There’s No Way to Uphold Mississippi’s Abortion Law under Casey

The Supreme Court will soon review a Mississippi law prohibiting abortions from 15 weeks onward (with exceptions for maternal health and severe fetal abnormalities). In a recent post, I argued that the Court would have a hard time upholding that law without fully overturning Roe v. Wade and the case that set the current constitutional test for abortion laws, Planned Parenthood v. Casey (1992). (The post identified obstacles to any of 13 possible “middle paths.”) A key premise was that upholding the law would require the Court to scrap Casey and replace its constitutional test with a new one (or have lower courts do so). But any replacement would be impossible to support with legal sources, and would make it hard for the Court to come back later to reverse Roe and Casey in full, as most believe this Court would want.

All of this assumed that there’s no possible reading of Casey under which Mississippi’s law would stand. Some have questioned that. And others have suggested that the Court might reject part of Casey while leaving the rest intact, as undisputed in this case, and thus manage to uphold the Mississippi law without having to embrace either Casey or a replacement doctrine.

I think that on closer inspection, both proposals undeniably misread Casey.

As to the first: Casey held that states may not impose an undue burden on abortion before viability. Those who think the Court could uphold Mississippi’s law without touching Casey say that this law imposes no “undue burden” because it leaves women plenty of time to abort—up to the 15th week. So the law leaves in women’s hands the “ultimate decision,” just as Casey demands. All Casey requires, on this view, is to give women a fair chance to decide whether to abort.

But Casey doesn’t say that a woman must get to make the ultimate decision whether to abort, period. It says she must get to make that call at each stage until viability. (Casey insists that the “ultimate decision” remain hers at six weeks, at seven weeks, and . . . up to viability around 24 weeks.) So the Casey test asks not whether a woman’s right to abort is unduly burdened, but whether her right to abort is unduly burdened at any pre-viability stage of pregnancy. If so, the law is invalid.

Second, those saying the Court could merely reject one part of Casey have supposed that Casey imposed two rules: (1) no undue burdens on abortion, and (2) no prohibitions before viability. On this view, the Court could reject the “no prohibitions before viability” rule, while declining for now to endorse or reject the “no undue burden” test, on the ground that it doesn’t have to: either way, Mississippi’s law would stand, since it imposes no undue burden.

But there aren’t two rules in Casey. There’s only one rule: “Undue burden” is just the thing that states may not impose at any given stage “before viability.” (Or more precisely, undue burdens and prohibitions are what the states may not impose at any stage before viability.) If the Court rejected Casey’s viability rule, there would be no freestanding “undue burden” test left over. So if the Court applied such a rule to Mississippi’s law, it would be embracing something new to replace Casey’s test, rather than simply leaving part of Casey undisturbed (without embracing it). And so the Court would, as I had suggested, own that replacement test, making it hard to come back and fully eliminate a constitutional right to elective abortion later on.

Four points support this reading of Casey:

1. Casey’s reasoning proves that it meant to reject any prohibition (or undue burden) that covers any point before viability, as shown by these passages:
   • “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” (Casey, 505 U.S. at 846, emphasis added.)
     • NB: Some say this passage was dictum. But Casey expressly regarded the point it was making as a “holding” of Roe, where the point arguably was essential to the result (410 U.S. at 164–65). Likewise, the passage above was bloc-quoted by the Court later on, in Gonzales v. Carhart (2007), 550 U.S. at 146, which also reported the points being made as “holdings.” And for decades, lower courts have uniformly understood the viability rule to be binding.
   • “Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” (Casey, p. 860, emphasis added).
   • “[V]iability [is] the point at which the balance of interests tips.” (p. 861).

By definition, a law that lacks “constitutionally adequate” justification is unconstitutional. Under Casey, then, Mississippi’s law must fall because its alleged public benefits are, as a matter of constitutional law, insufficient to justify its burdens on women from week 15 until viability (~week 24).

