The Yale Law Journal

VOLUME
126
2016-2017
Forum

The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health

11 Oct 2016
Linda Greenhouse & Reva B. Siegel

In Whole Woman’s Health, the Court defied those expectations and held that Casey’s undue burden framework imposes real limits on state efforts to restrict women’s access to abortion. The opinion decisively reaffirms robust judicial protection for the right declared two generations ago and under relentless attack for much of the time since.

This Essay draws on our recent article on health-justified abortion restrictions—Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice5to offer a brief account of the social movement strategy and the lower court rulings that led to the judgment in Whole Woman’s Health. We showthat in Whole Woman’s Health the Court applies the undue burden framework in ways that have the potential to reshape the abortion conflict.

The Court’s most recent abortion decision repudiates rational-basis claims about Casey.6 Crucially, the decision instructs judges how to apply the Casey framework in evaluating the benefits and burdens of restrictions on abortion. In Whole Woman’s Health, the Court weighed Texas’s interest in enacting the challenged law, with close attention to scientific evidence about the health benefits of regulating abortion,7 and it evaluated the burdens imposed by the Texas law, with close attention to the many ways abortion restrictions can adversely affect the conditions in which women exercise their rights.8 The methods the Court employed to identify and to balance benefits and burdens call into question myriad health-justified restrictions on abortion.9 The guidance the Court provided judges in identifying benefits and burdens under the Casey framework applies in cases challenging fetal-protective restrictions on abortion as well.10

I. the “trap law” strategy

In 2013 Texas enacted a law requiring abortion providers to secure admitting privileges at nearby hospitals and requiring clinics to outfit themselves as ambulatory surgical centers.11 The asserted purpose of the law was to protect women’s health. In an important sense the law had its origins in the Casey decision itself. In the years preceding Casey, opponents of abortion sought Roe v. Wade’s12 overruling.13 Instead the Court narrowed Roe but reaffirmed the right to abortion before fetal viability.14 It held that a state could enact legislation to promote the state’s interests in potential life and in women’s health throughout pregnancy, so long as the laws did not impose an undue burden on a woman’s decision about whether to carry a pregnancy to term.15 The Court defined 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.”16 In upholding Pennsylvania’s requirement of a waiting period and mandatory counseling,17 Casey authorized forms of fetal-protective regulation that Roe had barred. Opponents quickly seized on this opportunity to enact laws that might accomplish incrementally and indirectly what Casey forbade their doing directly.

Some of the laws that states enacted sought, like the measures in Casey, to dissuade women from acting on a decision to end a pregnancy. But others imposed requirements on abortion providers in the name of protecting women’s health. These laws—which critics dubbed TRAP laws, for “Targeted Regulation of Abortion Providers”—single out abortion for onerous forms of regulation not applied to procedures of equivalent or greater medical risk.18 By singling out abortion providers for onerous regulation concerning building standards, licensing, telemedicine, and admitting privileges, TRAP laws work either to raise the cost of providing abortions or to put providers out of business altogether.19

Americans United For Life (AUL), an organization dedicated to ending abortion through its incremental regulation, is a primary proponent of the woman’s health justification for restricting abortion and an architect of TRAP laws, including those at issue in the Texas case.20 The group provides states model legislation that it claims will protect life and protect women’s health.21 The organization’s recent past-President, Charmaine Yoest, was frank in describing AUL’s state legislative strategy: “As we’re moving forward at the state level, we end up hollowing out Roe, even without the Supreme Court.”22 Dan McConchie, the organization’s vice president of government affairs, explained, “States can’t outlaw abortion. That does not mean there’s a constitutional right to abortion being convenient.”23

AUL advised Texas in drafting its law.24 The law’s supporters well appreciated that it would close clinics. The day after the Texas Senate approved the bill requiring providers to obtain admitting privileges and to outfit themselves as ambulatory surgical centers, 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. “We fought to pass S.B. 5 thru the Senate last night, & this is why!”25 He then followed with a second tweet: “I am unapologetically pro-life AND a strong supporter of protecting women’s health. #SB5 does both.”26

