By Linda Greenhouse – The New York Times.
SOMEONE landing from Mars on Monday and coming upon Justice Stephen G. Breyer’s majority Supreme Court opinion in the Texas abortion case would have had no hint of the decades-long battle over women’s right to abortion and the dogged efforts by states to put obstacles in their way.
There is no poetry in the 40-page opinion, which strikes down a Texas law that would have closed most abortion clinics in the state in the name of protecting women’s health. The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.
There was no mystery in what the five justices in the majority, crucially including Justice Kennedy, accomplished this time, nor in the decision’s impact. By holding the state’s asserted rationale for its clinic-decimating regulations up to the light and finding it specious and counterproductive, the court has shut down one of abortion opponents’ main recent strategies: enacting “targeted regulation of abortion providers” laws that impose on doctors who perform abortions special restrictions not placed on doctors who do procedures of equal or greater risk.
“Specious” is my word, not the court’s. Justice Breyer was careful not to call out the Texas Legislature for placing a health-related veneer on laws whose true intent is to make access to abortion more difficult. Judges are extremely reluctant to accuse legislatures of acting in bad faith, and Justice Breyer didn’t have to do that. He simply had to show, carefully and methodically, the “virtual absence of any health benefit” from requiring doctors who provide abortions to obtain admitting privileges at local hospitals or requiring abortion clinics to retrofit themselves as mini-hospitals at huge cost.
Why does the absence of a health benefit matter? Because, as suggested in Casey and made explicit here, a court confronting a state-devised obstacle to abortion has to balance the burden the law imposes against the benefit it provides. Not the benefit the state claims for it — we’re only trying to protect women’s health, the Texas governor, Greg Abbott, and attorney general, Ken Paxton, avowed lamely on Monday — but the benefit the law actually conveys. In the decision, Whole Woman’s Health v. Hellerstedt, evidence-based medicine meets evidence-based law.
The logic of the opinion is so clear as to seem self-evident; indeed, two of the three dissenters, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., didn’t even try to confront it, arguing instead and at length that the clinics’ appeal was flawed for procedural reasons. The Casey decision established the “undue burden” standard for judging abortion laws, and the word “undue” itself implies a comparison: undue as compared to what? The answer: An undue burden is one that outweighs a benefit.
But the almost laughably conservative United States Court of Appeals for the Fifth Circuit didn’t understand it that way in the decision that the Supreme Court overturned Monday. That court rebuked the district court judge, Lee Yeakel of Austin, Tex., an appointee of President George W. Bush, for having the nerve to insist on evidence for the state’s health-related claims. “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” Judge Jennifer Walker Elrod wrote for the court. In an earlier phase of the case, another Fifth Circuit judge, Edith Jones, declared that the court would defer to the Legislature even if the law was based on “rational speculation unsupported by evidence or empirical data.”
Those days are now over. The provisions of the Texas law, Justice Breyer concluded, “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”
Although nearly one-third of American women will have an abortion in their lifetime, a goal of abortion opponents has been to carve out abortion practice from ordinary health care, to ghettoize and delegitimize it. Those days are now over, too. Singling out abortion for regulation that can’t be justified on medical grounds is unacceptable, as Justice Ruth Bader Ginsburg emphasized in a concurring opinion.
When I first read Justice Breyer’s opinion, my sense of relief struggled against a feeling that something nonetheless was missing: not necessarily the aspirational rhetoric of the Casey decision but some explicit acknowledgment of what it means to women’s equality and dignity not to be trapped in an unwanted pregnancy.
Then I realized that while the court in Casey called upon “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” it didn’t really work out. Maybe, after all, this is not a moment for poetry, but for facts. There’s not much in Justice Breyer’s opinion that’s quotable. But there’s not much that’s debatable either, and that’s what matters.