The Supreme Court is likely to revisit the contentious subject of abortion next term, as lower courts have split over whether various restrictions on abortion and regulations of abortion providers constitute impermissible “undue burdens” on the constitutionally protected abortion right. Under existing precedent, states may regulate and even seek to discourage abortion provided that the “purpose or effect” of the regulations is not to “place a substantial obstacle in the path of a woman seeking an abortion” before the fetus has attained viability. Under this standard, lower courts have split on the permissibility of various rules governing the prescription of abortifacient drugs and regulations governing abortion providers, among other things.

One case teed up for Supreme Court review concerns a Texas law that, among other things, requires abortion clinics to meet the same standards as ambulatory surgical centers and requires doctors performing abortions to have admitting privileges at a nearby hospital. It’s estimated these rules would force the closure of half of the existing abortion clinics in Texas. They were nonetheless upheld by a panel of the U.S. Court of Appeals for the 5th Circuit, only to be put on hold by the Supreme Court, pending a petition for certiorari.

If a cert petition is filed in the Texas case, it would seem almost certain to be granted. In the meantime, other federal appellate courts continue to consider challenges to state-level abortion restrictions. In one such case, MKB Management Corp. v. Stenehjem, the U.S. Court of Appeals for the 8th Circuit urged the Supreme Court to do more than apply its existing “undue burden” standard. Instead, the judges suggested, the high court should reconsider its abortion jurisprudence from the ground up.

The law at issue in MKB prohibits doctors from performing abortions if the fetus has a detectable heartbeat. This North Dakota law clearly runs afoul of the current “undue burden” test as it would prohibit some abortions before fetal viability. On this basis, the 8th Circuit panel had no difficulty striking the law down. But the 8th Circuit panel did not stop there. It went on (for five pages) to urge the Supreme Court to revisit existing abortion jurisprudence, expressly citing the criteria the Supreme Court itself identified in Casey as valid grounds for reconsidering an existing precedent.  Excerpts of the 8th Circuit opinion follow.

Although controlling Supreme Court precedent dictates the outcome in this case, good reasons exist for the Court to reevaluate its jurisprudence. . . .

To begin, the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the “substantial state interest in potential life throughout pregnancy.” Casey, 505 U.S. at 876 (plurality opinion). By deeming viability “the point at which the balance of interests tips,” id. at 861, the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn. This leads to troubling consequences for states seeking to protect unborn children. For example, although “states in the 1970s lacked the power to ban an abortion of a 24-week-old-fetus because that fetus would not have satisfied the viability standard of that time, [t]oday . . . that same fetus would be considered viable, and states would have the power to restrict [such] abortions.” . . . How it is consistent with a state’s interest in protecting unborn children that the same fetus would be deserving of state protection in one year but undeserving of state protection in another is not clear. The Supreme Court has posited there are “logical and biological justifications” for choosing viability as the critical point. Roe, 410 U.S. at 163. But this choice is better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.

By taking this decision away from the states, the Court has also removed the
states’ ability to account for “advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life,” . . . including that “a baby develops sensitivity to external stimuli and to pain much earlier than was. . . believed [when Roe was decided].” . . . “[B]ecause the Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate” medical and scientific advances. Thus the Court’s viability standard fails to fulfill Roe’s “promise that the State has an interest in protecting fetal life or potential life.”

Assuming the Supreme Court does take up an abortion case next term — and is urged to reconsider Casey and Roe by some of the parties — how many justices will be willing to take this step? Two justices (Scalia and Thomas) are on record calling for the outright reversal of Roe, and a third (Kennedy) is co-author of the existing “undue burden” standard. Four others (Ginsburg, Breyer, Kagan and Sotomayor) clearly seek to expand the constitutional protection of abortion, and so won’t green light additional restrictions. The chief justice and Justice Alito have voted to uphold abortion restrictions, such as the federal ban on “partial-birth abortion” in Gonzales v. Carhart, but did so applying Casey‘s undue burden standard (as did Kennedy). The question, then, is whether those two justices are willing to go any further, and whether Justice Kennedy would go along.

If forced to offer a prediction, I doubt a majority of the court will accept the 8th Circuit’s invitation to reconsider Casey or Roe. Justice Kennedy may be willing to apply the undue burden standard more narrowly than some, but he’s not willing to reject it. It is his baby, after all (conceived with Justices O’Connor and Souter). Given this fact, I doubt the chief justice will call for upending existing precedent either. So even if Justice Alito is willing to join Scalia and Thomas on this point (and there’s a better-than-even chance that he would), there are unlikely to be more than three justices willing to radically revisit existing abortion jurisprudence.

So this is the bottom line: If and when the Supreme Court considers new state restrictions on abortion, there’s a fair chance such restrictions will be upheld as consistent with Casey, but the underlying doctrinal framework and undue burden analysis will survive.