In Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016), the Supreme Court’s first major abortion decision in over two decades, Justice Anthony Kennedy allied with its liberal wing to strike down a set of abortion health regulations many States had adopted in anticipation of a Court more receptive to such restrictions. Writing for the five-justice majority, Justice Steven Breyer purported to apply the Court’s undue burden analysis adopted in the watershed decision of Casey v. Planned Parenthood, 505 U.S. 833 (1992). With Kennedy’s critical vote, the lead plurality in Casey had adopted the undue burden approach as a compromise that allowed it to reaffirm the commitment of Roe v. Wade, 410 U.S. 113 (1973) to a pre-viability abortion right, but at the same time allowed States to place greater restrictions on it. The Casey plurality was particularly concerned the Court show substantial deference to State “persuasion regulations” — those designed to influence a woman’s choice in favor of having her child — but also ruled that maternal health regulations — those designed to promote the safety of the abortion procedure — were entitled to deference as well.
In his Hellerstedt opinion, however, Breyer transformed the Casey undue burden approach from one requiring substantial deference to abortion regulations — only overturning them if a plaintiff could prove they unduly burdened her abortion right — to a form of heightened scrutiny balancing that shifts much of the burden of proof back to States to show the regulations’ benefits. This was the same approach to maternal health regulations the Court had taken under the discarded Roe trimester framework — hence taking that tribunal “there and back again” in terms of its approach to them. The problem, however, is that Breyer did not differentiate between health and persuasion regulations in his opinion, raising the critical question of whether the Court intends to return to Roe’s stricter treatment of persuasion regulations as well.
This Article argues that even though Kennedy joined Breyer’s opinion without qualification, he would not subscribe to applying the new form of heightened scrutiny balancing to persuasion regulations. To do so would risk gutting the core of the Casey compromise he was instrumental to fashioning — allowing lower courts to weigh their benefits in promoting fetal life against their burdens on a woman’s decisional autonomy. Moreover, while health regulations can readily be imposed as a pretext to obstruct women’s access to abortions, persuasion regulations attempt to prevent abortions in a fairly transparent way. Hence, until the Court speaks more clearly on this matter, I believe lower courts would be advised to read Hellerstedt as requiring its new balancing approach solely for the type of regulation at issue in that case — maternal health regulations — and to continue applying Casey’s deferential approach to persuasion regulations.