Justice Kennedy's Disastrous Defection--and Its Likely Limits

The Whole Women’s Health case was a near-total defeat for those who think, as I do, that the Constitution does not support a right to elective abortion, and who further believe that abortion in most circumstances is gravely wrong because it ends a new human life. To put this latest setback in perspective, however, it should be remembered that the supposed compromise arrived at in Casey by Justices O’Connor, Kennedy, and Souter has always been tilted heavily against protecting fetal life. The Casey joint opinion reaffirmed a woman’s right to an abortion for any reason prior to fetal viability. That holding ensured that the states would remain largely powerless to protect pre-viable fetuses.

Casey’s co-authors did, however, acknowledge that the strict scrutiny Roe and subsequent cases used to strike down virtually all abortion regulations was inconsistent with the important state interests in protecting fetal life and enhancing maternal health. Accordingly, Casey replaced strict scrutiny with the undue-burden test, which invalidates abortion regulations whose purpose or effect is to erect a “substantial obstacle” to women’s access to abortion. In my view, the single most damaging feature of Justice Breyer’s majority opinion in Whole Women’s Health is its reworking of the undue-burden test so that it more closely resembles strict scrutiny.

To understand the significance of Justice Breyer’s reinterpretation, we must begin with Casey’s explanation and application of the undue-burden test. Borrowing from an approach championed by Justice O’Connor in pre-Casey cases, the plurality used the phrase “undue burden” to signify that a regulation would be invalid if it imposed so great a burden on women’s access to elective abortion as to “deprive[] women of the ultimate decision.” Thus, whether an obstacle is “substantial” for purposes of the undue-burden standard depends solely on how difficult it is to overcome; and that in turn dictates an inquiry which focuses solely on the regulation’s actual or intended impact on women’s access to abortion. Consistent with this analysis, the Casey joint opinion evaluated a handful of challenged abortion regulations by examining whether each was reasonably related to a legitimate state interest (and hence not intended to interfere with abortion access), and whether its impact on women’s ability to obtain abortions rose to the level of a “substantial obstacle.” In sum, for twenty-some years the undue-burden test has generally enabled states to enact reasonable regulations that sought to persuade women to carry their pregnancies to term, or required abortion clinics to adhere to standards conducive to maternal health. Throughout that time, Justice Kennedy has insisted on adhering to the “balance” Casey struck by using the undue-burden test as it was described and applied in Casey, while resisting Justice Ginsburg’s calls to revive “close scrutiny” of all abortion laws.

Until now. I will leave speculations about Justice Kennedy’s motivation to others, but by joining Justice Breyer’s majority opinion Kennedy has undone the balance he helped strike in Casey, and acquiesced in a much stricter version of the undue-burden test. For reasons I’ll explain, all may not be lost. But first, let’s look at how Justice Breyer’s opinion transforms the undue-burden test.

Throughout the Whole Women’s Health litigation, the clinics argued (with some support in lower-court decisions) that the undue-burden test entails balancing the challenged regulation’s benefits against its burdens on women’s access. Justice Breyer tends to favor balancing tests (see, e.g., his dissenting opinion in Heller), so it was no surprise that he squarely embraced this interpretation. What’s surprising is that his opinion makes no attempt to provide a normative justification for that choice. Instead, Breyer relies exclusively on precedent: “The rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The support for that claim is astonishingly weak: it consists of page-cites to two passages from Casey purportedly “performing this balancing” with respect to Pennsylvania’s spousal-notification and parental-notification provisions. As Justice Thomas explains in his separate dissent, the passages Justice Breyer cites do not reveal a Court engaged in balancing benefits and burdens. Casey invalidated the spousal-notification requirement because the Court thought it deterred women who feared for their safety and that of their children “as surely as if the Commonwealth had outlawed abortion in all cases” – in other words, because of its severe impact on those women’s access to abortion. And Casey upheld the parental-notification requirement on the strength of controlling pre-Casey precedents.

