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Why the Texas Abortion Law May Stand

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In the wake of the decision by the U.S. Court of Appeals for the Fifth Circuit upholding a Texas law that would close many of the state’s abortion clinics because they don’t comply with new regulations, you might be thinking that the conservative court’s decision can’t possibly survive Supreme Court review. Think again.

The decision was reached under the legal standard of “undue burden” established in the 1992 Planned Parenthood v. Casey decision. Justices Anthony Kennedy and Sandra Day O’Connor intended the standard to be pragmatic and flexible in evaluating the constitutionality of abortion laws. Now that O’Connor has been replaced by Samuel Alito, and the politics of abortion have continued to change, the content of pragmatism is changing, too. Although it’s unlikely the Roberts court will ever officially overturn Roe v. Wade, in practice the right to an abortion is subject to death by a thousand cuts. It’s therefore far from certain that the Texas law will be struck down if and when it goes to the high court.

To understand the current structure of abortion jurisprudence, you have to time travel back to the early 1990s and the Casey decision. Political opponents of Roe v. Wade, including most prominently Ronald Reagan, had advocated for the court to reverse the decision and declare that there was no fundamental constitutional right to abortion under the due process clause of the Constitution.

In the Casey decision, two Reagan appointees, Kennedy and O’Connor, joined by George H.W. Bush appointee David Souter (who was not yet known to be constitutionally liberal), saved Roe by rewriting it. The joint opinion in Casey emphasized the importance of stare decisis, the doctrine of precedent. In essence, the justices were saying that however unpopular Roe v. Wade might be, it would be bad for liberty and bad for the reputation of the court if it simply overturned the decision.

In place of Roe’s trimester framework for evaluating abortion laws, the Casey opinion substituted the invented doctrine of “undue burden.” The court put it this way:

The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.

On its face, this language invited states to pass laws that were not formally directed at limiting abortion, but that incidentally made abortion harder to come by. At the same time, it deliberately created a sliding scale to decide whether a given restriction on abortion is constitutional. What makes a burden “undue”? Five votes of the Supreme Court, that’s what.

In the 23 years since Casey, the court -- meaning first O’Connor and Kennedy, and now just Kennedy -- has allowed some incidental restrictions while prohibiting others. The Texas law requires not only high levels of compliance with regulations for surgical facilities but also that abortion providers have admitting privileges at neighboring hospitals. These restrictions are carefully chosen so they would appear to have “a valid purpose, one not designed to strike at the right itself.” In other words, the Texas law was intentionally framed to survive undue burden analysis under Casey.

That means the devil lies in the details. Thus, for example, the Fifth Circuit held that the closure of an abortion clinic in El Paso, Texas, didn’t impose an undue burden because women could travel to Santa Teresa, New Mexico, to get abortions there. That led the court into a discussion of an earlier Fifth Circuit case in which it held that it would be an undue burden to close all the abortion clinics in Mississippi, even though in principle women could still travel out of state to get abortions. The court distinguished the two situations by saying that El Paso and Santa Teresa were in the same general metropolitan area. The distinction is, to be sure, vaguely plausible. It’s also completely ad hoc.

But the ad hoc nature of the undue burden analysis created by the Casey decision has been the whole point. The Fifth Circuit said that if eight abortion providers continue to exist in Texas, that’s enough. Why? Because the court said so.

Will Kennedy agree? The thing about a pragmatic, ad hoc, case-by-case jurisprudence is that it’s designed to respond to the justices’ conception of politics. If Kennedy judges that the politics of abortion have moved in the direction of making it harder to get abortions in practice while preserving the right in principle, he might well uphold the Texas law. Chief Justice John Roberts has signaled, in the Affordable Care Act case among others, that he doesn’t want his court to be labeled as activist conservative. But if the headlines won’t read, “Roe v. Wade Overturned,” he will be happy to go along with de facto restrictions on abortion.

The upshot is that the abortion right, to the extent it really exists, is only safe in theory, not in practice. The Casey decision has always been a tool to be used by the court's majority to achieve its preferred outcomes. If Hillary Clinton campaigns for president on the idea of appointing justices who will preserve a woman's right to an abortion, it won’t be political opportunism. It’ll be the truth.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net