SCOTUS Abortion Case May Have Voting Rights Ramifications

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By Kimberly Strawbridge Robinson

Aug. 9 — The U.S. Supreme Court's June decision invalidating Texas abortion restrictions could make it harder for states to justify voting restrictions, Stanford Law School's Pamela Karlan said Aug. 5 while speaking at the American Bar Association's annual meeting.

The court's test for examining abortion rights is doctrinally similar to the test used for voting rights, Karlan told Bloomberg BNA in an interview.

Therefore, the court's clarification of abortion's “undue burden” standard could have ramifications for cases challenging recent voting restrictions, like voter identification laws, she said.

It's a subtle shift, but it means courts will probably be more skeptical of voter ID laws, Karlan said.

Lowering Standard of Review

Until the 1980s, the Supreme Court analyzed voting and abortion restrictions under “standard-style strict scrutiny,” Karlan said.

That standard of review requires governments to show that a law that burdens constitutional rights is necessary to achieve a “compelling state interest,” and that the law is “narrowly tailored” to meet that interest.

It's a high burden that is applicable to “fundamental rights,” like the right to be free from racial discrimination.

But the court began subjecting some voting and abortion regulations to a lower standard of review during William Rehnquist's tenure as Chief Justice, between 1986 and 2005, Karlan said.

Starting with voting rights, the court said that indirect burdens on the right to vote—those that didn't outright bar the right to vote—were subject to a balancing test, in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).

Instead of having to meet strict scrutiny, these laws would be upheld as long as they didn't “unreasonably” burden the right to vote in light of the state's “important regulatory interests,” the Burdick court said.

Then in 1992, the court similarly said that abortion restrictions were only invalid if they have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

Benefits Claimed Must Exist

The tests applicable to voting and abortion restrictions are very similar, Karlan said.

So the court's recent clarification of the “undue burden” analysis in a challenge to Texas abortion restrictions provides some guidance for voting rights disputes too, she said.

Before the court considered Whole Woman's Health v. Hellerstedt, 84 U.S.L.W. 4534, 2016 BL 205262 (June 27, 2016) (84 U.S.L.W. 1931, 6/30/16), it was an open question whether a state had to show that the abortion laws being challenged actually produced the benefits being asserted by the laws.

But in invalidating the Texas abortion regulations in Whole Woman's Health, the Supreme Court clarified that courts should “consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden.”

The court found that Texas's abortion regulations didn't actually make abortions any safer, as the state had claimed, and therefore that the laws were unconstitutional.

Karlan said the shift in the test was small but significant.

It means that states can't show only that a rational reason exists to pass the laws, but that the law actually produces the benefits that are being claimed, Karlan said.

Rising Skepticism

That could have implications for voting rights cases, like those challenging state voter ID laws, she said.

For example, in striking down North Carolina's voter ID requirements July 29, the U.S. Court of Appeals for the Fourth Circuit said that the law provided “inapt remedies” for “problems that did not exist”—namely, in-person voter fraud—in N.C. Conference of NAACP v. McCrory, No. 16-1468, 2016 BL 245698 (4th Cir. July 29, 2016) (85 U.S.L.W. 126, 8/4/16).

That case demonstrates how courts are looking at voting restrictions with more skepticism following Whole Woman's Health, Karlan said.

Burden Analysis Narrowed

Moreover, the court's clarification in Whole Woman's Health, that the focus of the burden analysis is on the women actually affected by the laws, could have important implications for voting rights cases, Karlan said.

In that case, the court said that “the relevant denominator” in determining whether the burden is substantial “is ‘those [women] for whom [the provision] is an actual rather than an irrelevant restriction.' ”

By focusing the burden analysis on only those that are actually burdened—rather than all voters—the court made it easier for plaintiffs to show that voter ID laws are unnecessarily burdensome, Karlan said.

Instead of having to prove that all voters are burdened by voter ID laws, plaintiffs can now focus on how the laws burden specific individuals, usually minorities and poor people.

Karlan added that she is working on a paper examining the link between the court's decision in Whole Woman's Health and voting rights, which she should complete before the end of the year.

The panel on which Karlan spoke was “The Roberts Court 2015–2016: A Tragic Death, Its Impacts, and the Future of the Roberts Court.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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