The district court found that, prior to the law’s passage, abortion in the state of Texas was “extremely safe,” that the law’s requirements did not make the procedure safer, and that the combined operation of the admitting privileges and the surgical center requirements would close “almost all abortion clinics in Texas,” and thus create an “impermissible obstacle” to abortion in the state.27 But in a series of opinions the Fifth Circuit reversed and rebuked the district judge for interfering with the prerogatives of the legislature. The Fifth Circuit read the Supreme Court’s decision in Gonzales v. Carhart as incorporating rational basis review into the undue burden inquiry, and then, even more expansively, insisted that “[n]othing 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.”28 It forbade the trial court from examining the evidence supporting the state’s reasons for regulating: “The first-step in the analysis of an abortion regulation, however, is rational basis review, not empirical basis review.”29 The Circuit admonished the district court for “evaluat[ing] whether the ambulatory surgical center provision would actually improve women’s health and safety,” asserting that “[i]n our circuit we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.”30

In characterizing the Casey framework as mandating rational basis deference to state legislatures, the Fifth Circuit broke with the Ninth and Seventh Circuits, which understood the undue burden inquiry to require judges to examine the evidentiary basis of the state’s claim to regulate in the interest of women’s health, and then to balance whatever medical benefit, if any, the regulation conferred against the burden the regulation imposed.31As Judge Richard Posner put it, “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”32

II. how casey constrains trap laws

As we have argued in this Journal, the Fifth Circuit flatly misconstrued the Casey framework.33 Of course, Casey requires judges to balance the benefits of regulating abortion against the burdens on access that a law imposes; how else would a judge determine a burden is “undue?”34 The determination of which burdens are “undue” is inherently comparative and contextual.35 And it is empirical. In applying undue burden analysis to health regulations in Casey itself, the Court observed that “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.”36 How are judges to determine whether a health regulation is “unnecessary” without examining the evidence supporting the state’s case for regulating?

But, as we have argued, there is a deeper reason why judges must examine the factual basis of the state’s claim to regulate abortion in the interests of protecting women’s health. In Casey, the Supreme Court revised the Roe framework to allow the state greater opportunities to protect life throughout pregnancy.37 Yet, at one and the same time, Casey affirmed a woman’s right to decide whether to carry a pregnancy to term: “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.”38 For this reason, Casey imposed crucial restrictions on the means by which the government could protect fetal life: “[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.”39 Under Casey, states can protect potential life by persuading a woman to carry a pregnancy to term, but may not do so by obstructing her access to abortion.

Thus, while government can enact dissuasive regulation to protect unborn life, it cannot achieve that end through unnecessary health regulations that have the effect of obstructing access. Yet at numerous junctures Texas was open in claiming a fetal-protective goal in enacting the admitting privileges and surgical center requirement. The Governor of Texas explained that “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women,”40 and state officials repeatedly acknowledged that they sought to protect unborn life as well as women’s health.41

Even when the state was not expressly invoking its interest in protecting unborn life, it made that goal apparent in the way it singled out abortion for health regulation. Texas engaged in what we have called “abortion exceptionalism,” treating the health regulation of abortion differently from other forms of health regulation.42 Singling out abortion for onerous health regulation that is not applied to other medical procedures of similar or even greater risk, out of express or implied concern for unborn life, is constitutionally suspect.43 Disparate and unwarranted health regulation that hinders exercise of women’s choice violates Casey’s protections for women’s dignity.44

III. protecting the whole woman

The Supreme Court’s opinion in Whole Woman’s Health is remarkable for its total repudiation of the Fifth Circuit’s reading of the undue burden framework,45 and more broadly, of the TRAP law strategy that Texas and other states employed.

