By Noah Feldman
What if the U.S. Supreme Court issued a landmark abortion rights ruling — and nothing changed? Case in point: Whole Women’s Health v. Hellerstedt, the decision from last June that established a new and improved constitutional rule for when a law unduly burdens a woman’s right to choose.
Legally, the ruling struck down a Texas law that forced abortion clinics to close unless they qualified as ambulatory care centers. But now, almost a year later, only two of the clinics closed by the law have reopened. Roughly two dozen others closed during the three years the law was in effect, and many or most of those are unlikely to be revived.
That’s pretty stunning. The Hellerstedt case is now part of the law of the land. It’s in the constitutional law casebooks. (I know, because I put it in the one I co-edit.) Students are learning it and being tested on its holding. Yet the court’s decision isn’t having the real-world effect that it is supposed to.
There’s a profound lesson here for our system of constitutional review. The framers could have given the Supreme Court the authority to review laws before they are passed and executive actions before they are taken. Because they didn’t, it’s possible for an unconstitutional government action to remain in place for significant period of time before the court strikes it down. The real-world effects of such enactments can be devastating.
The Hellerstedt opinion is a particularly harmful example of this phenomenon because the decision is in principle so grounded on practicality. The issue before the court was the content of the so-called undue burden test that the court had announced in the 1992 decision Planned Parenthood v. Casey.
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