On Friday, on the 43rd anniversary of the infamous Roe v. Wade decision, the National Right to Life Committee (NRLC) filed a friend-of-the-court brief in the U.S. Supreme Court supporting Texas against a challenge to the state’s quality standards for abortion providers–Whole Woman’s Health v. Cole. Texas requires, as do many states, that abortionists have hospital admitting privileges and that abortion clinics meet the same standards as other ambulatory surgery clinics.
The U.S. Court of Appeals for the Fifth Circuit upheld the Texas laws.
Key to the case is the level of scrutiny federal courts should apply to decide if such laws are constitutional. The NRLC brief addressed the Court’s “undue burden” scrutiny, explaining that the Fifth Circuit correctly followed that applicable test.
The brief put the undue-burden test in the context of the Supreme Court’s early adoption of the role of national medical board, in which it substituted its judgment for that of legislatures in striking quality-control regulations of abortion providers. It did this though it originally said, in Roe v. Wade (1973), that states could enact such regulation.
The brief then explained how Justice O’Connor argued in her dissent in Akron (1983) that the Court should adopt a more deferential undue-burden test. The brief noted that NRLC submitted a friend-of-the-court brief in Casey (1992), stating what would be necessary to make an undue-burden test workable.
In Casey, the Court adopted key aspects of that approach, in a decision that Justice O’Connor co-authored. Casey’s lower-scrutiny, more deferential, undue-burden test got the Court out of the medical-board role.
The NRLC brief explained that the nature of the undue-burden test from Casey must be understood in light of Justice O’Connor’s understanding of it in her Akron dissent. The brief showed that Casey’s undue-burden test, properly understood, supports the Fifth Circuit’s analysis. And it explained that the concerns that caused the Court to reaffirm Roe generally in Casey while abandoning the medical-board role by greater deference require the Court to not abandon the proper understanding of the undue-burden test (unless the Court wants to overrule Roe).
James Bopp, Jr., NRLC’s General Counsel and co-author of NRLC’s brief here and in Casey, comments: “After striking many reasonable medical regulations, the Supreme Court decided to abandon the medical-board role in Casey. It did so with a lower-scrutiny, undue-burden test. The Texas challengers want the Court to again be the national medical board by reviving strict scrutiny. That would damage the rule of law and the Court’s legitimacy.”