Clarifying and settling the law are among the most important responsibilities of the Supreme Court in the American constitutional system, and something the Court is frequently called on to do. “Ultimately it is this Court’s responsibility to clarify the scope of its own holdings,” as Justice William Brennan said more than a quarter of a century ago.
It is extraordinary, therefore, to see the Court perpetuate and aggravate decades of legal confusion of its own making, as it has done through its decision in Whole Women’s Health v. Hellerstedt(2016). Five Justices in Hellerstedt threw out health and safety regulations for Texas abortion clinics by adopting a new version of the “undue burden” test, by which the Court gave power to judges to decide whether state regulations impose an “undue burden” on a woman’s decision to choose abortion. Sooner or later, this persistently troublesome area of American constitutional law is bound to come back to the Court, and that may happen later this year.
This confusion goes back 45 years, to Roe v. Wade, by which the Court assumed authority to approve or disapprove — directly or through the lower federal courts — every abortion law in the country. In 1983, a decade after Roe, Justice Sandra Day O’Connor criticized the Court for its inconsistent application of Roe in cases over the preceding decade. Nine years later, the Court substantially changed Roe and created the “undue burden” test in Planned Parenthood v. Casey(1992).
The late Justice Antonin Scalia predicted then that the new test would sow confusion, and that’s exactly what happened. How a burden is determined to be “undue” in any case is entirely subjective. An “undue burden” seems to look at the justification for the burden, while a “substantial obstacle” seems to look at only the extent of the burden.
A year after Casey, the Court compounded the problem by adding a “large fraction” factor to the “undue burden” test. For more than two decades, the federal courts struggled to determine what was a “large fraction” of “relevant” cases showing a “substantial obstacle.”
In January, abortion advocates asked the Supreme Court to review a case from Arkansas that tests whether any evidence is needed to claim that a “large fraction” of women seeking abortion face a “substantial obstacle” (Planned Parenthood v. Jegley). The Eighth Circuit Court of Appeals had reversed a lower-court injunction against a state regulation of chemical abortion because the court had “done no math” to demonstrate that a “large fraction” of women would likely be affected. That case has been prematurely appealed, and the justices should not hear it unless and until the factual record has been sufficiently developed.
Last year, in Hellerstedt, the Court once again changed the “undue burden” test, by granting federal judges, for the first time, the power to personally review the “benefits and burdens” of health and safety regulations, imposing a subjective standard that can be heavily influenced by the personal views of the judge. It is a highly speculative endeavor when federal judges review, as they often do, state abortion laws before they have gone into effect.
Using Hellerstedt as a sword, abortion clinics have now reopened attacks against abortion regulations across the country. In courts in Alabama, Arkansas, Hawaii, Indiana, Kentucky, Louisiana, Maine, Missouri, North Carolina, Ohio, Tennessee, and Texas, more than a dozen cases are pending that challenge state abortion regulations — including laws that were upheld by the Supreme Court before Hellerstedt.
The confusion sowed by Hellerstedt isn’t limited to health and safety standards for clinics or to hospital admitting policies after abortion complications, the specific issues involved in the case. Some pending cases seek to extend Hellerstedt to strike down basic medical-licensing and credentialing requirements. In Alabama and Indiana, parental-notice or consent statutes, an issue supposedly settled by prior Supreme Court decisions, have been challenged. Although the Court has twice upheld a physician-only law (that only physicians can do abortions), such laws in Maine and Montana are now facing court challenges. Waiting periods, which the Court previously upheld in Casey, are being challenged in Iowa, Florida, Missouri, and Tennessee.
Hellerstedt has reopened 45 years of abortion law and interpretation. Before Hellerstedt the Court looked at the impact of specific abortion laws. Now Hellerstedt suggests that abortion advocates can, as they are now doing in Louisiana, challenge a number of state laws taken together, for their cumulative impact on abortion “access.”
Five justices in Hellerstedt said there wasn’t “enough” evidence of the need for Texas’s health and safety regulations, though there was significant evidence in the record. Law professor Mary Ziegler, author of After Roe, notes that Hellerstedt “offers little guidance about how much (or how good) the proof must be before lawmakers can regulate.” That is a serious obstacle for legislators and public-health officials.
The ambiguity in Hellerstedt seems intentional. If the Court in June 2016 lacked enough votes to impose a broader injunction against state abortion regulations, the justices could effectively do the same thing by issuing a vague opinion that enabled abortion clinics to reopen challenges to parental laws, informed-consent laws, and waiting periods, knowing that sympathetic federal judges could shut down the laws for years, if not indefinitely.
In the wake of Hellerstedt, Americans United for Life, where I serve as senior counsel, published Unsafe, a 200-page report (backed up by 250 pages of data) documenting that 227 abortion providers in 32 states were cited for more than 1,400 health and safety deficiencies between 2008 and 2016. By ruling as they did in Hellerstedt, the justices left unresolved the problem of substandard conditions and providers in dozens of abortion businesses across the country.
With Hellerstedt, the Court has neither clarified nor settled its abortion doctrine. Confusion prevents state and local officials from effectively doing what the justices have repeatedly said the states have the authority to do: protect the states’ interest in fetal life and maternal health. After 45 years, the Court’s abortion doctrine shows no signs of ever being settled or workable.
This article originally appeared in National Review Online on March 21, 2018.