an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Whole Woman’s Health and the Future of Abortion Regulation
Whole Woman’s Health v. Hellerstedt (WWH) is the most important abortion case since Casey in 1992, and a major setback for the anti-choice movement.By allowing courts to weigh the importance of the health benefits of a regulation, it will most likely invalidate most TRAP laws, which usually only marginally advance health while making it more difficult for women to access abortion.WWH, however, will not stop the anti-choice movement from pressing its fight against abortion.It now controls many state legislatures, and more legislation in areas left open by WWH may be expected.
Future health-related regulations will have to hew to the WWH line of providing real benefit, at least if they substantially limit access to abortion.But close questions may still arise.What if a state has a valid health justification for a regulation that does limit access to abortion, as Jonathan Will notes would occur if a state law that directly promotes women’s health leads to that one clinic closing, as might occur in a state like Mississippi?Here there would be a substantial burden on access, but given the health benefit of the law, which interest should take priority?Neither Casey nor WWH are clear on this point.In my view the question will turn on how great is the health benefit from the requirement.A state, for example, should be able to close the only clinic in the state if it was as derelict as the Gosnell clinic.In that case, however, one could show serious danger to women’s health and life that would be comparable or even greater than the risk of childbirth.If the health benefit is less but still substantial, the question is harder.Such a situation would call into question whether the state itself must allow even a sub-standard abortion facility even when acceptable facilities exist across a state line.See Jackson Women’s Health v. Currier
WWH’s emphasis on real medical benefit may also lead to challenges to licensing laws that require that only physicians perform abortions.Although Mazurek v Armstrong upheld a Montana ban on a physician assistant doing abortions even though there was no question that she was qualified, such bans might have to be rethought if sufficient physicians are not available to meet abortion needs.Similarly, restrictions on use of telemedicine for prescribing abortion drugs to women in rural areas, which some states allow but others do not, may also be subjected to scrutiny in light of WWH.If the ban puts a substantial obstacle in the way of access, but has little health justification given what nurse practitioners and PAs can now do, bans on such use of personnel may be found to be an undue burden.
WWH dealt with health restrictions, but not informed consent and waiting periods.Casey was very lenient to states that wanted to impose a waiting period, and has been used as authority for three day waiting periods.With a renewed look and reliance on data on the impact on women, will the Court be more accepting of claims that such waiting periods do not constitute a substantial obstacle for women, especially those in rural areas with long driving distances, overnight stays, low income, etc.?In those circumstances women might argue that less restrictive means, such as informed consent by Skype or other means, should be as effective in informing women as face-to-face meeting with the provider.
A main strategy of abortion opponents is likely be to focus less on women’s health and more on the dignity of fetuses and human life.The most significant effort here, already adopted in 15 states, is the movement toward a 20 week ban on abortion based on claims of fetal pain.At present 20 weeks is 2-4 weeks prior to most medical assessments about viability (the ability to survive outside of the womb).A 20 week ban would thus be acceptable only if viability were no longer the cut-off line for abortion—a decision that only the Supreme Court could make.If it did change that line, it would have to be on some basis other than viability.Proponents of 20 week bans argue that ability to feel pain—an indication of the humanity of the fetus—should suffice.Yet most scientists and physicians believe that pain sensitivity arises only at or after viability, when cortical networks and neural receptors are fully developed.See Robertson, Science Disputes in Abortion Law
States that have concluded otherwise have relied on the opinion of a small minority of neuroscientists and doctors, akin to giving credence to a few scientists who question climate change science.The language in Gonzales that purports to limit judicial review of contested scientific findings would allow legislative-backed minorities to carry the day on fetal pain.However, if courts are to make their own independent assessment of medical and scientific controversy, as WWH teaches, courts could then find no scientific basis for such a new line, and a significant impact on women needing abortion at 20 weeks.If the Court reinstated judicial deference here and thus allowed sentience not viability to define the cut-off point, such abortions might still occur if the fetus was killed in utero prior to termination, as the Gonzales court recognized.
A second post-WWH approach now touted by abortion opponents is to ban dilation and evacuation abortions that lead to the dismemberment and piecemeal removal of fetal parts on the ground that this procedure is an affront to human dignity.This strategy appears based on the concerns that Justice Kennedy’s Gonzales opinion cited in upholding the federal partial-birth abortion law. However, in that case crushing the skull of the fetus occurred after partial removal from the uterus, thus blurring the line between abortion and birth.The proposed laws, however, ban in utero procedures on fetuses that are not yet in the birth canal, thus avoiding the blurring that concerned Justice Kennedy.Moreover, such laws would render illegal the most common method of second-trimester abortion, thus imposing a substantial obstacle to abortion access.Presumably the proponents of such laws would allow termination of pregnancy only by prostaglandin-induction of a very early preterm birth, which might lengthen the abortion process and thus deter some women from choosing it.It is questionable how great the gain in human dignity is if the terminated fetus will emerge stillborn or die very shortly thereafter. Indeed, the concerns might also be minimized by in utero killing of the second trimester fetus prior to separation, as in Gonzales.
Another strategy for demonstrating respect for fetuses is to require that they be cremated or buried after abortion, not merely flushed or incinerated as other medical waste.Texas’s Health and Human Services Commission has now issued such a regulation to “affirm the value and dignity of all life.” Such laws will increase somewhat the cost of the abortion, but may not so increase cost as to create an undue burden on women.If they did, they could be struck down on the ground that legislature to signify the importance of fetal life cannot survive if it creates a substantial obstacle to access.
In sum, WWH has drastically reoriented the terms of the abortion debate and has shrunk the field of play for opponents.That field, however, is still significant, and as with all abortion questions, deeply entangled with moral, ethical, medical, and social factors.A future Court different in make-up may change the terms of the abortion debate, but the parameters of litigation post-WWH should remain for some time.
John A. Robertson is the Vinson & Elkins Chair at the University of Texas School of Law. You can reach him by e-mail at JRobertson@law.utexas.edu