequently referred here to women’s dignity as a value that Casey sought to protect. At this crucial juncture in the never-ending abortion controversy, we suggest that courts must also be attentive to another claim to dignity: the dignity of law itself. If the decision announced nearly a generation ago under an intense public spotlight can be so easily manipulated and evaded, among the betrayed will be not only the women of America, but the understanding that Casey affirmed: that constitutional law matters, and matters especially in those precincts where we most deeply disagree.