Unfinished business.

Photographer: MANDEL NGAN/AFP/Getty Images

Justices Haven't Ended Abortion Restrictions Yet

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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Last week’s landmark Supreme Court decision striking down Texas anti-abortion laws has emboldened abortion-rights activists, who now hope to lay waste to abortion restrictions all over the U.S. Their success or failure will depend on whether the Supreme Court proves willing to overhaul its abortion jurisprudence. And that's no sure thing.

To understand the developing legal war, you have to distinguish between different kinds of abortion restrictions. Some state laws resemble those struck down in Texas in their focus on regulating abortion providers. Others are broader limitations on a woman’s decision-making autonomy, or the treatment of fetal tissue after abortion.

QuickTake U.S. Abortion Rights Fight

The first set of laws will now have to pass the Supreme Court’s new cost-benefit test, making them vulnerable to challenge. But the broader laws do not fit into that framework as neatly, and will probably require the Supreme Court to weigh in again.

Get used to the name Whole Woman’s Health v. Hellerstedt -- you’re going to be hearing it a lot over the next few years as courts figure out the implications of last week's 5-to-3 decision written by Justice Stephen Breyer. The most important sentence of the opinion, the one that will be the subject of most controversy, interprets the 1992 decision Planned Parenthood v. Casey to “require that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

But that still leaves an all-important question: burdens and benefits of what? In the Hellerstedt case, the Texas laws at issue were versions those known as TRAP laws, an acronym for targeted regulation of abortion providers. The court considered and rejected the health benefits of two sets of such laws. One set, in the court’s description, was aimed at making abortion facilities satisfy the requirements for surgical ambulatory care facilities. The other was aimed at requiring individual abortion providers to have admitting privileges at nearby hospitals.

It’s safe to say that similar laws that exist in other states will be struck down by the lower courts, and that the Supreme Court won’t agree to hear appeals from such decisions.

Five other states have admitting-privileges requirements. Those are going down. Breyer made it clear that admitting privileges aren’t inherently connected to the capacity to treat patients.

More states, as many as 22 according to the Guttmacher Institute, have laws that impose roughly analogous requirements on facilities that perform abortions. Those laws will have to be evaluated individually to see if they provide any benefits.

Breyer’s opinion was a bit more subtle on this issue. It said that requiring surgical care standards provided no benefits at all when abortions were delivered through drugs, since the actual abortion then took place at home. But the opinion entered into more detail in considering the possible benefits of surgical-grade facilities for abortions that took place in clinics. It said most significantly that serious complications arising after abortion require hospitalization, not treatment at a surgical care facility; that argument could be read to strike down all surgical care equivalence laws.

Yet state laws that impose some standards on abortion facilities might be upheld, provided the requirements aren’t as extreme as those imposed by Texas.

So much for laws similar to those the court struck down in Hellerstedt case. But what about other kinds of abortion limits? Do those now have to be subjected to a cost-benefit test? And if so, how?

The Center for Reproductive Rights, which litigated and won the Texas case, has already filed a suit in Louisiana challenging not only laws like those in Texas but also a law that demands a 72-hour waiting period for women seeking abortion and another that requires burial or cremation of aborted fetuses.

A literal reading of the Hellerstedt case, which the pro-choice activists will be certain to urge, might require all laws regulating abortion to be analyzed to see whether they provide benefits to a woman’s health commensurate with their costs in restricting abortion. After all, Hellerstedt was interpreting the phrase “undue burden” in the Casey precedent. And that phrase in turn applied to all abortion regulation.

Yet states defending their laws can be counted on to reply that the cost-benefit analysis only applies to laws targeting providers like the ones the court actually considered in the Hellerstedt case.

The states will claim that it makes little sense to evaluate a waiting period in terms of health benefits. The waiting period has a different purpose: to enable a thoughtful choice about a decision that the state considers morally difficult.

Or if the waiting period is subject to cost-benefit analysis, the states will claim that there is a health benefit for women in avoiding a hasty decision. In the 2007 decision Gonzales v. Carhart, Justice Anthony Kennedy wrote the majority opinion taking seriously the argument that having a partial-birth abortion might have long-term psychological consequences for a woman’s sense of her own dignity. That could be analogized to the benefits of longer decision-making.

Requirements for burial or cremation of fetal tissue have no direct impact on a mother’s health. That fact will encourage states to argue that such laws don’t logically fall into the Hellerstedt cost-benefit framework.

So expect more legal wrangling over what states can do to restrict abortions. And keep your eye on Kennedy. His decision to join Breyer's opinion made him the deciding vote in Hellerstadt, but is no guarantee of a deeper commitment to abortion rights.

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:
Jonathan Landman at jlandman4@bloomberg.net