Forty-five years ago, Justice Byron White lamented (in his dissent in Planned Parenthood v. Danforth (1976)) that the Court’s concoction of a supposed constitutional right to abortion meant that the Court was operating both as “the country’s continuous constitutional convention [and] also its ex officio medical board with powers to approve or disapprove medical and operative practices and standards [on abortion] throughout the United States.” A ruling yesterday by a federal district court in Indiana illustrates that Roe v. Wade and Planned Parenthood v. Casey would forever keep the federal judiciary, and ultimately the Court, in those illegitimate and unworkable roles. It thus accentuates the compelling legal arguments why the Court should overturn Roe and Casey in its decision next Term in Dobbs v. Jackson Women’s Health Organization.

In her 158-page opinion in Whole Woman’s Health Alliance v. Rokita, Judge Sarah Evans Barker confronted “a global assault on the constitutionality of Indiana’s statutory and regulatory restrictions on abortions.” Barker ruled against the constitutionality of several sets of restrictions and in favor of the constitutionality of others. For present purposes, rather than contest her conclusions, I’ll simply highlight that her analysis shows how unstable and malleable the Roe/Casey framework is. A few examples:

Barker rules that Indiana’s law, enacted in 1973, that allows only physicians to perform abortions is unconstitutional with respect to medication abortions. She dismisses the Court’s observation in Mazurek v. Armstrong (1997) that its prior cases “left no doubt that, to ensure the safety of the abortion procedure, the States may mandate that only physicians perform abortions,” and she instead reads Mazurek “to apply only to challenges to the legislative purpose.” Because “the reach of Indiana’s physician-only statute is substantially broader than Montana’s statute in Mazurek” and “the nature of abortion care has evolved substantially in the years since Mazurek was decided,” plaintiffs’ claim “clearly is not foreclosed by Mazurek.”

Barker also rules that Indiana’s requirement that second-trimester abortions be performed in a hospital or an ambulatory outpatient surgical center is unconstitutional. Here too, she sidesteps Supreme Court precedent (Simopoulos v. Virginia (1983)) that “was handed down … almost forty years ago,” as “medical advancements in administering second-trimester abortions have developed substantially” since then.

Barker forbids an informed-consent provision that requires that the woman seeking abortion be advised that “human physical life begins when a human ovum is fertilized by a human sperm.” She states that she “shares Plaintiffs’ concern” that this statement is “an assertion about the moral or ethical personhood of a fetus,” and she “find[s] superficial the State’s efforts to neutralize the import of this statement by declaring it medically accurate, scientifically uncontroversial, and not ideologically charged.”

As Barker notes, three decades after Casey, the elementary question whether applying the “undue burden” standard involves a balancing of benefits and burdens is a question on which “it appears that a split among the circuits is developing.” (She applies Seventh Circuit precedent holding that it does.)

Barker’s analysis, I’ll emphasize, is not entirely one-sided. And it’s no criticism of Barker (a Reagan appointee, as it happens) to note that the undue-burden standard is so irreducibly subjective that it inevitably requires her to indulge, overtly or covertly, her policy preferences.

In Barker’s case, those policy preferences aren’t difficult to detect. Citing Roe, Barker asserts that the Constitution “includes in poignant judicial parlance the freedom from state-required motherhood.” And she several times states that abortion procedures “empty the contents of the uterus.”

In one large sense, the only thing that is extraordinary about Barker’s ruling is how ordinary it is. Citing only cases from the last few years, law professors Mary Ann Glendon and Carter Snead observe in their excellent amicus brief in Dobbs:

Because of the confusion [that inheres in the undue-burden standard], lower courts have even struck down laws similar to laws this Court has already upheld. See Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809 (7th Cir. 2018), cert. granted, judgment vacated sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 184 (2020) (ultrasound and 18-hour waiting period); Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973 (7th Cir. 2019), cert. granted, judgment vacated sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 187 (2020) (parental consent); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 994 F.3d 774 (6th Cir. 2021) (48-hour waiting period); Falls Church Med. Ctr., LLC v. Oliver, 412 F. Supp. 3d. 668 (E.D. Va. 2019) (ambulatory surgical center requirement for second-trimester abortions).

For this and other reasons, the undue-burden standard “leave[s] state legislatures with little guidance as to what types of restrictions will be deemed valid” and would compel the Court to operate in perpetuity as the nation’s ex officio medical board on abortion.