Benefits, Burdens, and Legislative Purpose in the Louisiana Abortion Case and Beyond

by Michael C. Dorf

In Planned Parenthood v. Casey, the lead opinion of Justices O'Connor, Kennedy, and Souter said that a law imposes an undue (and thus unconstitutional) burden on abortion if the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." In the challenge to the Texas admitting privileges law in Whole Woman's Health (WWH) v. Hellerstedt, some advocates and commentators urged the Court to strike the law down on the ground that the Texas legislature adopted it for the purpose of making it more difficult for women to obtain abortions.

Justice Breyer's majority opinion in WWH repeatedly quoted the "purpose or effect" language, but did not invalidate the admitting-privileges law based on its abortion-restrictive purpose. However, neither did he rely on the law's effects alone. Instead, making sense of the name of the test (undue burden), Justice Breyer refined the Casey test so that it does not look only at burdens but also at benefits. A burden that might be tolerable to advance an important state interest could be deemed substantial and thus undue where the state interest is slight.

To be sure, it would be analytically clearer to say that the substantiality of the obstacles a law imposes is measured independently, the benefits are measured independently, and then the two are weighed against each other. And I read Justice Breyer's opinion as more or less saying that the Casey opinion should be read to mean something like that even though it does not expressly refer to benefits. To my mind, Breyer's understanding is both analytically sounder and more faithful to what the plurality was trying to do in Casey than the Casey formulation itself.

Where any of that will go in June Medical Services v. Russo--the Louisiana abortion case argued last week--is not at all clear. As I noted in my preview of the case, there is a chance that the Court will decide the case by changing the law of third-party standing to disallow doctors and clinics to challenge abortion regulations, even those that target them. Certainly Justice Alito seemed receptive to that line of argument.

But there is also a chance the Court will reach the merits. I am not as much of a legal realist as Prof. Segall, but I am enough of one to think that the Court's merits ruling will have much more to do with the Justices' views about abortion than about how to measure purposes, balancing tests, and the like. However, I also think that the questions raised during the oral argument about those more abstract issues can arise in other, less fraught, contexts, and so I'll say a few words about them.

During the oral argument, both Chief Justice Roberts and Justice Kavanaugh pressed petitioners' attorney Julie Rikelman and Louisiana Solicitor General Elizabeth Murrill about the following questions: (1) Whether all admitting-privileges laws must stand or fall together? And (2) If petitioners are correct that the Louisiana admitting privileges law serves no beneficial purpose, is it automatically unconstitutional, or must one still ask whether the law imposes a substantial burden on access to abortion?

Louisiana argues with respect to question (1) that both a law's benefits and burdens can vary from state to state. Thus, an admitting-privileges law might serve a health-promoting credentialing function in a state in which hospitals give admitting privileges chiefly based on skills relevant to providing abortions. And likewise, Ms. Murril said that the scope of the burden imposed by an admitting-privileges law can vary based on state-specific conditions.

I understood Ms. Rikelman to concede both points in theory but to insist that in fact there's no place in the US where requiring admitting privileges at a hospital within 30 miles of an abortion clinic promotes health. Justices Ginsburg, Sotomayor, and Kagan pretty clearly agreed with that proposition, and Justice Breyer wrote the majority in WWH in a way that makes plain that he too agrees. But that's only four. Where might a fifth vote come from?

That brings us to question (2) posed in combination by the Chief and Justice Kavanaugh: If the admitting privileges law provides no benefit, is it ipso fact unconstitutional, or must one still measure the burden? Or, as Justice Kavanaugh put it: "assume all the doctors who currently perform abortions can obtain admitting privileges, could you say that the law still imposes an undue burden, even if there were no effect?"

How one answers that question might depend on how one conceptualizes the undue burden test.

Under the original Casey formulation, the law in Justice Kavanaugh's hypothetical does not have the effect of imposing a substantial obstacle in the path of a woman seeking an abortion, so it's not unconstitutional on that ground.

Meanwhile, under Justice Breyer's refinement of the test in WWH, the question seems impossible to answer, because it asks for something that's undefined. The ratio of benefit to burden calls for division by zero. And while any positive number divided by zero can be thought of as infinity, in Justice Kavanaugh's hypothetical we have something more like zero divided by zero, which, absent more information about how the ratio of benefits to burdens functions as it approaches zero, is simply undefined. (If that last bit didn't make sense to you because you're not a math nerd, ignore it.)

But wait. If Justice Kavanaugh's idea is that the Casey formulation requires that we first look to burdens, he must take the bitter with the sweet. It's not enough that the law imposes no burden. The law must also lack a purpose of imposing a burden. And one very good way to infer the purpose of the lawmakers is to ask whether the law can plausibly be said to have the benefits they assert for it. A law that does not serve the purpose asserted is likely aimed at serving some other purpose. And here, to state the obvious, the purpose of the Louisiana lawmakers was to make abortions more difficult to obtain because the lawmakers oppose abortion on moral grounds.

Justice Breyer's reformulation of the Casey undue burden test in WWH can thus be seen as generally asking courts to balance benefits and burdens, but in the special case in which there are no benefits, then even if the burdens turn out to be slight, the test can be understood as "smoking out" an illicit purpose, much as heightened scrutiny in the equal protection contexts can be said to smoke out illicit purpose.

One final point bears emphasis. The suggestion by Justice Kavanaugh is purely hypothetical. The record in June Medical contains a great deal of evidence that the Louisiana law in fact imposes a very substantial obstacle on abortion access. It fails any version of the Casey/WWH undue burden test. Or at least it should.