Wednesday, December 01, 2021

The Undue Burden Test Really Is Not Relevant In Dobbs

 by Michael C. Dorf

The oral argument in Dobbs commences in a few hours. Prof Segall and/or I will be back either later today or first thing tomorrow with some instant analysis. Meanwhile, by way of further preview, I want to respond to some scattered pushback against one of the claims I made in my blog post on Monday. There I argued (among other things) that the amicus brief of Senators Hawley, Cruz, and Lee is peculiar in that it is almost entirely directed against the undue burden test adopted by SCOTUS in Planned Parenthood v. Casey, even though the flaw that the Fifth Circuit found in Mississippi's Gestational Age Act is that by outright forbidding most abortions before 15 weeks, the law violates the prohibition on pre-viability bans, and that prohibition was not introduced by the Casey Court as part of the undue burden test; rather, it is the part of Roe v. Wade that the Casey Court reaffirmed. Thus, I said in Monday's blog post that the focus on the undue burden test was essentially a non sequitur.

To be honest, when I wrote Monday's blog post, it didn't even occur to me that anyone might plausibly think that the undue burden test was implicated by the Dobbs case. That's partly because when the Supreme Court granted certiorari, it rejected the question Mississippi tried to pose implicating undue burden. The original petition posed three questions. The Court granted on question 1 -- "Whether all pre-viability prohibitions on elective abortions are unconstitutional" -- but rejected question 2 (about undue burdens) and question 3 (about standing). Even after I noted as much, however, some of my readers insisted that the undue burden test could be relevant.

I want to be clear that I agree with these readers that it is possible that one or more Justices could write or join an opinion, concurrence, or dissent that says something about the undue burden test or even claims to resolve the case under it. What I'm saying is that doing so would not make any sense, unless those who do so frankly acknowledge that they are changing the law.

For the nearly three decades that Casey has been on the books, it has been more or less universally understood to have endorsed the following rules: (1) pre-viability, the state may not forbid abortion; (2) post-viability, the state may forbid abortion, so long as it allows life and health exceptions; (3) at any point in pregnancy, the state may impose regulations that do not amount to prohibitions, but if those regulations govern pre-viability abortions, they may not unduly burden the abortion right. (1) and (2) reaffirmed and did not change what the Casey Court called the essential holding of Roe. (3) is the undue burden test that Casey introduced. Because the Mississippi law runs afoul of (1), it implicates Roe, not Casey's undue burden test.

None of the foregoing strikes me as open to reasonable debate. I'm not here offering an argument against the Court simply overruling Roe (although I and many others have offered such arguments elsewhere). Nor does any of the above offer a reason why the Court couldn't decide to change Casey by now saying that the undue burden test applies to bans as well as regulations or to change it in some other way. All I'm saying is that Casey itself lays all of this out pretty unequivocally. Here is a quotation (from page 879 of the US Report version) from the Casey Court's summary of its holding:

Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

So why might anyone think that the undue burden test is relevant? Without strictly reproducing what my interlocutors have said, I'll offer some thoughts.

(A) I have heard the argument (and you can see a version of this point in the lengthy exchange in the comments on Monday's post) that the Mississippi law doesn't actually burden the right to abortion at all because even before its enactment, abortion after 15 weeks wasn't really available in Mississippi. That's not quite true as a factual matter, but even if it were, so what? Suppose there were a federal constitutional right to ice skate on frozen ponds. Suppose further that Hawaii bans skating on frozen ponds. The fact that it's almost (but not quite) never cold enough for ponds to freeze in Hawaii might mean that no one has standing to challenge the law, but that wouldn't make the law constitutional.

(B) Another argument I've seen parses the language I quoted from Casey three paragraphs up to say that allowing abortion for up to 15 weeks means that abortion isn't banned or "prohibit[ed]" pre-viability; rather, it's allowed--just up to a point. This strikes me as much too clever. Under this logic, viability doesn't amount to any kind of a line of demarcation at all. To be sure, one might offer reasons why 15 weeks (as opposed to 6 weeks or some other much shorter time frame) is enough time for a typical pregnant person to get a pre-viability abortion, but then one is really saying that the constitutional line is (no later than) 15 weeks, not viability. Although I have seen smart people suggest this argument as something one or more Justices might endorse, I have difficulty taking it seriously.

