Whole Woman’s Health – Some preliminary thoughts on benefits, purposes, and fetal status

By Jonathan Will

The Supreme Court’s decision in Whole Woman’s Health is sure to be dissected in the coming days, weeks, and months.  In the meantime, I wanted to quickly reengage the discussion about the status of the “purpose prong” of Casey and what, if anything, Whole Woman’s Health tells us about it.  While Justice Breyer’s analysis in the majority opinion does not seem to be couched expressly in terms of Casey’s purpose prong, the majority’s willingness to assess the applicable laws’ benefits may ultimately be purpose dressed in different clothing.  If there is not sufficient evidence of a law’s benefit, there could be a problem.

As a quick refresher, recall that Casey prohibits laws that have either the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.  While most folks can readily associate Casey’s “undue burden” test in terms of abortion restrictions that have the effect of placing obstacles, Priscilla Smith and Caitlin Borgmann, have written about courts seemingly ignoring Casey’s other mandate that laws should not have the purpose of even trying to place such obstacles (regardless of whether they succeed in creating that effect).  This avoidance of the purpose prong coupled with great deference to the asserted justifications of the legislature (without the kind of benefits inquiry seen in Whole Woman’s Health) has historically led to many TRAP (targeted regulation of abortion provider) laws being upheld.

Level of Judicial Scrutiny

I first wrote about this issue for Bill of Health back in 2014 when, in a span of four months, the 5th Cir issued seemingly disparate rulings involving the admitting privilege laws in Texas (upheld by 5th Cir) and Mississippi (struck down by 5th Cir).  One thing I noted back then was that, in the 5th Circuit’s Texas decision, the panel seemed to engage in a sleight of hand by beginning its analysis with rational basis review.  It asked whether the admitting privilege requirement was rationally related to a legitimate end (women’s health).  Because great deference is given to legislative intent under rational basis review, the panel had no trouble determining that the law had a valid purpose under Casey and that the law did not otherwise impose an undue burden.

In Whole Woman’s Health, Justice Breyer repudiated this approach stating that it was “wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty interest with the less strict review applicable where, for example, economic legislation is at issue.”  In other words, Breyer reminded us that Casey’s test is supposed to be more stringent than rational basis.  Breyer also emphasized the importance of judicial review of the evidence in the record regarding legislative findings.  Breyer suggests that this is consistent with Gonzales v. Carhart, but there is little doubt in my mind that when the Court upheld the federal ban on partial birth abortions nine years ago, Justice Kennedy was willing to give far more deference to the legislature’s views about the lack of medical need for the banned procedure.

Breyer’s authorization to the courts to explore the evidentiary record may ultimately serve as the other side of the “purpose prong” coin.  This is true even though Breyer never expressly says that the Texas legislature had an illicit purpose (in violation of Casey) by virtue of enacting the admitting privilege or surgical-center requirements.  And while the majority does evaluate the increased waiting times due to closure of most of the clinics and the resulting increased driving time/mileage, these increased burdens were “viewed in light of the virtual absence of any health benefit.”

So while we still do not know how many miles is too many, nor how much waiting is too long, we should not expect lower courts to give the type of deference to the legislature’s stated purposes as we have seen in the past.  And at least in Whole Woman’s Health, the lack of the laws’ benefit coupled with some level of increased burdens allowed the Supreme Court to agree with district court’s finding that the laws imposed an unconstitutional burden.

But What about Different Facts?

Because the Supreme Court declined review, we also now know that the Mississippi and Wisconsin laws requiring abortion providers to have admitting privileges at nearby hospitals will not be going into effect.  Given how fact driven these cases are, this is unfortunate in the sense that it would have been useful to see Breyer’s analysis in action a couple of more times.  In Mississippi, where there is only one active clinic that provides abortion services, different facts could make all the difference.

As I highlighted back in 2014, imagine a legislative finding (supported by at least some evidence) suggesting that Mississippi’s one clinic has sufficiently poor conditions to warrant the introduction of stricter regulations regarding staffing, facilities, and the like.  Imagine further that the clinic operators could not afford to make such changes, and so needed to close the doors.  How would these laws fair under Whole Woman’s Health?  Would the majority of the Court focus more on the evidence supporting the legislative findings, or more on the fact that Mississippi would no longer have an abortion clinic, which would force women to drive out of state to receive these services?  Keep in mind that the distances would still be shorter than those facing some women in Texas had those laws been upheld.

Many commentators have highlighted (correctly, I think), that Breyer’s analysis will make it easier to challenge TRAP laws.  But such commentators are also correct that much remains to be seen as lower courts start to weigh the benefits (lack of legitimate purpose?) of the numerous abortion restrictions that exist and will continue to be implemented by the states.

Fetal Status not Implicated

As Cilla Smith pointed out in her amicus brief (linked above), it is noteworthy that the laws struck down in Whole Woman’s Health (an opinion joined by Kennedy) did not directly relate to protection of fetal life (nor treatment of fetuses more generally).  In Gonzales v. Carhart, on the other hand, Justice Kennedy authored the opinion that upheld a federal ban on partial birth abortions.  That law, unlike the TRAP laws before the Court in Whole Woman’s Health, was tied much more closely to fetal status.  It was here that Kennedy expressed his view that the fetus is “by common understanding and scientific terminology . . . a living organism.”

As mentioned, in Carhart Kennedy seemed much more willing to accept tenuous statements about the relationship between the type of abortion procedure and coarsening societal views about all “vulnerable and innocent human life.”  To that end, Kennedy’s vote may not be nearly as secure in cases that involve laws restricting access to abortion based on fetal pain, fetal disability or gender, gestational age, or those otherwise tied more closely to fetal status as a living organism.

3 thoughts to “Whole Woman’s Health – Some preliminary thoughts on benefits, purposes, and fetal status”

  1. Fatal pain raised several issues. Apart from abortion, some treatments that pregnant patients have to do are influenced as the fatal can feel pain as early as 2 month old the latest studies showed. But there should be ways out. Drug design still can’t address the medication problem during pregnancy.

  2. Excellent commentary. To the extent that the dissent (and critics of the opinion in general) complains that the Court’s searching inquiry into the comparative benefits and burdens of the TRAP laws imposes a higher standard of review than set out in Casey, you make a great argument that this inquiry is, in fact, consistent with an analysis of the “purpose” prong. If only the Court had stated this as clearly as you have!

  3. Like it. Excellent commentary. To the extent that the dissent (and critics of the opinion in general) complains that the Court’s searching inquiry into the comparative benefits and burdens of the TRAP laws imposes a higher standard of review than set out in Casey, you make a great argument that this inquiry is, in fact, consistent with an analysis of the “purpose” prong. If only the Court had stated this as clearly as you have!

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