What if the U.S. Supreme Court issued a landmark abortion rights ruling and nothing changed?
Case in point: Whole Women’s Health v. Hellerstedt, the decision from last June that established a new and improved constitutional rule for when a law unduly burdens a woman’s right to choose.
Legally, the ruling struck down a Texas law that forced abortion clinics to close unless they qualified as ambulatory care centers. But now, almost a year later, only two of the clinics closed by the law have reopened. Roughly two dozen others closed during the three years the law was in effect, and many or most of those are unlikely to be revived.
That’s pretty stunning. The Hellerstedt case is now part of the law of the land. It’s in the constitutional law casebooks. (I know, because I put it in the one I co-edit.) Students are learning it and being tested on its holding. Yet the court’s decision isn’t having the real-world effect that it is supposed to.
There’s a profound lesson here for our system of constitutional review. The framers could have given the Supreme Court the authority to review laws before they are passed and executive actions before they are taken. Because they didn’t, it’s possible for an unconstitutional government action to remain in place for significant period of time before the court strikes it down. The real-world effects of such enactments can be devastating.
The Hellerstedt opinion is a particularly harmful example of this phenomenon because the decision is in principle so grounded on practicality. The issue before the court was the content of the so-called undue burden test that the court had announced in the 1992 decision Planned Parenthood v. Casey.
In an opinion by Justice Stephen Breyer, crucially joined by Justice Anthony Kennedy as the fifth vote, the court held that a law’s burden on the abortion right could be measured by a cost-benefit test. The court asked whether the benefits to women’s health that the Texas law purported to provide outweighed the burdens to getting an abortion — and concluded that they did not.
The decision has hugely important legal consequences, and reflects a distinctive jurisprudence. Breyer is an old administrative law professor and was in his day a leading national expert on regulation. Costs and benefits are the hallmark of his analytic framework. It’s fair to say that the Hellerstedt case makes this analytic framework into the master narrative of abortion rights.
That’s a much stronger line of defense for abortion rights than previously existed. It will help enormously to protect against future abortion restrictions — at least so long as Kennedy is around to keep the precedent alive.
But all this apparently comes too late for women in Texas, because the lower courts didn’t freeze the law’s operation in the years it took for the Supreme Court to address the issue. Many abortion clinics closed. This was, in fact, an important part of the evidence considered by the court in its evaluation of costs and benefits.
By Noah Feldman
Lower courts do have the power to issue orders that block the operation of a law that they expect is likely to be held unconstitutional. But that’s relatively unusual — by design. Courts much prefer to treat laws or government actions as presumptively constitutional.
That makes a certain amount of sense. It seems healthy, at least in theory, to assume that legislators and executive officials are acting in good faith.
But there’s a more fundamental systemic reason for this presumption: The federal courts only review constitutionality once a law or action has been officially passed or enacted. Unlike some state courts, the federal courts won’t tell other government branches beforehand whether they think a law is constitutional.
The reason is supposed to be that the federal courts decide concrete issues, not abstract ones. There must be a “case or controversy,” according to Article III of the Constitution, before the judicial power can be exercised.
But, of course, the courts could take the view that there’s a concrete case or controversy when a law has been adopted but before it goes into place. At the Philadelphia convention in 1787, there was some discussion of judicial review before a law goes into effect, although in the end the framers chose not to mention judicial review at all in the Constitution.
Such a radical change isn’t in the offing, certainly not as a matter of constitutional interpretation. What could improve in the real world would be for courts to begin acting more readily to freeze laws that have a credible chance at being deemed unconstitutional.
Courts now ask whether the party seeking a freeze is likely to succeed on the merits and will suffer irreparable harm otherwise. Where fundamental rights are at stake, courts should be especially concerned not to allow such harm.
But the best remedy is for the legislative and executive branches to pass constitutional laws and make constitutional decisions. Legislatures and executives alike have become cavalier about rights infringement, confident in the knowledge that courts will save them from their errors. It would be good to remind everyone in the government that the oath to uphold the Constitution isn’t just for judges.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer or the Bloomberg editorial board or Bloomberg LP and its owners