How the 'Fundamental Right' to Abortion Faded Away

Under the standard set by Roe v. Wade, there would be no question that a controversial Texas abortion law was invalid. What happened?

So far this term, the Supreme Court drama is offstage. Publicly, the justices doze through a seminar on whether mall-kiosk tooth whitening is unlicensed dentistry. Behind the scenes, however, they have issued cryptic orders that have all but settled same-sex marriage, placed some voter-ID laws on hold, and (as of Tuesday) blocked enforcement of a Texas statute that was about to force closure of 13 of the state’s 21 abortion clinics.

A district judge had blocked the Texas statute, but the Fifth Circuit—probably the most conservative appeals court in the country—reversed. Now the Supreme Court has “stayed” the appeals court’s order, meaning the clinics can remain open. It seems likely that stay will be in effect until the justices decide whether to hear an appeal from the Fifth Circuit’s order. But as we have learned with the same-sex-marriage cases this fall, a Supreme Court stay does not mean the Court will definitely hear the appeal. And even if it does, a new case in front of this Court might not clear things up much.

Forty-one years after the Supreme Court held that women have the right to choose between childbirth and abortion, little remains of what was once a “fundamental right.” How did we get here?

To understand the current case, readers have to grasp the constitutional concept of “levels of scrutiny.” It’s not as bad as it sounds. My former constitutional-law professor, Walter Dellinger, summarized it this way: “If government wants to do something to you, it has to give a reason. If it wants to do something really bad, it has to give a really good reason.”

“Scrutiny” refers to how good a reason a court must demand. The lowest “level of scrutiny” is called “rational basis,” which just means that someone who’s not insane might think the law is a good idea. Strict regulation of food trucks, for example, might protect public health; it also might reduce competition. The legislature gets to decide which approach to take without a lot of second-guessing by courts.

“Fundamental rights,” on the other hand, are subject to “strict scrutiny”—laws can’t abridge them without “a really good reason.” Roe v. Wade in 1973 held that the right to choose abortion (before the third trimester of pregnancy) was “fundamental.” Restrictions on it were justified, if at all, only by a “compelling governmental interest” (the classic “really good reason”)—and by proof that the restriction really will achieve that interest. That test is hard to pass. For two decades, most restrictions failed it.

In 1992, however, a three-justice plurality on the Court announced it was reaffirming “the essential holding” of Roe. But that case, Planned Parenthood of S.E. Pennsylvania v. Casey, didn’t really reaffirm Roe; it created a brand-new “level of scrutiny” that’s still confusing courts today.

The joint opinion by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter made clear that government is free to express “profound respect for the life of the unborn” at any stage of pregnancy. That is, the state can try to “persuade [a pregnant woman] to choose childbirth over abortion” and it can deliberately make it “more difficult or more expensive” to get an abortion—as long as its regulations don’t form a “a substantial obstacle to the woman's exercise of the right to choose.” This is called the “undue burden” standard. It means you can deliberately “burden” the right, as long as you don’t do so “unduly.”

What is an “undue burden”? The three justices in Casey said it was any measure that had “the purpose or effect of placing a substantial obstacle” in the path of a woman seeking abortion. A regulation could prevent some women from getting an abortion at all, and still not be an “undue burden.” The Casey Court approved a 24-hour waiting period, which makes abortion nearly impossible for at least some women in rural areas, and it approved an “informed consent” requirement that had little to do with medical risks and instead involved conveying a great deal of information—like the “gestational age of the fetus” and the availability of child support and adoption—aimed at making childbirth seem like a better option. The only measure the plurality disapproved was a requirement that married women in most cases notify their husbands before getting an abortion. That was an “undue burden,” the plurality said, because it would be a “substantial obstacle” in “a large fraction” of the cases to which it applied.

The undue-burden standard that O’Connor invented was always vague and vaporous at best. “Who's to say what's an undue burden?” Dahlia Lithwick asked in 2003. “Sandy says.” When O’Connor left the Court in 2005, she was replaced by Samuel Alito. The concept of “undue burden” began to shift. A federal ban on a form of abortion (called by its opponents “partial birth”) was not an “undue burden,” the Court now held, even though it made no exception for cases where a doctor found the method necessary to protect a pregnant woman’s health. The measure, Kennedy wrote, wouldn’t prevent anyone from getting an abortion; all it did was require some women to accept some increased risk. The law was justified, he reasoned (based, he admitted, on no data at all) in part because some women would later regret choosing this form of abortion. The state was protecting them from themselves.

Flash forward to 2011, as newly elected Republican legislatures convened in red states. After 40 decades of mobilization by anti-abortion activists, the political climate and much of the federal judiciary had turned toxic for abortion rights. A study by the Guttmacher Institute finds that state legislatures enacted 205 restrictions between 2011 and 2013—more than had been passed nationwide in the 10 previous years. The two at issue in Texas are called “TRAPs” (“targeted regulation of abortion providers”)—supposedly health-related rules that apply only to abortion providers and clinics.

First is an “admitting privileges” requirement—any doctor performing abortions must have a formal seal of approval from a hospital within 30 miles of the clinic—approval which may be withheld for economic or competitive reasons, or simply because the hospital disapproves of abortion. There is no real medical benefit. In the rare case of a complication requiring emergency treatment, local hospitals will treat any patient from a clinic. Second is a requirement that abortion clinics meet the physical standards for “ambulatory surgical centers,” which perform invasive outpatient surgery. Abortion clinics aren’t ASCs, but the legislatures now required them to have the same level of facilities, including things such as the width of hallways. Many existing clinics don’t meet those standards, and would have to close.

So did these laws impose an “undue burden”? No, the Fifth Circuit found, because they wouldn’t stop a “large fraction” of women from getting an abortion.

If the laws went into effect, 90 percent of women would only have to drive 150 miles to get to a clinic—and “an increase of travel of less than 150 miles for some women is not an undue burden,” the Fifth Circuit said. The remaining 10 percent would be out of luck—but 10 percent is not a “large fraction.”

The Casey plurality had said an undue burden was any measure that had “the purpose or effect of placing a substantial obstacle” in a woman’s path. As Cornell Law Professor Sherry Colb has pointed out, “Had the Fifth Circuit ... taken the purpose prong of this test seriously, it would not have had to closely examine the impact of such laws.” The Texas law clearly had the purpose of stopping as many abortions as the legislature thought it could get away with. The emerging rule is: Some bullying, even a lot of bullying, is okay. As long as we pretend there’s a health purpose, as long as some women somewhere can get still abortions, as long as nobody anywhere admits what’s really going on, the “right” has not been violated.

The right to choose, then, isn’t what The New York Times’s Linda Greenhouse calls “a right like any other.” It’s more like a role on a reality-TV show—the chance to stumble through a growing, onerous, and senseless set of demands designed to exhaust and bully any woman who tries to exercise it. It would be nice to imagine that the Supreme Court might set this topsy-turvy doctrine straight. But looking at the five members of this Court’s majority—the five who voted in Hobby Lobby to ignore female employees’ reproductive-health needs—I remember some words of Justice Harry Blackmun as he watched the tide on the Court turn against abortion rights in 1989. "The signs are evident and ominous,” he wrote, “and a chill wind blows."