If the Purpose Fits: The Two Functions of Casey's Purpose Inquiry

Abstract

Most litigation over the constitutionality of abortion regulation has argued through the lens of “effect,” asking whether the regulation imposes, in the words of Planned Parenthood of Southeastern Pennsylvania v. Casey, an “undue burden on a woman’s ability to make th[e] decision to procure an abortion.” This emphasis on the effect of abortion regulations overlooks the other prong of the undue burden test, a test which prohibits regulations on abortion that have either the “purpose or effect” of imposing an undue burden. A proper understanding of the purpose inquiry applicable to abortion regulations is integral to the unique form of intermediate scrutiny the Casey plurality substituted for strict scrutiny review and the trimester framework set out in Roe v. Wade. Unfortunately, though, the Court was far from clear about the role the purpose inquiry in Casey was designed to serve, perhaps due to the evolving nature of liberty jurisprudence generally and instability in the tiers of review in particular.

A close reading of the Court’s use of purpose in Casey and subsequent abortion jurisprudence reveals that the purpose prong is serving two distinct functions. The first function of the purpose inquiry is to serve as a proxy for a determination of whether legislation in fact serves a legitimate state interest, one of sufficient importance to warrant the burden on rights it creates. Courts examine the evidence to determine whether the legislation serves the group of interests that the Supreme Court identified in Roe and Casey are valid reasons for the regulation of abortion. This part of the purpose test, which ensures that abortion legislation is not designed to “strike at the right itself,” is emphasized explicitly in numerous places in the decision. The second function of the purpose prong is to serve the “smoking out” function ascribed by many scholars to any “heightened” scrutiny analysis, which determines whether the legislation is serving a hidden illegitimate purpose. As discussed below, this second function of the purpose prong was also in play in Casey.

Because of the lack of clarity in Casey about these two distinct functions, both served in the name of “purpose,” and also because the role of the second function of purpose in equality jurisprudence has been the subject of much scholarly debate, the courts have conflated the two functions in their purpose analysis after Casey. The resulting doctrine is a mess, creating rampant confusion and decisions at odds on theoretical and practical levels. In particular, there is disagreement between the Circuits over the appropriate level of scrutiny of claimed state interests and whether this scrutiny is part of the purpose analysis. The Fifth Circuit’s own analysis of purpose has shifted along with the Circuit’s ideological makeup. As I show in what follows, some courts have merged their first function and second function purpose inquiries, further muddying the works.

After some early rigorous purpose analyses in the Fifth Circuit and Tenth Circuits in particular, and after a confused decision by the Supreme Court, purpose inquiry took a back seat. Now, however, states are pressing harder to find ways to restrict abortions in ways that will limit access, and lower courts struggle to articulate a line between regulations that have the effect of imposing “undue” burdens on the right to abortion, and are therefore unconstitutional, and regulations that place “tolerable” burdens on the right to abortion, and are therefore constitutional. Courts have returned to Casey’s purpose prong as a means to impose limits on regulations that are true to the balance that the plurality decision in Casey professed to create between the rights of women and the authority of the state to regulate abortions.

Two competing conceptions of purpose are locking horns in cases reviewing requirements that doctors obtain admitting privileges from a hospital within a certain distance of the facility at which they provide abortions. Decisions from the Seventh Circuit and the Fifth Circuit, one issued on a motion for preliminary injunction, and so at an early stage in the litigation, and the other rushed through to conclusion and issued as this paper goes to press, are on a collision course that will end only in the Supreme Court. The Seventh Circuit decision requires a hands-on review of the evidence to determine whether the state proved that the legislation in fact served the claimed state interest, while the Fifth Circuit applies a form of review below rational basis review, what we might call oxymoronically “rational speculation” review. This Article (1) identifies the two functions served by Casey’s purpose prong and the role both functions serve in preserving Casey’s unique form of intermediate scrutiny, (2) argues that these two functions are analytically distinct and demand two separate inquiries, and (3) shows that Casey’s version of intermediate scrutiny requires courts to undertake a first function review of purpose by determining whether abortion legislation in fact serves a legitimate state interest.