In fairness, it should be said that Casey contains no explicit declaration that the undue-burden test focuses solely on a regulation’s impact on access to abortion, to the exclusion of attempts to weigh its benefits and burdens. I co-authored an amicus brief in Whole Women’s Health arguing (as summarized above) that a careful reading of Casey shows that the Court employed the “impact” approach, not the “balancing” one. See Brief of Amici Curiae CatholicVote.org Legal Defense Fund et al. in No. 15-274 (available on Scotusblog). Interested readers may wish to consult that brief for a fuller presentation of the evidence that Casey implicitly rejects the “balancing” approach Justice Breyer claims it adopted. Yet even if that evidence is as convincing as I find it to be, it consists largely of inferences from what the Casey joint opinion did to how its authors must have intended the undue-burden test to operate. Blame Casey, then, for failing to provide basic guidance about the undue-burden test -- but blame Justice Breyer and his colleagues in the majority for mischaracterizing how Casey applied it.

Still, precedent aside, what’s wrong with the “balancing” interpretation of the undue-burden test? First, balancing gives much more leeway to federal trial judges to strike down abortion regulations they think unwise. Experience suggests that the federal bench, drawn as it is from the generally pro-choice elite bar, will often view abortion regulations with skepticism or even hostility. As a result, the balance Casey struck will erode under an accumulation of unfavorable lower-court decisions.

Second, even if balancing produces sensible results in easy cases, it will be largely arbitrary in closer ones. If one accepts the majority’s reading of the record, H.B. 2’s admitting-privileges and surgical-center requirements produce vanishingly little in maternal-health benefits, while forcing many if not most Texas abortion clinics to close, thereby sharply curtailing access to abortion throughout the state. The disproportion between benefits and burdens makes resort to balancing seem appealing and innocuous. But suppose we read the record differently, at least for the surgical-center requirement: its higher safety standards will confer significant health benefits on some women, and many abortion providers will quickly figure out ways to minimize their compliance costs – for example, by combining their practices or by arranging to use the facilities of existing surgical centers that currently do not perform abortions. Given significant benefits and significant but not prohibitive burdens, how is a judge to decide which is weightier?

Third, and most importantly, the benefits and burdens of a regulation will often be incommensurable – particularly when its objective is to persuade women to forego abortions (a goal Casey explicitly treats as legitimate and important). It is one thing for a court to conclude that a regulation’s maternal-health benefits to women who have abortions are too small to justify the burdens imposed on women seeking abortions. That is much like determining whether the regulation makes women who have abortions better off on average – a manageable inquiry, at least in principle. But now consider an informed-consent provision such as the one upheld in Casey, which required women to wait 24 hours after being informed about the nature of abortion and the characteristics and gestational age of the fetus. How is a court to decide whether this regulation will persuade enough women to forgo abortions so that its “benefits” to fetuses outweigh the direct and indirect burdens of the mandatory delay on women seeking abortions? Even if one could construct a reliable estimate of the frequencies with which the regulation would induce women to change their minds or (alternatively) unwillingly to abandon the abortion they sought, how is a court to weigh “fetal lives saved” against “women deterred from obtaining an abortion”? I fear that the Court will eventually answer this question in the same way its pre-Casey decisions would have: by assuming that the life of a pre-viable fetus is drastically less valuable than the well-being of its biological mother, and therefore concluding that the law is invalid even if saves many fetuses and deters very few women.

On the other hand – and this is the only glimmer of hope I see in the Whole Women’s Health debacle – Justice Kennedy’s prior opinions (including Casey, which he co-authored) strongly suggest that he believes fetal life is immensely valuable, so valuable that he would have refused to recognize the right to elective abortion were it not for the force of stare decisis. When undue-burden balancing is applied to the benefits and burdens of a regulation that aim to persuade women to forego abortions, Justice Kennedy may insist that Casey requires giving great weight to the benefit of enabling a fetus to become a child. Justice Thomas points out that the majority opinion omits any mention of the state’s substantial interest in preserving fetal life. In my view, that omission confirms that there is still a gulf between Justice Kennedy and the four un-ambivalent defenders of abortion rights he joined in striking down H.B. 2.

Unfortunately, for this glimmer of hope to lead anywhere, something more is required. Justice Scalia’s successor, whose identity we do not yet know, must supply the fifth vote necessary to preserve some semblance of Casey’s “balance” when it comes to laws that seek to protect fetuses from abortion by persuading their mothers to give them life. Winning that confirmation battle will not be easy.