Whole Woman's Health I: Justice Kennedy's Undue Burden Test

“Justice Breyer delivered the opinion of the Court” is the most important, unnecessary and interesting sentence in Whole Woman’s Health v. Hellerstedt (2016).  The sentence is important because even unsophisticated court observers could deduce that the Texas regulations on abortion were going to be declared unconstitutional once they knew that Justice Breyer was writing the majority opinion.  The sentence is unnecessary because almost every paragraph in the majority opinion exhibits Justice Breyer’s Brandeisian obsession with constitutionally significant facts. The sentence is interesting because this is the first major rights case in years in which Justice Anthony Kennedy has not written the majority opinion.

Kennedy’s absence was particularly notable when Breyer declared, “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.”  Justice Kennedy seemingly reached the opposite conclusion in Gonzales v. Carhart (2007) when sustaining a federal ban on partial-birth abortions.  Kennedy's majority opinion in that case insisted on deferring to a legislative judgment that safe alternatives to partial birth abortions existed, even though every reputable medical organization in the United States disputed that claim. One initially wonders whether Kennedy read the majority opinion or was implicitly recanting his Gonzales opinion.  This is an important question because, pending new appointments to the Supreme Court (which may be pending for a long time), Kennedy remains the swing vote on abortion and most other rights issues.

Although this is speculation, some evidence suggests that Kennedy may have a distinctive understanding of “undue burden.”  Breyer and the other liberals take the commonsense position that “undue burden” is two words.  The court must first determine whether an abortion regulation burdens the abortion choice and then whether that burden is undue in light of the benefits of regulation.  The Texas regulations did not come close to meeting this standard for reasons Breyer elaborates.  Chief Justice Roberts, Justice Alito and Justice Thomas focus only on “burden.”  Their opinions focus almost exclusively on how many women were how severely burdened by how Texas regulated abortion to the exclusion of any serious analysis of the evidence that these regulations served no medical purpose.  Readers of their opinions might think those justices would sustain a facial challenge to a regulation requiring woman seeking abortions to first read the entire text of Les Miserables on the ground that a reasonable percentage of women have either read that text or could do so in two-three days of uninterrupted reading.  Justice Kennedy may be the one justice who emphasizes “undue” to the near exclusion of "burden."  His voting pattern suggests that if and only if a state regulation on abortion is advancing a policy he believes is legitimate, Kennedy is likely to sustain the regulation.

Gonzales and Whole Woman’s Health look very different when only “undue” is considered.  Kennedy began his Gonzales opinion with a long graphic description of partial birth abortions.  I suspect the vast majority of persons who read that description would be quite willing to ban partial birth abortions if some alternative existed such that the partial birth abortion ban would not burden women.  At the very least, the opinion clearly demonstrates that Kennedy believes that bans on partial birth abortions serve legitimate public purposes.  By comparison, Texas failed to demonstrate that that state's regulations on abortion clinics served any public purpose.  As Breyer pointed out in his opinion, Texas could not identify one case in which the state regulations on abortion had actually advanced public health.   In short, an admittedly speculative case can be made that, just as “burden” drowns out “undue” for Roberts, Alito, and Thomas, so “undue” drowns out “burden” for Kennedy.  A burden that serves legitimate public purposes is not undue, not matter what the consequences for women.  Similar, a burden that serves no legitimate public purposes is for that reason unconstitutional.  Unlike Justice Oliver Wendell Holmes, Jr.,, who coined the phrase, Justice Kennedy appears willing to declare unconstitutional abortion regulations that are "a fraud on the Constitution."

These reflections suggested a more tempered liberal response to Whole Woman’s Health.  On the one hand, just winning is good and much language in Whole Woman’s Health can be used in the future to support a far more robust “undue burden” test (that may, with a more liberal majority, start to resemble a compelling interest test).  On the other hand, Justice Kennedy may have been happy to assign the opinion to Breyer because Breyer’s fact intensive style was far more suited than Kennedy’s to highlight how the Texas regulation was “a fraud on the Constitution.”  If this speculation is correct, then we can expect that Whole Woman’s Health announces the end of sham regulations on abortion, but the question and Kennedy’s vote remain open when a regulation that severely burdens the abortion choice does have some medical or medical benefits in some cases.