What's the Harm? Richard Epstein on Whole Woman's Health v. Cole

We are showcasing the presentations of participants in the What’s the Harm? symposium.  Today we feature Prof. Richard Epstein, whose presentation can be found here.  

Abortion and the Supreme Court, by Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

In his recent remarks at the What’s the Harm? conference, captured here and in a blog post at Stanford University’s Hoover Institution web site, Professor Richard Epstein explains why he believes the Supreme Court, having granted certiorari, should reverse the Fifth Circuit’s decision in Whole Woman’s Health v. Cole. In that decision, the appeals court upheld the Texas regulations that have drastically reduced the availability of abortion in the Lone Star State. Epstein would have the Court “scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes.”

Epstein criticizes the Fifth Circuit for having given “undue credit to legislative wisdom” and for having made the availability of out-of-state abortions a reason for giving the Texas regulations a pass. The court made plain it was employing a watered-down version of the rational basis test. Epstein objects to the use of this test “to eviscerate the painful compromises wrought in [Planned Parenthood v. Casey].”  

Epstein does this even though he has long had profound misgivings about the soundness of Roe v. Wade, which he wrote about as long ago as 1973: Richard A. Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," 1973 Supreme Court Review 159 (1973). But at this point the debate is no longer about how to squeeze out the right of abortion from the Due Process Clause. It is about whether to reverse course some 42 years after the earlier decision was made. That might well be appropriate with a forthright opinion, which comes from the Supreme Court, although it is highly risky to upset a long-established constitutional balance. What is not acceptable is to overrule a decision in the guise of interpreting it, which is what is done when the rational basis test is invoked to insulate the decisions of the Texas legislature from any serious scrutiny.

This rise of the rational basis test did not originate with cases dealing with personal liberties, but with those dealing with questions of property rights. Epstein traces the appeals court’s deference to any “conceivable” legislative purpose to Hawaii Housing Authority v. Midkiff, where the Supreme Court validated Hawaii’s plan to dismantle the “economic evils of a land oligopoly” that, according to Epstein, never truly existed. He traces the appeals court’s invocation of out-of-Texas alternatives to abortion to Ruckelshaus v. Monsanto Co., where the Court reasoned that a law requiring manufacturers to disclose data in connection with the production of pesticides did not effect a taking because Monsanto could avoid the requirement by selling its pesticides only in foreign markets.

Epstein urges those who would criticize the Fifth Circuit’s decision to be consistent. If we believe that the rational basis test was inappropriately invoked in Whole Woman’s Health, we should not complain that, in Burwell v. Hobby Lobby, the Court refused to use it in evaluating a mandate that required even employers with religious objections to provide health-insurance coverage for contraception. We should not, in other words, “split[] the constitutional universe between those individual rights that merit serious protection and those that do not.” It is very important not to have political preferences determine the appropriate level of scrutiny in constitutional cases. In general, the right test is to give the deference associated with the business judgment rule to the government when it is in charge of running some public institution, like a school or the military. The hard choices require some deference to management expertise, although probably less than in the private sector, because the exit option is weaker with public bodies. But the higher standard does rightly apply when the government acts as a regulator as when it forces the sale of leasehold units in Midkiff, the registration of fungicides in Ruckelshaus, or the operation of private abortion clinics in Whole Woman’s Health.