Specifically rejecting the reasoning of the Fifth Circuit, Justice Breyer insists that Casey requires balancing: “The rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”46 In “weigh[ing] the asserted benefits against the burdens . . . the District Court applied the correct legal standard.”47 And the Court chastises the Fifth Circuit for suggesting that rational basis applied, observing that the Court of Appeals was “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.”48 The Court further emphasizes that judicial examination of the evidence supporting the state’s interest in regulating is an essential portion of the undue burden inquiry, crucial in both the Court’s decisions in Casey and in Carhart.49 Where the Fifth Circuit held that judges may not inquire into the factual grounds of the state’s interest in regulating, the Supreme Court holds that judges must, quoting Carhart: “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”50 The Court’s decision is rich with factual findings of the district court and of amici that bear on the balance of benefits and burdens in the case.

As we have observed, Casey provides a framework to evaluate health-justified restrictions on 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.”51 Whole Woman’s Health applies Casey’s undue burden framework to the admitting privileges and surgical center requirements and concludes that “neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes.”52

Some commentators have read Whole Woman’s Health as little more than a mechanical exercise in cost-benefit analysis.53 But reading the opinion in this fashion overlooks how the Court clarifies the law defining what counts as a benefit and a burden to be balanced within the Casey framework. In what follows, we examine how the Court assessed the benefits conferred and burdens imposed by the Texas law. Each of these aspects of the Court’s ruling will guide judges called upon to determine the constitutionality of health-justified restrictions on abortion; as we show, they should guide evaluation of fetal-protective restrictions on abortion as well.54

A. Evidence-Based Balancing

Justice Breyer’s unusually close examination of the facts as he identifies and balances the benefits and burdens of the Texas law models a kind of scrutiny that few TRAP laws could withstand.55 In reviewing the detailed evidence provided in trial by the plaintiffs’ experts and on appeal by medical organizations as amici, Justice Breyer documents the “virtual absence of any health benefit”56 conferred by the Texas law. And examining the evidence about the law’s impact—its role in closing clinics and shrinking the available medical care—Justice Breyer concludes that the law was at cross-purposes with its stated ends.57 A “commonsense inference,” he observes, is that the effect of the Texas law “would be harmful to, not supportive of, women’s health.”58

This evidence-based balancing of the law’s benefits and burdens calls into question Texas’ very purpose in enacting the state’s health-justified restrictions on abortion. While the majority never explicitly states that Texas enacted the admitting privileges and surgical center requirements with a purpose to obstruct women’s access to abortion, the Court’s deep skepticism of the state’s actual motivation shines through the opinion. The Court repeatedly observes that the restrictions served little or no health benefit, and takes account of many ways the law adversely affected women’s access.59 Judges are extremely reluctant to accuse the government of acting with an unconstitutional purpose.60 But Whole Woman’s Health provides a textbook illustration of how a court can show unconstitutional purpose without explicitly asserting it.

The fact that, as Justice Breyer shows, Texas singled out abortion for onerous forms of health regulation that it did not apply to procedures of much greater risk only amplifies this suggestion.61 In her concurring opinion, Justice Ginsburg also emphasizes that the state had singled out abortion for onerous regulation that it did not direct at procedures of greater risk, and observes more bluntly: “Given those realities, it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’”62

The Court invalidates the Texas law on grounds that cast into doubt the constitutionality of other TRAP laws that single out abortion for special health regulation—not only ambulatory surgical center and admitting-privileges laws,63 but also, for example, laws that prohibit the use of telemedicine for medication abortion only64 or that require abortion providers to give inspectors access to many more patient records than health care professionals who “perform more complicated procedures and have more adverse outcomes” must supply.65

In evaluating the state’s interest in restricting abortion, the Court closely scrutinizes scientific evidence marshaled by opposing parties. Evidence-based balancing of this kind will guide courts in evaluating the state interest in enacting health-justified restrictions on abortion such as laws in Texas and Kansas requiring scientifically inaccurate warnings that abortion causes breast cancer.66 Courts must also weigh scientific evidence when evaluating counseling laws in at least nine states requiring abortion providers to inform women that they are more likely to experience psychological harm if they obtain abortions than if they carry their unplanned pregnancies to term67—claims that social scientists have debunked.68 Evidence-based balancing of this kind should also guide courts in evaluating fetal-protective abortion restrictions that rest on contested factual claims—for example, claims that abortion before viability inflicts fetal pain.69

B. Evaluating the Impact of Abortion Restrictions on Women’s Lives

Another groundbreaking and perhaps unanticipated aspect of the Whole Woman’s Health opinion is the Court’s manifest concern for the impact of TRAP laws on women. The Fifth Circuit’s narrow reading of Casey would seem to permit the government to impose any burdens on women’s access to abortion short of a criminal ban. Whole Woman’s Health categorically rejects that view.

