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.