Whole Woman’s Health in the Supreme Court: When Does Regulation Count as an Undue Burden?

In its first major argument since the untimely death of Justice Antonin Scalia, the newly constituted eight-member Supreme Court in Whole Woman’s Health v. Hellerstedt had a spirited session on whether the twin requirements of Texas Law H.B. 2 constituted an “undue burden” on a women’s constitutional right to have an abortion set out in 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. The first of these requirements was that any physician have admitting privileges at a hospital within 30 miles of where the abortion took place. The second, and more onerous, was that the abortion be performed in an Ambulatory Surgical Center (ASC) that is frequently reserved for procedures more dangerous than an abortion.

In the course of oral argument, there was no question that Justice Scalia’s voice was missed, but by the same token, there was no shortage of comments from the Justices who peppered the lawyers throughout the argument. Eight-member courts can function, at least to this extent. I have already written about the merits of this case, and nothing contained in the oral argument changed my views on the how it should be decided. If one could dial back the clock to 1973, I would never have held that the laws that made abortion illegal in every state of the union were unconstitutional in all of them, on grounds that it were unclear then and are still difficult to articulate today. But for these purposes, that decision is water over the dam, and the only question before the Supreme Court was whether the Texas requirements imposed an undue burden on the right of a woman to obtain that abortion.

Starting from this (dubious) premise, I have no doubt that the challenge to the Texas law should succeed, and my reading of the judicial tea leaves suggests that it will. It is always hard to reach these conclusions because Supreme Court arguments often take strange detours before they get to the core of the case. In this instance, there were two such surprises. The first was whether Whole Woman’s Health was precluded from making its argument on the admitting privilege claim because it had been resolved in a prior litigation. In the end, with the stakes this high, no one seemed to care what the answer was, for what matters is the merits of the case. The second had to do with the nature and quality of the evidence presented on the question of whether the remaining ASCs had sufficient capacity to supply the needed abortion, even if they were located in large urban areas far removed from many women located inside the state.

Here the record was incomplete, but to most of the justices the information that they did have was more than enough to call the law into question. It is also the case that many women entitled to an abortion lived far away from an abortion center. Justice Kagan noted that “that 900,000 women live further than 150 miles from a provider; 750,000, three-quarters of a million, further than 200 miles.” There was also serious question as to whether the law provided any serious health benefits to women in need of abortion. The presentation of Scott Keller for Texas sounded more like an evasion than an argument. There is of course no question that women who get abortions in ASCs are at the margin somewhat better cared for than those who were not — assuming they can get there in the first place.

Yet at some points, Texas’s case just looked odd. Justice Sotomayor was incredulous when Texas sought to defend its proposition that that any woman who took two pills on successive days had to take them in an ASC even if any complications from using this pills would only emerge long after she had gone home. Just what is going on here?

The oral argument at least adds some clarity on a central issue. In general, I favor bright-line rules. A rule that talks about undue burdens invites a balancing test that is anything but. But it is not unique. The same kind of balance has to be necessarily done under the Due Process Clauses of the Fifth and Fourteenth Amendments, which forces judges to figure out what factors go on both sides of some mythical scale. In dealing with these cases, the tradeoffs matter, and so too does any calculation of marginal benefits and marginal costs. In Whole Woman’s Health, the size of the margins matter, and in this instance, it appears that the supposed improvements in women’s safety were trivial at best. Worse still, for the state of Texas, the overall effect of the law could have made abortions less safe for women throughout the state. The liberal justices were right to hammer on the plight of women who might find themselves in worse condition with a self-induced abortion because they could not afford or reach one of clinics still open. With reviewing Roe off the table, the massive inconvenience has to be set off against the dubious health care benefits and the case has to come out only one way: against Texas on the state of the record.

The lesson that these second-best arguments offer for the rule of law should be ignored. Justices do not get to reshuffle the deck with every new case, no matter how high the stakes. They have to reason to conclusions from premises that they do not share. If Casey is the law, the Texas H.R. 2 must fall. It will never do to covertly overturn a constitutional decision by imposing high hurdles on the right to abortion that only abortion opponents think necessary for the women whom they wish to deny the right to abortion. We shall soon know whether this necessary form of second-best argument will be observed in Whole Woman’s Health.

  1. Randy Webster

    Richard Epstein: in need of abortion.

    What does this even mean?

  2. Mark

    Justices do not get to reshuffle the deck with every new case, no matter how high the stakes.

    And this is why, until we have justices willing to overturn precedent when the Constitutional language indicates the earlier decisions were in error, we will be stuck with this mess. We are in a one-way rachet until that happens. The worst that can happen to liberals is they can’t make the next step forward in eviscerating liberties. They are never at risk of losing what they already have.

    The result you predict might be tolerable if the Court had not, in the 1930s, begun, through a process of intellectual corruption, creating a subgroup of “economic” liberties, severing them from other liberties and providing them with virtually no constitutional protections.

  3. Instugator

    Wow – it seems one way to solve this problem is for the SCOTUS to declare Texas too big and order it broken up.

  4. DJ EJ

    Randy Webster:

    Richard Epstein: in need of abortion.

    What does this even mean?

    Needing an abortion implies that something is wrong, that pregnancy is a disease or abnormality requiring a cure. An abortion is not a medical procedure, as the purpose of medicine is to save lives. The purpose of an elective (no medical reason) induced (caused externally) abortion is a dead baby. Performing elective-induced abortions harms both the mother and the unborn child. The child is killed, and the mother is at risk for multiple detrimental physical and mental health effects:

    • 139 statistically significant studies spanning 40 years demonstrate a statistically significantly associated increased risk for preterm birth with elective abortion. One abortion increases a woman’s risk of preterm birth by 30%. Two or more increases a woman’s risk of preterm birth by 50-70%. Two or more abortions also dramatically increases the risk of very preterm birth (1500grams, or less than 28 weeks gestation) by greater than 200%.
    • Abortion of the first pregnancy increases the risk of breast cancer, due to differences between breast tissue created during a first pregnancy before 32 weeks (type 1-2 tissue: high cancer risk) and after 32 weeks (develops into type 3-4 tissue: resistant to cancer). Aborting the fetus before 32 weeks arrests development of tissue in the highly cancer susceptible type 1-2 tissue phase.
    • Having an abortion history greatly increases a woman’s risk for mental health problems including anxiety disorders, substance abuse, and suicidal behaviors.