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A Cost-Benefit Test Defeats Texas Abortion Restrictions

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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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.

Second, Breyer is the justice most deeply committed to the pragmatic logic of costs and benefits as his core ideological vision. A scholar of regulation and administrative law before becoming a judge, Breyer is part of a generation of thinkers who brought the modern, economically inflected construct of cost-benefit analysis into American legal thought.

With this opinion, that cost-benefit structure becomes part of the jurisprudence of fundamental constitutional rights.

The Casey precedent that created the undue-burden standard was much vaguer. Written by Kennedy, Justice Sandra Day O’Connor and Justice David Souter, before Breyer was on the court, it said that the state has a “legitimate interest” in making sure an abortion “is performed under circumstances that insure maximum safety for the patient.”

The Casey opinion also said that an undue burden could be created by “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle” to abortion.

That left it unclear how a court should determine whether a law aimed at women’s health created an undue burden. Texas seized on the ambiguity to pass the law in question. The state legislature knew a direct ban would be unconstitutional; but it sought to get around that by passing a law that purported to protect women’s health, while in effect making it harder to get an abortion.

Breyer took the opposite tack, interpreting the vague language in Casey to “require[] that courts consider the burdens a law imposes on abortion access together with the benefits.” In doing so, Breyer said, a court should consider any legislative findings made by the state, but should exercise “an independent constitutional duty to review factual findings where constitutional rights are at stake.”

The opinion italicized that sentence, drawn from an earlier abortion opinion by Kennedy, Gonzalez v. Carhart. The italics emphasized how important it was for Breyer to show Kennedy that he himself should be committed to the idea that the court must do its own cost-benefit analysis, not simply rely on what the state legislature asserts.

Breyer examined the Texas law's two requirements: one mandating that physicians performing abortions have admitting privileges at hospitals within 30 miles of the abortion clinic, the other that abortion clinics have all the features of surgical-care centers.

With respect to admitting privileges, Breyer explained that there was no evidence of “a single instance in which the new requirement would have helped even one woman obtain better treatment.” He quoted expert testimony suggesting that complications from abortions requiring immediate hospital admission are exceedingly rare. And he observed that admitting privileges on their own have no rational relationship to the ability to perform medical procedures.

Because the admitting privileges requirement has led to the closure of roughly half of Texas’s abortion clinics, Breyer concluded that the costs exceeded the essentially nonexistent benefits.
QuickTake The Vanishing U.S. Abortion Clinic

Turning to the surgical-center requirements, Breyer argued that these provided no benefits when the abortion was produced by drugs, since the actual abortion almost inevitably takes place after the patient goes home. Justice Sonia Sotomayor had emphasized this point in oral argument.

Breyer added statistics showing how safe abortion is relative to other procedures such as colonoscopies, which may be performed in the doctor’s office. He noted that Texas law lets midwives deliver babies in a mother’s own home. He concluded that the benefits of surgical care were “tangential,” and outweighed by the substantial obstacles the requirement placed on getting an abortion.

Justice Ruth Bader Ginsburg concurred separately to say that “it is beyond rational belief” that the Texas law “could genuinely protect the health of women.” Her point seemed to be that Breyer’s calm, rational cost-benefit approach tended to ignore that the law wasn’t really supposed to protect health at all.

Justice Clarence Thomas in dissent said that the majority opinion “radically rewrites the undue-burden test.” That’s a slight overstatement, but only a slight one. In Breyer’s hands, Casey has become a cost-benefit test, which it wasn't before.

Is that a good thing? Abortion-rights activists will applaud the result in this case. But state legislatures now have a blueprint for trying to limit abortion rights. They will need to produce substantial legislative records that themselves weigh costs and benefits and conclude that their future laws protect women more than they burden abortion.

The real problem in such cases will be one of measurement. When the health benefits are minimal, as they were in the Texas case, it’s easy to conclude that costs to the abortion right outweigh them. But there may be other times when there’s no obvious metric to use in comparing the costs and benefits. We know how to measure health risks. But how do we value a woman’s right to exert control over her own body?

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net