//  7/5/18  //  In-Depth Analysis

During the election, President Trump promised to nominate justices to the Supreme Court who would overturn Roe v. Wade, the case that held there is a fundamental right to decide to end a pregnancy.*  The Senate Republicans (and three red state Democrats) voted to confirm Judge Gorsuch of the Tenth Circuit Court of Appeals to the Supreme Court after Senate Republicans nuked the filibuster for Supreme Court nominations.  It has been widely predicted that confirming a replacement for Justice Kennedy from the President's short list of potential Supreme Court nominees would lead to the reversal of Roe.  For whatever it is worth, I think that’s right.

But what would it mean to “overturn” Roe?  A decision overturning Roe could come in one of two forms.  One would be for the Court to say that the decision to end a pregnancy is not a fundamental right, and that Roe was wrong to recognize it as one.   But there are other ways to overturn Roe as well.

Diluting The Undue Burden Standard

A modified Court could overturn Roe by purporting to apply the formal legal standard that governs abortion restrictions—the undue burden standard—while emptying that standard of any meaning by upholding every abortion restriction that came before the Court.  Irin Carmon noted this possibility in a great Washington Post piece.

How would that work? The law on fundamental rights works like this:  If a law burdens (more than incidentally) a fundamental right, the law is subject to “strict scrutiny.”  If a law burdens something that isn’t a fundamental right, the law is subject to “rational basis review.”  As any student of constitutional law can tell you, the standard of review matters and in some cases may be outcome determinative.  Strict scrutiny is the most demanding standard: Under strict scrutiny, a law is valid only if it furthers a compelling purpose and is narrowly tailored to further that purpose.  Rational basis review is the least demanding standard: Under rational basis review, a law is valid if a court can dream up a legitimate purpose the law might be thought to serve, and a reasonable legislature might reasonably think that the law furthers that purpose. 

In Planned Parenthood v. Casey, the Court affirmed the “central holding” of Roe—that a woman’s decision to terminate a pregnancy is a “fundamental right.”  But Casey also held that restrictions on abortion are not subject to strict scrutiny.  Rather, Casey said that restrictions on abortion are reviewed under the “undue burden” standard.  What is the undue burden standard?  Well, it’s a less demanding standard than strict scrutiny.  But it’s also a more demanding standard than rational basis review, given that the dissenters in Casey would have applied rational basis review, but the controlling plurality rejected that approach.

The plurality in Casey held that states could not impose an undue burden on the decision to have an abortion.  Casey explained that “undue burdens” include laws that have the “purpose or effect” of imposing a “substantial obstacle” on the decision to end a pregnancy.  Two terms ago in Whole Woman’s Health v. Hellerstedt, the Court again reaffirmed that the “undue burden” standard is more demanding than rational basis review, and requires a state to establish that a law actually furthers its stated purposes.  In other words, it is not enough, as it would be under rational basis review, for reasonable legislators to merely think that the law might further its purpose.

A modified Court could “overturn” Roe by reciting Casey’s “undue burden” standard and purporting to apply that standard, while actually applying something that more closely resembles rational basis review.  How would that “overturn” Roe?  Well, when a court applies rational basis review, the law being challenged will almost always be upheld.  It’s easier to imagine how a law might be thought to further a valid purpose than it is to demonstrate that it actually does so. 

To see that part of the standard of review in action, consider Whole Woman’s Health.  Whole Woman’s Health addressed Texas’s requirement that physicians performing abortions have “admitting privileges” at hospitals within 30 miles of facilities where they perform abortions.  Texas maintained that the requirement furthered women’s health.  At oral argument, Justice Breyer asked the Solicitor General of Texas if there was any evidence that the requirement did so—that is, was there any evidence that a woman had been harmed because her doctor did not personally have admitting privileges at a local hospital?  (Preexisting law required doctors to have transfer agreements with hospitals rather than personal admitting privileges at a hospital.)  The answer, of course, was no.  And because the Court was not applying rational basis review, that meant the state had failed to prove that its requirement actually advanced the purported valid purpose of the law, improving women’s health outcomes.  But if the court had applied rational basis review, that lack of evidence would have been almost irrelevant—states don’t have to put in evidence, under rational basis review, to establish that their laws actually further purportedly valid purposes.

