Not Even Casey Is As Bad As the 5th Circuit Thinks

As Anderson noted in comments recently, Judge Dennis’s dissent from the 5th Circuit’s denial of an en banc hearing of its opinion allowing Texas to force most of the state’s abortion clinics to close without any legitimate independent justification is very good:

In upholding Texas’s unconstitutional admitting-privileges requirement for abortion providers and medication-abortion restrictions, the panel opinion flouts the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania. v. Casey by refusing to apply the undue burden standard expressly required by Casey. Instead, the panel applied what effectively amounts to a rational basis test — a standard rejected by Casey — under the guise of applying the undue burden standard. The panel’s assertion that it applies Casey is false because it does not assess the strength of the state’s justifications for the restrictive abortion laws or weigh them against the obstacles the laws place in the path of women seeking abortions, as required by Casey. A correct application of the Casey undue burden standard would require that the admitting – privileges provision and medication – abortion restrictions be stricken as undue burdens because the significant obstacles those legal restrictions place in the way of women’s rights to previability abortions clearly outweigh the strength of their purported justifications.

If not overruled, the panel’s sham undue burden test will continue to exert its precedential force in courts’ review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana, and Mississippi.”

Certainly, the history of Casey has shown the vast inferiority of the “undue burden” test compared to Roe’s strict scrutiny test. Nevertheless, despite its vagueness it has to mean a higher standard of scrutiny than rational basis, and the Texas statute could not survive any scrutiny more heightened than the rational basis the 5CA panel applied in practice. The panel acted as if the rational basis test Rehnquist tried to replace Roe with in his throw-Roe-from-the-caboose draft in Webster, and not Casey, was the controlling precedent. I fear that Kennedy might be headed in this direction, but at he very least 5CA can’t do it before he does.