IRRECONCILABLE DIFFERENCES? WHOLE WOMAN'S HEALTH, GONZALES, AND JUSTICE KENNEDY'S VISION OF AMERICAN ABORTION JURISPRUDENCE.

• Author: Wolk, Laura

INTRODUCTION

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." (1) Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, (2) yet its contours remain elusive. Notably, two current members of the Court--Justice Breyer and Justice Kennedy--seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, (3) Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion (4) and indicated that courts should defer to States when they regulate in areas of medical uncertainty. (5) According to Justice Kennedy, "[w]here [the State] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power" to impose regulations "in furtherance of its legitimate interests." (6) More recently, Justice Breyer wrote in Whole Woman's Health v. Hellerstedt (7) that Casey requires courts to "consider the burdens a law imposes on abortion access together with the benefits those laws confer" on pregnant women. (8) Justice Breyer also opined that courts retain an active role in resolving questions of medical uncertainty (9) and took a narrow view of permissible State interests. (10) This decision maps onto the approach he took in authoring Stenberg v. Carhart, (11) another of the Supreme Court's seminal abortion decisions.

As a purely academic matter, these fundamentally conflicting interpretations of Casey are notable because of Justice Kennedy's co-authorship of that decision's joint opinion. Yet, the Court's alternative approaches have wide-ranging practical ramifications as well because they send radically different signals to state legislatures regarding the field of legitimate interests and the appropriate role of the courts in assessing legislation. Texas has recently brought this issue to the fore through its efforts to prohibit a particular type of second-trimester abortion procedure, which it calls a "live dismemberment abortion." (12) Under Gonzales, the Texas law should easily pass constitutional muster: It invokes the same interests as those Gonzales held to be legitimate, leaves alternative abortion methods untouched, and regulates in an area of medical uncertainty. Yet, looking largely to Whole Woman's Health for guidance, the United States District Court for the Western District of Texas struck down the law as facially unconstitutional. (13)

This Article uses Texas's latest legislative attempt to explore the tension arising out of the Court's inconsistent treatment of state interests and the role of the courts in assessing legislative factfinding. Part I re-examines the principles laid out in the Supreme Court's four canonical abortion decisions since Roe v. Wade. (14) It emphasizes the difference between Justice Breyer's and Justice Kennedy's approaches to applying Casey, culminating in Justice Kennedy's curious decision to join Justice Breyer's opinion (without comment) in Whole Woman's Health. Part II then describes the aforementioned Texas statute, Texas Senate Bill 8, and the district court's assessment of its constitutionality. It explains how this case demonstrates the inherent conflict between Gonzales and Whole Woman's Health and argues that the Texas law affords Justice Kennedy an apt vehicle to decide which interpretation of Casey should prevail. Specifically, it contends that challenges to laws such as Texas Senate Bill 8 would present the Court--and in particular Justice Kennedy--with the opportunity to reaffirm Gonzales and, in so doing, clarify the meaning and scope of Whole Woman's Health.

1. REVIEW OF THE CASE LAW

   This Part provides an overview of Roe v. Wade's four most important progeny: Planned Parenthood v. Casey, Stenberg v. Carhart, Gonzales v. Carhart, and Whole Woman's Health v. Hellerstedt. Many are no doubt already familiar with the terrain that these decisions cover. This summary focuses on the Court's inconsistent pronouncements regarding what interests may support a state's pre-viability abortion regulations, as well as the courts' role in evaluating a law's effects. More specifically, it identifies the differences in Justice Breyer's and Justice Kennedy's approaches to answering these questions, and it concludes by presenting the question of whether Gonzales and Whole Woman's Health may coexist.

   A. Planned Parenthood v. Casey

   In 1992, plaintiffs in Casey brought facial challenges to five provisions of the Pennsylvania Abortion Control Act. (15) In assessing the provisions' constitutionality, a plurality of the Court replaced the "elaborate but rigid" (16) trimester framework articulated in Roe with the now-familiar undue burden standard. (17)

   The decision's joint opinion--co-authored by Justices Kennedy, Souter, and O'Connor--reaffirmed:

   [T]he 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. (18) Even so, it also explained that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." (19) Though the Roe Court had also recognized this "important and legitimate interest in protecting the potentiality of human life," (20) the Casey joint opinion observed that subsequent Supreme Court decisions had "undervalue[d]" this "substantial interest," (21) giving it "too little acknowledgment and implementation." (22) Accordingly, the undue burden standard, which prohibits laws that have the "purpose or effect" of erecting "substantial obstacle[s] in the path of a woman seeking an abortion of a nonviable fetus," (23) seeks "[t]o protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life." (24) Thus, as the plurality explained, the standard permits "[regulations which do no more than create a structural mechanism by which the State ... may express profound respect for the life of the unborn ... if they are not a substantial obstacle" to a woman's right to obtain an abortion. (25)

   The Casey plurality also made it clear that the state may invoke other interests to support pre-viability regulations, including to "further the health or safety of a woman seeking an abortion." (26) Though "[unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle ... impose an undue burden," (27) the state may legitimately regulate to protect a pregnant woman's physical and psychological health. (28) Assessing one of the Act's informed consent provisions, a plurality of the Court stated that providing "truthful, nonmisleading information"--even information concerning what happens to the fetus during an abortion procedure--"furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." (29) In addition to fetal life and maternal health, the plurality also recognized the existence of "other valid state interest[s]" that may justify State regulations. (30)

   But Casey's overall tone is in some ways even more important than the rules it lays out. Throughout, the plurality opinion seemed to self-consciously adopt a diplomatic approach that aspired to strike a more accommodating balance between the many societal views on abortion. The plurality acknowledged that the Court's decision in Roe "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," (31) but that abortion nevertheless remained as divisive as it did in 1973. (32) It also recognized that, in practice, Roe systematically devalued state interests, which in turn prevented states "from expressing a preference for normal childbirth" through the "democratic processes." (33) Thus, the plurality stated that, unlike Roe's overly rigid framework, the undue burden standard provided "the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty." (34)

   B. Stenberg v. Carhart

   Eight years later, the Supreme Court had occasion to test Casey's attempt at conciliation in Stenberg v. Carhart. (35) There, an abortion provider challenged a Nebraska statute that criminalized performing "partial-birth" abortions. Writing for a five-Justice majority that included Justices O'Connor and Souter, Justice Breyer struck down the law as facially unconstitutional. (36)

   Before delving into its analysis, the Court described the procedures involved. As the Court explained, a partial-birth abortion, clinically known as an intact dilation and evacuation (intact D & E), refers to a second-trimester abortion that "begins with induced dilation of the cervix. The procedure then involves removing the fetus from the uterus through the cervix 'intact,' i.e., in one pass, rather than in several passes." (37) The mechanics of the procedure depend on the presentation of the fetus. "If the fetus presents head first (a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through the cervix." (38) But "[i]f the fetus presents feet first (a breech presentation), the doctor pulls the fetal body through the cervix, collapses the skull, and extracts the fetus through the cervix." (39)

   The intact D & E differs from its more standard counterpart, which also requires dilation of the cervix, because intact D & E involves the insertion of instruments through the cervix into...