A modified Supreme Court could dilute the undue burden standard into rational basis review another way—namely, by never finding that a law has the “effect” of creating a “substantial obstacle” to a woman’s decision to end her pregnancy.  Again, you don’t have to look any further than Whole Woman’s Health to see how that might work.  In Whole Woman’s Health, the challenged Texas law reduced the number of clinics from 40 to 7, all of which would have been located in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region.  The law would have meant that:

2 million women of reproductive age w[ould] live more than 50 miles from an abortion provider; 1.3 million w[ould] live more than 100 miles from an abortion provider; 900,000 w[ould] live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider.

The 5th Circuit Court of Appeals looked at those numbers and concluded there was no undue burden—that a law with those effects did not have the “effect” of imposing a “substantial obstacle” on women who decide to end a pregnancy.   (With one small exception—the 5th Circuit concluded that the one closure that resulted in a significant number of women living more than 200 miles from an abortion provider was an undue burden, and allowed one doctor to continue seeing patients at one clinic.)  The court of appeals, in other words, concluded that a law does not have the “effect” of imposing a “substantial obstacle” on women seeking abortions so long as most women still live at least 150 miles from an abortion provider. 

That’s ludicrous of course—some states are smaller than 150 square miles, so that standard would have allowed some states to shutter all of the clinics in state.  It also defies common sense to  think that it’s not a “substantial obstacle” to travel several hours each way, several times (to obtain all of the required consultations and information blasts) to obtain a medical procedure.  What about work, leave policy, family obligations, socioeconomic circumstances … the list goes on and on.  Not every employer may have the requisite medical leave; not all employers have the work flexibility to allow for the required leave; not all women have easy access to transportation; etc., etc.

Five Justices in Whole Woman’s Health rejected that understanding of the undue burden standard.  But what if they hadn’t?  It’s not far-fetched to think that a modified Supreme Court would have gone the way of the Fifth Circuit. (Chief Justice Roberts, Justice Alito, and Justice Thomas, after all, would have allowed the Fifth Circuit’s decision to stand).  And if a modified Supreme Court eventually takes that course, states could enact restrictive abortion laws that eliminate any kind of actual access to abortion, at least for women who cannot afford to fly to other countries (or fly several times to a state that would permit abortion). 

Some recent cases other than Whole Woman’s Health illustrate how this might happen.  One was a case that made its way to the Supreme Court at the same time as Whole Woman’s HealthCurrier v. Jackson Woman’s Health Organization involved a restriction that would have shut down the one remaining clinic that performed abortions in Mississippi.  If allowed to stand, that regulation would not criminalize abortion; it would just make it impossible to obtain for women who cannot travel (again, multiple times) out of state in a relatively narrow window.  The other is Planned Parenthood v. Jegley, the case involving an Arkansas restriction that would close 2 of the 3 clinics in the state, and end medication abortion in the state.  But there are myriad recently enacted restrictions on abortion—restrictions that ban the dilation and evacuation procedure (the most common method for performing second trimester abortions); restrictions that require doctors to have admitting privileges at hospitals (much like the state tried to do in Whole Woman’s Health); restrictions that saddle clinics with millions of dollars in new obligations; restrictions that prohibit abortion after 20 weeks, or after a heartbeat is detectable; and so on.  Again, upholding these restrictions would not criminalize abortion—it would just prohibit some women from accessing safe and legal abortion.  And upholding these restrictions wouldn’t require the Court to admit it is (effectively) overturning Roe or Casey.  They could, instead, say whatever they want.  But make no mistake:  Anti-abortion activists understand that upholding these laws is a significant victory, and one that puts the Court on a path toward formally overruling Roe one day.

Diluting a standard of review is not unheard of.  The Justices that uphold affirmative action programs do something similar with strict scrutiny (which is why Justice Breyer once referred to the “version of strict scrutiny” that is applied in the affirmative action cases).  The Justices do the same with rational basis review in some instances where they invalidate laws while purporting to apply rational basis review.  And they could do the same with Roe and Casey

Expanding The Government’s Interest In Not "Facilitating" Abortions

But even diluting the undue burden standard into some version of rational basis review is not the only way a modified Supreme Court could overturn Roe.  Another would be a series of doctrinal manipulations, exemplified by the recent litigation in Garza v. Hargan, about what constitutes facilitation of abortion. 

