Taking Casey (At Least Half) Seriously

Several states have begun to erect a series of regulations on abortion that would make it essentially impossible for many women within their states to obtain an abortion by making it impossible for clinics to operate. The question now becomes whether the federal courts will prevent states from doing piecemeal what they’re theoretically constitutionally barred from doing explicitly. Yesterday’s district court decision striking down one provision of Texas’s draconian abortion law and narrowing another is not everything supporters of reproductive freedom could hope, but it’s a major step in the right direction if it’s upheld.

The relevant precedent governing abortion laws is the 1992 case Planned Parenthood v. Casey, which upheld Roe v. Wade while narrowing it. Under Casey, states are barred from banning pre-viability abortions. States are permitted to regulate abortion at any state of pregnancy, however, unless the regulation constitutes an “undue burden” on a woman’s right to choose to obtain an abortion. In theory, this standard should at an absolute minimum prevent states from creating a de facto ban on abortion by making it nearly impossible to perform one. As interpreted by the current swing vote on the Court, however, Casey has been rendered nearly toothless. Anthony Kennedy has not found any regulation of abortion unconstitutional since voting to strike down a spousal notification requirement in Casey itself.

If it is upheld, District Court Judge Lee Yeakel’s ruling would put some teeth back into Casey. In the most important part of the decision, Judge Yeakel held that the Texas regulation that requires doctors performing abortions have admitting privileges to a hospital was unconstiutional. Such provisions are particularly dangerous because they can permit anti-abortion hospital administrators to make being a doctor who performs abortions illegal in practice. Judge Yaekel found that Texas’s admitting priveleges requirement was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Yeakel’s demonstration that the requirement is irrational is unanswerable. There is simply no necessity that a doctor performing an abortion have admitting privileges to a hospital. “A lack of admitting privileges on the part of an abortion provider is of no consequence when a patient presents at a hospital emergency room,” she points out, because it would be illegal to deny anyone emergency care. Especially since the provisions are an explicit part of a strategy to create a back door ban on abortion and would drastically limit the number of providers without providing any meaningful protection to a woman’s health, the unconstitutionality of the provision should not even be a close question.

With respect to Texas’s regulation of the use of abortion-inducing drugs, Yaekel is regrettably more charitable to unpersuasive justifications offered by the state. These regulations are important, because states who aim to make it all but impossible for doctors to perform abortions also want to make it impossible for women to obtain abortions on their own. Regulations of the use of prescription abortion drugs are an essential part of the one-two punch designed to ban abortion without being so explicit about it as to clearly violate Casey. Judge Yaekel upheld a provision of the Texas law that would prevent women using a regimen now approved by the American College of Obstetricians and Gynecologists self-administer the drugs at home, although he did hold that Texas cannot apply the provision in cases where a doctor finds than a surgical abortion is a threat to the life or health of the pregnant woman.

As MSNBC’s Irin Carmon observes, what’s curious about this part of Judge Yaekel’s opinion is that it follows a very convincing case that the provision is an undue burden on a woman’s right to choose. The court found that “the FDA protocol” Texas now requires doctors to follow “is assuredly more imposing and unpleasant
for the woman, requiring at least one additional visit to a clinic and allowing less control over the
timing and convenience of the medically induced miscarriage.” When a provision imposes a substantial burden on a woman’s ability to obtain an abortion without advancing any legitimate state interest — and Yaekel concedes that there is no evidence that the off-label protocol presents any significant risk to the health of women — it’s very difficult to conclude that the burden isn’t undue. And yet Yaekel upheld the provision at least in some cases.

Still, the opinion does apply a more serious scrutiny to draconian abortion regulations, one that would reflect the spirit of Roe v. Wade much more than the Supreme Court’s current toothless reading of Casey. The question now is whether Anthony Kennedy will finally start to take one of his most famous opinions seriously as well.