(C) Perhaps the most thoughtful pushback I've received problematizes the distinction between a "prohibition" and a "regulation." If a state has a 24-hour waiting period law and a woman seeks an abortion 23 hours before her fetus is viable, should a court evaluate and uphold it on the authority of the undue burden portion of Casey or should the Court invalidate it under the no-pre-viability-ban portion of Roe that Casey reaffirmed? If a state regulates the hours during which non-emergency abortions, including pre-viability abortions, can be performed (perhaps to allow state inspection during regular working hours), should the undue burden test apply? Or should the law be deemed per se impermissible under Roe as a pre-viability ban during the hours in which abortions are forbidden?

Such questions pose potentially interesting puzzles, perhaps, but they seem to me quite irrelevant to Dobbs. We can concede that the distinction between a regulation and a prohibition can be fuzzy at the border--as nearly all distinctions in the law can be--without conceding that the Mississippi law is in the gray area. It falls clearly on the prohibition side of the regulation/prohibition line.

To reiterate, in today's post I have not argued that the Court should not modify Casey and Roe so as to make the undue burden test applicable even to pre-viability prohibitions. Nor would it be entirely unprecedented for the Court to claim fidelity to Casey while modifying its test. After all, that is more or less what Justice Breyer did for a majority in Whole Woman's Health (WWH) v. Hellerstedt. In Casey, the Court defined the undue burden test in a way that took account only of the burden a regulation places on access to pre-viability abortion. In WWH, Justice Breyer said that the test also takes account of the law's benefits.

There is, however, an important difference between what Justice Breyer said in WWH and what the Court would have to say in Dobbs to uphold the Mississippi law as not unduly burdensome. By announcing an undue burden test, the Casey Court pretty clearly implied that benefits as well as costs are relevant. A burden that might be undue for slight or nonexistent benefits could be acceptable where it produces substantial benefits. And in other contexts in which an undue burden test applies--such as in the evaluation of non-discriminatory burdens on interstate commerce--the undue burden test balances costs and benefits. Thus, although the official formulation in Casey did not refer to benefits (as the WWH dissenters noted), Justice Breyer's majority opinion in WWH can plausibly be understood as clarifying or modestly correcting that official formulation. WWH was wholly consistent with the spirit of Casey.

By contrast, it would not be consistent with the letter or spirit of Casey for the Court  to say in Dobbs that Casey all along really required that the Mississippi law should be judged under the undue burden test and it's not an undue burden, or that Casey requires that the Mississippi law be judged under the undue burden test but the undue burden portion of Casey should be overruled and rational basis scrutiny should be invoked to uphold the Mississippi law.

Ultimately, of course, what really matters are the actual result and rule that emerge from Dobbs. Because I am pessimistic about that bottom line, I'm left hoping that at least the Justices who overrule Roe and Casey will be honest about what they're doing. Experience has taught, however, that no matter how low I set my expectations, I often end up disappointed.


Aytan Y. Bellin said...

Professor Dorf:

I have been an attorney for over 30 years and really enjoy reading this blog. My general question is why we, as practicing attorneys and law professors, continue to pretend that the Supreme Court's decisions on hot-button issues like abortion are anything other than exercises in raw power. The legal arguments you and your colleagues raise on this blog are fascinating, and if we did not have an ideologically-driven court, would probably really affect the outcome of Supreme Court cases. But, at the end of the day, if five or more Justices overturn Roe, Chevron, or any number of other cases it is not going to be because some clever legal argument or analysis is going to convince them. Rather, the Justices will engage in back and fill, i.e, they will have a pre-determined result and then utilize "legal reasoning" as window dressing. At the beginning of my career, I was not this cynical, but having practiced before trial and appellate courts for over three decades, I have sadly come to this conclusion. Shouldn't we be more honest with our colleagues, the public, law students, and ourselves? I know that this question is not easily answerable, but I am interested in your and your colleague's thoughts given the amount of time each of you spends on these analyses.

Joe said...

Question: You write in the final chapter that the justices all share “the pretense that law is all that matters…that the departure of one justice and the arrival of another are extraneous to the action on the stage.” Are you trying with your account to show that that pretense is simply false?

Answer: I’m suggesting that it’s a pretense we are generally content to live with — until reality hits us in the eyes, as it did in the 2020 term.

Anyway, thanks for the replies. The voting/abortion discussion to me in particularly was rather coy on some level & I note it wasn't really addressed here. Not complaining.

former student said...