2. Casey’s repetition of “before viability”: Otherwise, why add “before viability” to every statement of Casey’s holding? If all Casey meant by “no undue burdens” is that women need a fair chance to decide to abort, it would have been redundant to add “. . . before viability,” since of course the fair chance would come, if at all, before viability. When else? No one was supposing that a state might leave women a fair chance to abort only after viability — by forbidding abortions early in pregnancy but allowing them later. So this “fair chance” reading of Casey makes a hash of the “pre-viability” language that is “central” and “essential” to Casey’s holding (p. 870). Nor can this reading explain the “earliest point” language in the second Casey quotation above. If “before viability” means anything, it means that viability is the earliest point at which bans — or undue burdens — can start.
3. The fact that Casey merely (and explicitly) reaffirms Roe as to abortion prohibitions and departs from Roe only in its treatment of incidental regulations that fall short of prohibiting or unduly burdening abortions. Casey didn’t have to belabor the “pre-viability” points above. Everyone would get it. Why? Because in its viability rule, Casey was avowedly reaffirming the core of Roe, and Roe — as no one doubted then, and no one doubts today — forbade all prohibitions that cut even a little bit before viability/start of third trimester (see pp. 872, 879, two lines that Casey and Roe treated interchangeably — see Casey, 872).

That’s confirmed by Roe’s express rationale — which Casey would go on to adopt: that the interest in saving fetal life does not become compelling until viability (see Roe, p. 163). This was fatal under Roe’s application of strict scrutiny.

So no one doubts that Mississippi’s law would have to fall under Roe. Yet Casey made only three changes to Roe, and none helps Mississippi here:

• First, while Roe imposed heightened scrutiny for all regulations so much as “touching upon” abortion (Casey, p. 861), Casey restored mere rational-basis review for any regulation touching on abortion that did not unduly burden or ban abortions (pp. 873–74). (For example, Roe would’ve imposed strict scrutiny on a law that, say, required clinics to meet modest sanitation requirements, whereas Casey would apply mere rational-basis review, unless the law had the “purpose or effect” of “prohibiti[ng]” abortion or “imposi[ng . . .] a substantial obstacle” to abortion (p. 878).) This shift makes no difference here, since Mississippi’s law does prohibit abortions.
• Second, while Roe limited which state interests could be pursued through regulation in each trimester (none in the first, the mother’s health in the second, and protection for fetal life only in the third), Casey left states free to pursue any of these interests at any stage of pregnancy, as long as they avoided bans and undue burdens (see Casey, p. 878). Again, since Mississippi’s law is a ban, this development, too, is irrelevant here.
• Third, for the subset of regulations targeted by Casey (bans and undue burdens), Casey didn’t bother to talk about strict scrutiny, as Roe had. Casey simply declared pre-viability bans/undue burdens invalid per se. But that made no difference, since Roe’s instructions on how to conduct the scrutiny analysis had pre-determined the same results: In reviewing abortion bans, as opposed to incidental regulations serving maternal health, Roe had told courts to find a compelling interest after viability, but not before. This guaranteed that any ban would fail strict scrutiny before viability but pass muster afterward — just what Casey reaffirmed. That’s why Casey could skip right to saying that a law is invalid per se if it bans (or unduly burdens) abortions pre-viability (p. 878). Since this shift from Roe’s framing didn’t change the fate of any bans, it couldn’t affect the fate of Mississippi’s ban.

Thus, for prohibitions, Roe and Casey set the same limits, as Casey kept saying. Since Roe, as Casey also noted, ruled out prohibitions that started before viability/third trimester, Casey does too. So Mississippi’s law fails under both.

4. Uniform conclusion of every judge to look at this in 30 years. If there were ways around this — ways to square Casey with a prohibition of abortions through part of the pre-viability period — Judge Ho on the Fifth Circuit would’ve found it, as he all but told us in his opinion on Mississippi’s law. But he said he couldn’t. He also said that Mississippi hadn’t pointed to any judicial opinion — not just any case, but any opinion (even a dissent) — finding ways around this. And he string-cited conservative circuit judges who had addressed prohibitions falling even a little bit pre-viability (Judges Manion, Carnes, et al.), and quoted each one’s admission that Casey required invalidation (945 F.3d at 278 n.2.).

So on any honest reading, Casey imposes a single test that Mississippi’s law clearly flunks. That’s why the Court, if it upholds Mississippi’s law, won’t be able to say that it’s applying, but not endorsing anew, Casey (or even part of Casey). The Court will have to scrap Casey and either endorse a replacement test, or effectively wipe out all heightened scrutiny of abortion laws.