Ethics & Public Policy Center

Is Hellerstedt this Generation’s Roe?

Published in SCOTUSblog on June 28, 2016



The following is EPPC Visiting Fellow Erika Bachiochi’s contribution to a symposium hosted by SCOTUSblog regarding the Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt.


There is no question that the Supreme Court’s decision yesterday in Whole Woman’s Health v. Hellerstedt is a win for abortion clinics and their doctors. Whether the decision is a victory for women and for liberty, we ought not be so sure.

Abortion-rights organizations quickly claimed that the decision was this generation’s Roe v. Wadeand in certain ways, they are right. First, Roe was first and foremost a victory for doctors, whose rights, Justice Harry Blackmun later suggested, were the real objective of his opinion. In this case, abortion doctors and clinics putatively acted on behalf of their patients (as allowed by a procedural exception atop an exception). Yet clinics’ pecuniary interest to avoid additional health-and-safety standards, like that of other businesses that lobby against the same, stands athwart the interest of their patients. So when the clinics win, as they did yesterday, can we be so sure that women facing unexpected pregnancies have won as well?

Second, in yesterday’s decision as in Roe before it, the Court relied on an inadequate and ill-informed basis of facts as foundational to its judgment of law. When working to ascertain whether the purpose or effect of the law was undue, under the standard set out in Planned Parenthood v. Casey, the trial court did not have before it evidence that purported to show that HB 2 had caused clinic closings, nor that the remaining clinics could not meet abortion demand in the state. The district court was asked to make an inference from the clinic closings alone, and it obliged. This is not unlike the inference from inadequate facts that led to the sweeping decision in Roe.

As Clarke Forsythe documents in his momentous book, Abuse of Discretion, on the making of Roe v. Wade, the record at trial was flimsy on the nature and effects of abortion because the primary issue before the court was not the substantive question of the Texas statute’s constitutionality but whether doctors who were charged under state abortion law could take their cases to federal court. When the Supreme Court decided the case, then, it did not have a full trial record before it. The Court instead made false inferences from faulty claims that abortion had not been treated as a crime at common law and that abortion was safer than childbirth, claims that have been thoroughly discredited by both Forsythe and Joseph Dellapenna’s book Dispelling the Myths of Abortion History. Without more in the record in both this case and Roe, how might the court have ascertained whether women – rather than the clinics that purport to serve them – were unduly burdened by the state’s law?

Finally, in both Roe and yesterday’s decision, the Court overlooked longstanding procedural safeguards in its effort to respectively create, and then maintain, the constitutionally illegitimate right to abortion. The classical canon of construction that dictates that constitutional questions ought to be avoided, like other such canons, offers the Court an opportunity to decide important constitutional questions on the set of facts that will ensure the legitimacy and stability of the law. These canons mirror the Constitution’s structure as a whole, protecting the people in our constitutional democracy from the whims and personal preferences of politically unaccountable judges. In Roe, the Court had before it a prior jurisdictional issue that could have dispensed with the case without reaching the merits, allowing the Court to await a future case to judge the constitutionality of abortion restrictions when the substance of the issue could have been duly briefed.

But as Justice Samuel Alito takes pains to argue in his dissent, and Justice Clarence Thomas fiercely emphasizes in his, abortion decisions ream with procedural exceptions, as though the usual canons of construction were reversed. The abortion distortion, as pro-lifers like to call it, is alive and well in yesterday’s decision, in which the majority acts to bend civil procedure against the long-standing doctrines of res judicata and severability, both of which counsel strongly against the majority’s holding. When the highest court in the land relies upon a comment from the Second Restatement of Judgments, rather than its own precedent, you know the Justices are blazing a trail laid especially for abortion. Ironically, if the majority had decided the case on procedural grounds, as it should have, punting the substantive issue into the near future, a Court with a new appointment or two may have used the opportunity to upend the Casey/Gonzales v. Carhart compromise in favor of something more like Roe, or even Justice Ruth Bader Ginsburg’s desired approach: equal protection.

