A Cost-Benefit Test Defeats Texas Abortion Restrictions

Today the Supreme Court upheld the constitutional right to abortion -- and laid down a new framework for how courts should evaluate future legislation limiting it. For the first time, the court expressly held that laws limiting access to abortion must be evaluated on a cost-benefit basis, to see if health benefits to women outweigh the costs in making abortion less available. The cost-benefit scheme gives greater precision to the undue-burden test established in the landmark 1992 case of Casey v. Planned Parenthood. But it also raises the difficult question of how, exactly, costs and benefits should be determined if and when other states pass laws that limit abortion access while purporting to protect women’s health.

The decision went 5-3, with Justice Anthony Kennedy joining the court’s four liberals and the opinion written by Justice Stephen Breyer. That’s significant for two reasons. First, the case would have come out the same way even if Justice Antonin Scalia were still alive or Judge Merrick Garland had been confirmed. Kennedy was the swing vote, and he voted to uphold the legacy of the Casey decision he co-authored.