Supreme Court opinions — how they are written, articulated and justified — can be more important than the ruling in a case. As Gordon Silverstein and Amanda Hollis-Brusky discuss, law is path-dependent. Translated, that means that how the opinion is written — what reasoning is used, what arguments are invoked and what types of thinking are refuted — can have ripple effects on how future courts, lower courts and other political actors respond to or extend related policies. Extensive scholarship shows that how an issue is framed dramatically shapes how policies develop. For instance, Rachel VanSickle-Ward and Kevin Wallsten’s current work on contraception policy explores the fact that although reproductive care is central to women’s health, the issue is sometimes discussed without involving women.
Here are two of the most subtle — but significant — shifts that the Whole Woman’s Health opinion signals from the way case law has been dealing with abortion since the 1992 Planned Parenthood v. Casey decision. In brief, Breyer’s opinion puts evidence and women’s stories front and center in the abortion debate. Further, the opinion slightly increases the standard of review for states enacting abortion regulations.
1. Courts will now hear evidence from women and physicians about women’s health rather than relying exclusively on the judgment of state legislators.
In other words, from here on in, women’s stories matter.
Of course, Roe v. Wade (1973) is the highest-profile Supreme Court case dealing with abortion. But most of the laws regulating abortion access emerged from Planned Parenthood v. Casey. Casey made it easier for states to regulate and restrict abortion, so long as those regulations didn’t place an “undue burden” on the woman’s ability to end a pregnancy before the fetus became viable (meaning, could survive outside a uterus). Casey also ushered in judicial deference to state legislatures, allowing lawmakers to define what was and was not necessary or beneficial for women’s health, and ruling that courts would rely on legislative findings and judgments on these issues.
Because of those two revisions to Roe, Casey opened the door to a flurry of state restrictions on abortion. Those often include what abortion advocates call TRAP (Targeted Regulation of Abortion Provider) laws, like Texas’s HB 2, the statute under review in Whole Woman’s Health. HB 2 advocates claimed that the stringent requirement on providers and clinics were needed to protect women’s health. Reproductive rights advocates countered that the restrictions served no medical purpose and hindered women’s health by closing down a significant number of clinics.
Here’s what Breyer’s opinion has changed. In a clear departure from Casey, the majority opinion in Whole Woman’s Health announces that state legislatures’ findings about what is necessary for women’s health will now be considered alongside, and weighed against, the evidence that abortion providers and advocates offer in filings, testimony and other submissions to the court.
This means that courts can now examine and question what state legislatures say about a given abortion law’s health, safety and medical benefits. They can consider litigants’ briefs and amicus curiae briefs (“friend of the court briefs”). And political science research has demonstrated that amicus briefs are a key mechanism by which outside interest groups and actors can influence Supreme Court decisions.
Courts, in other words, will now hear women’s stories about their health and decisions directly, not just what legislatures have concluded about women’s health. That’s big.
This shift could change jurisprudence about women’s health far beyond abortion – for instance, in cases about access to contraception. In Burwell v Hobby Lobby, Justice Alito, writing for the majority, concluded that an employer’s religious liberties should include being free from having to offer insurance that covered contraception with no out-of-pocket costs.
Whole Women’s Health may make it more likely that in future challenges to this decision, judges will consider briefs and testimony about the importance of contraception to women’s reproductive health alongside any evidence about religious liberty.
2. The opinion subtly but significantly ratchets up the “undue burden” standard from Casey, making it more difficult for states to regulate abortion.
In a move reminiscent of Ruth Bader Ginsburg’s subtle ratcheting up of gender discrimination claims under the equal protection clause in United States v. Virginia (VMI) (1996), the Whole Woman’s Health majority opinion requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer” (emphasis added).
Together with. Two small but consequential words that shift the judicial calculus for evaluating abortion regulations. Burdens and benefits will need to be weighed against one another.
As Vanessa Baird has written and Hollis-Brusky has shown in her own work, litigators respond to “signals” that the Supreme Court sends through its written opinions. This particular signal from Whole Woman’s Health should be clear: Abortion rights litigators should bring test claims challenging other state abortion regulations that were constitutional under the old standard. Justice Clarence Thomas, writing in dissent, picks up on this signal, warning that this new standard will call into question even “minor” and previously “valid” restrictions upheld under the Planned Parenthood v. Casey regime.
The regulations to which Thomas refers include state-mandated waiting periods and informed consent laws. Study after study has shown that waiting periods and informed consent laws disproportionately and significantly limit access to abortion for low-income women and women of color. Similarly, studies have had difficulty identifying how such regulations improve women’s health. If the Supreme Court will, post-Whole Woman’s Health, be considering burdens together with benefits, the states will find it harder to meet their burden of proof in court.
Amanda Hollis-Brusky is an associate professor of politics at Pomona College and the author of “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution” (Oxford 2015).
Rachel VanSickle-Ward is an associate professor of political studies at Pitzer College, author of “The Devil is in the Details: Understanding the Causes of Policy Specificity and Ambiguity” (SUNY 2014), and is co-authoring a book on birth control policy with Kevin Wallsten.