In Whole Woman’s Health, the Court evaluates the burdens of abortion restrictions with the same care it devotes to evaluating the benefits of abortion restrictions. In identifying the burdens imposed by the Texas law, the Court describes how enforcing the law would transform women’s experience of abortion, and treats these changes in the conditions of access as constitutionally cognizable harms to women. The Court observes that the admitting privileges law led to the closure of half of Texas’ clinics, and notes: “Those closures meant fewer doctors, longer waiting times, and increased crowding.”70 To this Court it matters not only whether women can ultimately manage to get an abortion, but also how the state degrades the conditions in which women must make and act on decisions about abortion. The Fifth Circuit read Casey as authorizing state laws that inflict on women increased driving distances of up to 150 miles.71 But Whole Woman’s Health repudiates this understanding of Casey. The Court recognizes that, especially when considered in combination with other burdens, increased driving distances may count as a constitutionally cognizable obstacle to women’s exercise of their rights.72

While the Fifth Circuit reasoned as if Casey and the Constitution allowed the state to impose almost any obstacle to abortion short of criminalization, in Whole Woman’s Health the Court assesses the impact of an abortion restriction in constitutional terms sensitive to women’s experience in making and carrying out a decision to end a pregnancy. The Court considers restrictions cumulatively and in context, describing how, taken as a whole, they will alter the lived conditions of exercising the abortion right. These concerns are evident in the way the majority assesses the impact of the surgical center requirement:

[I]n the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand . . . may find that quality of care declines.73

In analyzing how a restriction on abortion will detrimentally alter the conditions in which women exercise their right to an abortion, the Court assesses constitutionally cognizable harms in ways that should guide judges in applying the undue burden framework to laws enacted to protect potential life as well as women’s health. Whole Woman’s Health does not speak to the weight that any given judge will attach to the state’s interest in enacting restrictions on abortion to protect fetal life. But the decision contains law governing the identification of benefits and burdens in such cases. The decision guides judges in evaluating claims of scientific fact that a state may assert to justify fetal-protective regulation,74 and the decision guides judges in evaluating the burdens on women’s access to abortion that fetal-protective restrictions may impose. For these reasons, Whole Woman’s Health will have consequences for the constitutionality of fetal-protective as well as health-justified restrictions on abortion.

Conclusion

In securing women’s control over the abortion decision, Casey safeguards women’s liberty, equality, and dignity.75 We have argued that this core constitutional commitment should continue to guide judges in evaluating the constitutionality of abortion restrictions, whether health-justified or fetal-protective.76

Whole Woman’s Health does not expressly discuss the constitutional values at the core of the abortion right. But the Court demonstrates its attention to the constitutional values at stake in the care it devotes to scrutinizing the facts77 and to identifying and balancing benefits and burdensunder the Casey framework. Concern for protecting women’s liberty, equality, and dignity guides the majority’s close scrutiny of the rationale for health regulations that obstruct access to abortion, and its sensitivity to the impact of these laws on women’s lives.

Linda Greenhouse is Joseph Goldstein Lecturer in Law, Yale University. Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law, Yale University. For comments on the manuscript, we thank Jack Balkin, Douglas NeJaime, Neil Siegel, and Priscilla Smith. For research assistance, we thank Olivia Horton and Emma Roth.

Preferred Citation: Linda Greenhouse & Reva B. Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health, 126 Yale L.J. F. 149 (2016), http://www.yalelawjournal.org/forum/the -difference-a-whole-woman-makes.