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Opinion | How Chief Justice Roberts Solved His Abortion Dilemma

Anti-abortion forces, sorely disappointed at losing what had seemed like a clear shot at ending the right to abortion in its entirety, soon turned to a new strategy. If laws explicitly aimed at preserving unborn life could not actually stop abortions, perhaps laws enacted in the name of protecting women’s health could accomplish that result by limiting the ability of abortion clinics to remain in business. In other words, stop abortion by destroying the abortion infrastructure. The admitting-privileges laws were a prime example of this strategy. Half the abortion clinics in Texas were forced to close before the Supreme Court struck down the state’s law, and many of those clinics have never reopened.

Like fetal-protective laws, the purported health regulations are also subject to the Casey decision’s undue-burden analysis. When a state claims it is acting to protect women’s health, how is a court to tell whether the burden imposed on providers is undue? Casey suggested the beginning of an answer. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the court said then.

How is a court to tell whether a health regulation is unnecessary? An admitting-privilege requirement sounds, without further inquiry, completely unexceptional, well within a state’s authority to regulate the practice of medicine. The Fifth Circuit, in upholding the Texas law, took the state’s explanation at face value, declaring that any judicial inquiry into whether evidence actually supported the need for this or any other health-justified requirement was inappropriate.

Justice Breyer disagreed. In Whole Woman’s Health, his 2016 opinion overturning the Fifth Circuit, he said that when a state offers a health justification for an abortion regulation that limits access, courts must scrutinize with care the evidence underlying the state’s claim, balancing the benefits to be derived from the regulation against the burdens it imposed. In the Texas case, the answer was clear, based on evidence and expert testimony compiled in the District Court: admitting privileges conferred no safety benefit, while the impact on women’s access to abortion was severe. The burden, consequently, was undue.

So, too, in this week’s Louisiana case. Justice Breyer’s 40-page opinion was largely devoted to recounting the evidence that had led Judge John deGravelles of Federal District Court in Baton Rouge to conclude, after a six-day trial, that Louisiana’s law imposed an undue burden. In overturning that District Court decision, the Fifth Circuit ignored much of the evidence and substituted its own view for the rest. But to Justice Breyer, the evidence was “even stronger and more detailed” than in the Texas case. He emphasized both the heavy burden — beginning with the prolonged and fruitless efforts of clinic doctors to obtain admitting privileges from hospitals that clearly would never grant them — and the nonexistent benefit, quoting Judge deGravelles’s finding that there was “no significant health-related problem that the new law helped to cure.” The burden, in Louisiana as in Texas, was undue.

Justice Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Where Chief Justice Roberts parted company with these four was his rejection of the comparative weighing of burdens and benefits that Justice Breyer employed. “Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” he wrote. His tone was scathing: “There is no plausible sense in which anyone, let alone this court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like judging whether a particular line is longer than a particular rock is heavy.”

I’m baffled by this objection. Properly understood, there is nothing “imponderable” about the test Justice Breyer used to evaluate whether a regulation claimed by the state to have the purpose of protecting women’s health actually had anything to do with women’s health. And far from discussing imponderable “values,” Justice Breyer’s opinion was, if anything, nearly value-free. It could more fairly be described as a dry exercise in rationality, approaching the abortion question more as an exercise in administrative law, which he taught for many years at Harvard Law School, than as a question of protecting the dignity and autonomy of women facing the life-altering choice of whether to become mothers.

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