“Roe v. Wade,” Chief Justice William Rehnquist wrote in 1992, “stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion.”
Rehnquist was dissenting in Planned Parenthood of Southeastern Pennsylvania v. Casey, the landmark case in which the court “reaffirmed” the “essential holding” of Roe. The word “reaffirm,” to a three-judge plurality, meant “completely rewrite.” Casey replaced Roe’s strict protection of choice as a “fundamental right” with a standard that no one can honestly claim to understand.
That vague standard—called the “undue burden” test—will be on the line this term. On Friday, the Court granted cert in a case called Whole Women’s Health v. Cole. The Fifth Circuit upheld a Texas law that would shutter 75 percent of the health facilities providing abortions in the state; the Court will now decide whether that law can stand.
Texas, in 2013, passed (over Wendy Davis’s memorable filibuster) a law called H.B.2. The statute imposed two new requirements on abortion facilities: First, doctors performing abortions must have “admitting privileges” at a hospital within 30 miles of the clinic, and, second, clinics must meet all the requirements for “ambulatory surgical centers” (ASCs). Those standards govern things like the width of hallways and other architectural features. It also can require expensive renovations to comply with, which may in fact be impossible to meet without finding or building a new structure.