*This post originally appeared on Balkinization.
"Liberty finds no refuge in a jurisprudence of doubt," the famous first line of the joint opinion in Planned Parenthood v. Casey, sounds more than a little ironic following the Fifth Circuit's latest endorsement of the unrelenting anti-abortion campaigns conducted by the elected leaders of the states within the circuit. Liberty of reproductive choice finds no refuge in the Fifth Circuit.
Unless stayed by the Supreme Court, the recently-decided Whole Women's Health v. Cole will soon close three-quarters of the abortion clinics left in Texas. Where there were 41 clinics less than two years ago, there will soon be as few as eight in a state of 27 million people. The disappearing clinics can't meet the law's requirements that their doctors have admitting privileges at local hospitals or that the clinics be retrofitted as mini hospitals themselves. There is no evidence that either regulation contributes to the health or safety of abortion patients. But the state justified both requirements as serving its interest in protecting women's health, and the Fifth Circuit, invoking Casey and Gonzales v. Carhart, accepted the state's claim at face value.
In a forthcoming article in the Yale Law Journal, we argue that Casey and Carhart require more: that courts must examine how effectively a health-justified regulation actually serves the state’s asserted health interests in order to determine whether the burden it imposes on women’s access to abortion is undue. On this analysis, a roadblock statute of the kind the Fifth Circuit recently upheld is plainly unconstitutional. We demonstrate this, not only through the language of Casey/Carhart, but also through an understanding of the compromise the undue burden framework represents.
Recall that, in neither overturning nor wholly reaffirming Roe v. Wade, Casey authorized government to take steps to protect potential life throughout a woman's pregnancy, but only by means of persuading a woman to forego abortion and become a mother. “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Thus, Casey upheld a 24-hour waiting period and a mandatory counseling requirement, while striking down a law requiring married women to notify their husbands of their intention to terminate a pregnancy. The line Casey drew—allowing the state to persuade a woman to choose childbirth, but forbidding the state to "hinder" her choice of abortion—is one that protects women's dignity, a value as much at the core of the Casey compromise as the protection of prenatal life.
There is now a sharp circuit conflict over Casey's application to laws that through needless and unattainable requirements enacted in the name of women's health are destroying the infrastructure on which women depend for the exercise of their constitutional right to abortion. Casey itself discussed health-justified regulation of abortion, although it didn't deal with "TRAP" laws (for "targeted regulation of abortion providers") that single out abortion for onerous restrictions as current laws do. This is where Casey’s language and logic comes into play. Some judges—Richard Posner of the Seventh Circuit, Myron Thompson of the Middle District of Alabama, William Fletcher of the Ninth Circuit, and the valiant, repeatedly-reversed Lee Yeakel of the Western District of Texas—understand the difference between persuasion and obstruction, and have required states to show that the health justifications they invoke are grounded in evidence-based medicine rather than in an effort to protect potential life in ways that Casey deems impermissible.
Casey has now been the law of the land longer than Roe itself. The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago. Women have actual, not politically manufactured, health concerns at stake. And dignity, too, is at stake: women's, the Supreme Court's, and the dignity of law itself.