I don't think what Aytan suggests is happening is "cynical." In fact, frankly overruling Roe v. Wade because it is deeply unpopular with a large segment of voters is exactly what motivated those voters to the polls. Those voters will feel betrayed if, after a generation of effort to transform the Court, culminating in a SC with a majority of carefully curated supposedly anti-abortion justices, they DO NOT get the political result that they strove for through the ordinary political means of electing presidents and senators who promised to appoint such judges. That would be the constitutional crisis, because it would signal that the professional class is so universally aligned against the masses that the masses cannot even hand-select five professionals to fulfill their wishes -- even when reaching, for once, outside of the Harvard-Yale ruling class inner circle with Amy Barrett.

As to your general point, I agree very much that, on any open question, a judge's inclinations and leanings are all that matters, and the arguments of counsel tend to be completely irrelevant. I think only good lawyers really understand this. Bad lawyers in my field (plaintiffs' law) will lose a Daubert motion before a federal judge and start questioning their expert's rigor or testimony or the quality of the legal argument advanced (by someone else, a designated brief writer) in response to the motion, rather than recognizing that the flaw was filing in that forum. In other words, bad lawyers sometimes treat the judge's reasons as actual reasons, rather than justifications for a mostly ends-driven process (which, in federal courts, is to protect corporations, except when passing through the gate to a federal MDL, in which the end is to drive settlements and a resolution that works for the plaintiffs' lawyers as well as defense lawyers). Good lawyers understand that choice of forum and judge are by far the most important choices lawyers make.

If you want to get into the really cynical aspects of the inner workings of the judicial process, we should also note that sometimes judges ignore, rather than address, the best arguments and facts advanced in the brief and exhibits of the party they rule against, so that people reading a judicial opinion aren't even aware of the case that was made against that finding. Are law professors even aware that this happens? I doubt it.

former student said...

Another way of saying that is that ruling class obfuscation, through judicial writing and reasoning, actually plays a very cynical anti-democratic role. There is a real risk that, despite being sent to the Supreme Court to overturn Roe v. Wade, one of Kavanaugh or Barrett will feel more loyalty to his or her social and professional class than to the voters who made their appointments happen.

former student said...

Of course, the flip side is that the donor class very cynically uses these hot-button issues to ensure that the voting public remains focused on the cultural leanings of a nominee to the federal judiciary, and so the federal judiciary as a whole is completely beholden to the donor class on all other matters. Given the current alignment of voters, the anti-working class leanings of the judiciary is mostly the fault of Bush Republicans and Mitch McConnell types, with their awful economic agenda.

Asher Steinberg said...

I think we probably agree about current doctrine, or at least the best reading of dicta in Casey that, as the Chief Justice said today, don't seem to have had much to do with the laws the Casey Court actually reviewed or why it decided what it did about them. (We might disagree about whether those statements are dicta, but even under the approach of your very good article on dicta, I'd say they are.) And I agree that Mississippi's law is a prohibition of abortion during some period. I just don't see what sense it makes to treat a prohibition of abortion during some calendar period as per se invalid, but review regulations that make it as hard or harder to get an abortion as some prohibitions under a more relaxed standard, and to in fact uphold regulations that make it more difficult to get an abortion than this prohibition does (for example, I think a generally applicable 24-hour waiting period, besides cutting the number of days on which a woman can get an abortion in half, imposes greater burdens in the way of overnight stays in the locales of faraway clinics, or multiple trips, than a prohibition from getting an abortion during a period of gestation where very few abortions are performed). This isn't how we deal with the pretty similarly conceptualized right to vote; we ask whether a state's laws have made it difficult to exercise the right to vote at some point in time during the election, we don't say "because voting is flatly banned from 8 p.m. to 12, or up until two weeks before Election Day, that's a per se invalid prohibition of voting, and it doesn't matter how generous the period that's left to vote is." That would of course be absurd, and I don't quite see why it isn't just as absurd here, outside the context of as-applied claims brought by women/their doctors where there is some exigency that made getting an abortion before the period where the prohibition kicks in impracticable.

Aytan Y. Bellin said...

I agree with former student when he says:
"If you want to get into the really cynical aspects of the inner workings of the judicial process, we should also note that sometimes judges ignore, rather than address, the best arguments and facts advanced in the brief and exhibits of the party they rule against, so that people reading a judicial opinion aren't even aware of the case that was made against that finding."
This observatoin i absolutely true and my clients have been both victims and beneficiaries of this as well. Of course, the courts are being completely dishonest when they do this. It is terribel for the clients, the development of the law and also really annoying to us advicates who wrok hard on our arguments.

Aytan Y. Bellin said...

Sorry for the spelling mistakes. I was typing quickly on a laptop.