It is, after all, notable that neither Justice Anthony Kennedy nor Ginsburg wrote the opinion for the Court in favor of the clinics and doctors. We have gotten used to Kennedy’s penchant for balancing competing values in cases in which “personal rights” are at stake, and some of us wondered how he might attempt to balance the “dignitarian” claims in this case. Neither was Ginsburg given the go ahead by the other four members of the majority to reassert her view, ever popular among legal academics, that women’s equality was really at stake in the disputed statutes. Indeed, it was astonishing in reading Breyer’s opinion that there was little said about abortion at all. The Court’s opinion reminds us neither of what abortion is nor why it ought to be protected by the Constitution at all, so entrenched perhaps has the putative right become.

It’s important too to note what yesterday’s decision did not say and, in this regard, how it differs substantially from the Court’s opinion in Roe. In the 1973 case, the Court held the abortion right to be fundamental, and thus governed by strict scrutiny; in yesterday’s decision, the majority did not return to Roe’s strict-scrutiny test (nor, importantly, did it categorize abortion as a fundamental right), Thomas’s otherwise appropriate counsel of despair notwithstanding. Rather, on my reading, the Court in yesterday’s decision understood itself to be vigorously applying the “undue burden” test set out in Casey to the disputed regulations. The Court’s opinion would not have seemed so contrived had it not inappropriately hurdled procedural barricades to get there. In neglecting to show the faintest bit of judicial restraint, the Court’s progressives once again threaten the Court’s legitimacy and thereby the decisions it makes on behalf of litigants.

The “undue burden” standard is critiqued by both abortion’s advocates and its opponents, and perhaps in a nation as divided on the issue as ours that’s as it should be. Whereas abortion’s advocates would like to see Roe return in full form, conservatives view the Casey standard as offering inadequate guidance, and far too much authority, to the courts which yesterday’s decision again calls to serve as review boards for abortion legislation. After this case, trial courts will be required to act as mini-legislatures, rehearing the testimony offered to legislatures in order to ascertain – and then attempt to balance – the benefits and burdens of each particular law. This will be an onerous and expensive new regime, and far too malleable to the whims and wishes of whomever happens to be holding the gavel. Balancing may seem the more fair and modest approach, but it is not an act for which courts are designed. It’s the proper role of the legislature, as recognized in Gonzales v. Carhart, the 2007 decision yesterday’s Court mostly ignored in its desire to impose super-legislative tasks on the judiciary.

On the other hand, legislatures that don’t do so already will be required to offer extensive legislative findings, offering a variety of testimony and evidence that will give way to a good deal of public education on the health impact of abortion to women. This has already begun to happen in recent years as legislatures passed women-protective regulations on abortion. In order to ensure the very best data is forthcoming, however, all sides to the debate ought to support mandatory reporting requirements on the part of abortion clinics, and especially emergency rooms that treat women experiencing abortion injury, both of which are subject to only voluntary reporting requirements in most jurisdictions. Further, for the good of both women’s health and medical practice, researchers ought to be encouraged to study abortion’s long-term effects as well short-term complications. While much good medical research already exists, much more ought to be conducted – and the medical reputation of researchers ought not be impugned when they report negative findings, as is often the case today. Indeed, despite Ginsburg’s wishes otherwise, the long-term effects of abortion, as well as data from other countries with mandatory reporting, belie the claim that the procedure is as safe as she suggests.

This case once again proves how very contentious the reputed constitutional right to abortion is in our country. While Alito and especially Thomas write of how the aforementioned abortion distortion appears to take hold of judicial decisions in abortion matters, rendering the pro-Roe Justices unable to apply basic procedural rules, Ginsburg in concurrence writes of an analogous phenomenon abortion advocates claim soil the legislative process: Targeted Regulation of Abortion Providers. The mistrust for opposing sides runs deep, with ill will presumed across the board.

The women of the Court, of academia, and of the media, assume that the Court has championed women in this case. Yet if we are to believe the women who regret their abortions, who outnumber men in their support for restrictions on abortion, and who view abortion as a failure of a nation to come to terms with the distinctive needs of women, we ought not be so sure.

Erika Bachiochi is a Visiting Fellow at the Ethics and Public Policy Center and a Research Fellow at the University of St. Thomas Law School.

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