Ever since Roe v. Wade in 1973, pro-life politicians at the state and federal level have sought to undermine the abortion right in two main ways. First, by enacting new abortion restrictions and making their voices heard in the judicial selection process, they seek to have Roe overruled or, failing that, substantially weakened. Second, they have enacted laws and policies that do not curtail the right in principle but make it substantially more difficult to exercise. A recent piece by Jeff Toobin in The New Yorker calls attention to both strategies in the context of a case challenging a Texas statute now before the US Court of Appeals for the Fifth Circuit. The law requires that abortions be performed in ambulatory surgical centers.
Toobin is a gifted popularizer but, as I have noted before, his knowledge of constitutional law is not very deep, and this latest piece shows it. He says that Justice O'Connor "almost single-handedly . . . rewrote abortion law," citing the 1992 decision in Planned Parenthood v. Casey. But the lead opinion in that case (a majority on some points, a plurality on others) was highly unusual in that it was jointly authored by Justices O'Connor, Kennedy, and Souter. This is the opposite of acting single-handedly. To be sure, O'Connor's name appears first on the lead opinion, but only because, pursuant to the Court's customs, she was the most senior of the three co-authors, followed by Kennedy, then Souter.
Toobin appears to compound his error in attribution of authorship by also misreading the substance of the Casey opinion in one important way: He says that in Casey the majority adopted O'Connor's position, but in fact, the "undue burden" test the majority announced in Casey differed subtly from the test that Justice O'Connor had been previously championing under the same name. The most important difference is that the Casey joint opinion announced that abortion regulations with the purpose or effect of placing substantial obstacles in the way of a woman seeking an abortion would be invalidated. That purpose prong made the joint opinion undue burden test more rigorous than the version that Justice O'Connor had previously championed.
Perhaps because Toobin does not realize what was distinctive about the Casey test, he treats the phrase "purpose or effect" as a kind of undifferentiated whole. Thus, even though he is critical of post-Casey decisions by the SCOTUS and the lower courts that appear to cut back on the abortion right, he appears to miss what should be obvious: that the debate over just how substantial an obstacle must be before it amounts to an undue burden should be quite unnecessary to decide these cases. Laws like the Texas provisions before the Fifth Circuit--and like the Mississippi one invalidated last month in a ruling discussed by Professor Colb in a Verdict column--are obviously unconstitutional because they have the purpose of making it harder for doctors to provide abortions, and thus for patients to obtain them. The medical safety justifications recited by the legislators who vote to enact these laws and the government lawyers defending them are pretextual. As Professor Colb notes, the Fifth Circuit appears to be simply ignoring the purpose prong of Casey.
Now it might be objected that legislative purpose tests are a bad idea. Both liberal and conservative justices have sometimes made this point in objecting to purpose tests. For example, here is Justice Scalia objecting to a purpose test under the Establishment Clause in his dissent in Edwards v. Aguillard:
[D]iscerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.To which one is tempted to say (after shaking his or head over "mad at his wife"), well, yes, subjective motive inferred from direct evidence of subjective motive will frequently appear indeterminate, but motive can often be inferred from what a law objectively does, as in Aguillard itself. Justice Scalia credulously accepted the Louisiana legislation's assertion of a purpose to promote "academic freedom" in a law that forbade the public school teaching of evolution unless "creation science" was taught alongside it. Because creation science is an oxymoron, it should have been obvious--and in fact was obvious to the majority in Aguillard--that the legislature's actual purpose was to advance a religious view.
Likewise with the hospital admitting privileges requirements and similar recent regulations that specifically target abortion services, but notably do not target other medical procedures that involve equal or greater medical risk. As is so often true in an age when news operations are being slashed, a comedic take gets closest to the truth, in this instance a July story in The Onion titled New Anti-Abortion Legislation Requires Doctors to Scale 18-Foot Wall Surrounding Clinic. Among the made-up quotations attributed to the (actual) governor of Mississippi is this: “Any physicians lacking the necessary upper body strength to pull themselves up and over an 18-foot wall have no business performing such a potentially dangerous procedure.”
So far as I'm concerned, nearly all of the real cases can be decided on a know-it-when-you-see-it basis, but if one wants to be a bit more rigorous about the matter, one can apply some sort of means-ends scrutiny. If there is no good reason to require hospital admitting privileges or an ambulatory surgical center for abortions but not for other procedures with comparable medical risks, then a court should be able to infer that the purpose of such laws is to burden the abortion right and invalidate them under Casey's purpose prong.
If the concern is one of judicial competence, it would appear that judges are sometimes better positioned to determine that a law serves an improper purpose than to determine that its effects exceed some threshold of impermissible harm. To determine the former, they need only examine the face of the law and take evidence on whether the law can reasonably be expected to materially advance permissible purposes (such as health) as opposed to using such permissible purposes pretextually with the goal of restricting abortions. By contrast, cases under the "effects" prong of the Casey undue burden test have often seen courts go down rabbit holes trying to figure out which effects to count and how to measure them.