Regular readers of this blog are probably familiar with the facts of Garza, but for those that are not:  Garza involves the case of some undocumented minor women who are in the custody of a private shelter that contracts with ORR.   Under the laws of the states where they reside, the women are entitled to abortions (given how far along they are in their pregnancy, and some of them obtained the necessary judicial bypasses for parental consent).  ORR’s position includes the claim that it does not have to permit the women to obtain abortions because, by doing so, ORR would be “facilitating” and “complicit” in their abortions.  (ORR is at least arguing that it can delay the women’s abortions until such time as it can release them into the custody of private sponsors, though occasionally it has seemed to argue it has the power to prevent them from having abortions at all.)

The complicity argument has been thoroughly debunked by Marty Lederman and Judge Millett.  Among other things, the complicity arguments ignores the fact that the women will pay for their abortions, and have transportation to them.  All that is required is for ORR to let them walk out the door.  Two weaknesses of the complicity argument suggest how a reconstituted Supreme Court might modify Roe.

The sheer oddity of suggesting that the government is complicit in an abortion by permitting a woman to walk out the door points toward one way in which a modified Supreme Court might weaken Roe.   If the government is facilitating and complicit in an abortion by permitting a woman to walk out the door, why would they not be facilitating and complicit in an abortion by permitting health insurance to cover abortion?  (Some states prohibit insurance from covering abortions.)  Why would the government not be facilitating and complicit in an abortion by allowing women who previously obtained abortions to receive any kind of public assistance, particularly health insurance?  Why would the government not be facilitating and complicit in an abortion by merely allowing it to happen, since permitting a woman to walk out the door apparently amounts of facilitation.   If governments can assert an interest in not being complicit in abortion, and being complicit means potentially anything under the sun, then many restrictions on abortion would be upheld, even without formally overruling Roe and Casey.

The other problem with the complicity argument is something else Marty and Judge Millett observed, which is that the government’s position on women in ORR’s custody made no sense of the government’s position on adult women in the Department of Homeland Security’s custody, or women in the Bureau of Prison’s custody.  At least as of right now, the federal government allows those women in its custody (the custody of DHS or BOP) to obtain abortions; it does not view allowing those women to access abortions they are entitled to under state law as “facilitation.”  What if it changed course? 

***

So how would a modified Supreme Court overturn Roe?  I used to be convinced that it would do so by just draining the undue burden standard of any force and upholding every abortion restriction that came before it.  But overturning Roe by draining the undue burden standard of any force would not satisfy those who firmly believe life begins at conception (and that Roe is therefore a moral monster), or those who believe that Roe is a unique affront to constitutional law and that overturning Roe is the reason d’etre to appoint judges. The opportunity for lawyers who are a part of a movement that has rallied so long for Roe to be overturned feels like something that couldn’t be passed up.

But “informally” overturning Roe has advantages too.  It’s more minimalist, and less headline grabbing. “The Court that overturned Roe” sounds a lot better than “The Court that basically overturned Roe.”  And as the Chief Justice reminded us in his South Dakota v. Wayfair dissent:

This is neither the first, nor the second, but the third time this Court has been asked [to rule on a question]. Whatever salience the adage “third time’s a charm” has in daily life, it is a poor guide to Supreme Court decisionmaking.

It remains to be seen which path would be chosen by a Supreme Court with one more Trump appointment.  Of course, how the Court overturns Roe will not make much of a difference to the women who cannot pay their way around restrictive abortion laws.  But in my view, there’s no question the modified Court will overturn Roe; the only question is how it will do so.  

@LeahLitman 

*Again, same disclaimer as this post—I recognize that Planned Parenthood v. Casey is the operative case here, as I discuss in the post.  But the general public still associates the issue with Roe.


Controlling Our Losses

10/24/18  //  Commentary

While bleak, planning to lose is not about conceding defeat. It’s about laying the groundwork for a brighter future and avoiding precedential barriers to that future.

Danielle D'Onfro

Washington University Law School

Getting To No On Roe: It's Already Started

9/11/18  //  Uncategorized

A recent Eighth Circuit case shows how courts and the newly reconstituted Supreme Court will perform legal gymnastics in order to limit Roe and Casey.

Leah Litman

U.C. Irvine School of Law

Birth Control Is Not Abortion

9/7/18  //  Quick Reactions

By Greg Lipper: At his confirmation hearing, Judge Kavanaugh used the phrase “abortion-inducing drugs" while referring to a case he heard on the DC Circuit. This description of the case is at odds with modern science and suggests his hostility to foundational privacy precedents.

Take Care