Brendan T. Beery (Western Michigan University Cooley Law School) has posted Tiered Balancing and the Fate of Roe v. Wade: How the New Supreme Court Majority Could Turn the Undue-Burden Standard Into a Deferential Pike Test (Kansas Journal of Law & Pubic Policy, Forthcoming) on SSRN. Here is the abstract:
If the new Supreme Court majority wishes to hollow out the core holding of Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health v. Hellerstedt — the holding that a woman has a fundamental unenumerated right to terminate a pregnancy during pre-viability — then it will likely do so without expressly overruling existing precedents. In Hellerstedt, the Court unwittingly provided a way for its new, more socially conservative iteration to do just that.
In Hellerstedt, the Court expressly stated that the undue-burden standard to be applied in reproductive rights cases was a balancing test pitting the burden on the woman’s right to terminate a pregnancy against the countervailing benefits associated with any such burden. But balancing tests, although scholars and courts rarely say so explicitly, are tiered just like the better-known means-ends standards known as strict scrutiny, intermediate scrutiny, and rational-basis review. Means-ends tests exist to smoke out bad motives, whereas bilateral and oppositional balancing tests exist to weigh competing policy interests against each other. Sometimes balancing tests are neutral; a court does not put its thumb on either side of the scale. But some balancing tests are asymmetric. Incursive balancing weights the individual’s interest or the constitutional principle at stake more heavily than the state’s interest in overcoming it. Deferential balancing, on the other hand, weights the state’s interest more heavily than the individual or constitutional interest implicated in a given case.
Because the Hellerstedt Court did not clarify which type of balancing test was to be used — incursive, neutral, or deferential — the new Court majority can simply say that it is applying (rather than overruling) Hellerstedt when it employs a deferential balancing test under which a burden on a woman’s right to terminate a pregnancy is only invalid if it is clearly excessive in relation to any benefit. In this way, the Court can remake the undue-burden standard as something like the dormant-commerce Pike test, a test under which the government normally wins.