Breyer, Sotomayor, and Kagan, JJ., dissenting
mostly does not even grant certiorari on one-year-old, one-to-one Circuit splits, because we know that a bit of disagreement is an inevitable part of our legal system. To borrow an old saying that might apply here: Not one or even a couple of swallows can make the majority's summer.
Anyone concerned about workability should consider the majority's substitute standard. The majority says a law regulating or banning abortion "must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests." Ante, at 77. And the majority lists interests like "respect for and preservation of prenatal life," "protection of maternal health," elimination of certain "medical procedures," "mitigation of fetal pain," and others. Ante, at 78. This Court will surely face critical questions about how that test applies. Must a state law allow abortions when necessary to protect a woman's life and health? And if so, exactly when? How much risk to a woman's life can a State force
pressive. The majority says that lower courts have split over how to apply the undue burden standard to parental notification laws. See ante, at 60, and n. 54. But that is not so. The state law upheld had an exemption for minors demonstrating adequate maturity, whereas the ones struck down did not. Compare Planned Parenthood of Blue Ridge v. Camblos, 155 F. 3d 352, 383–384 (CA4 1998), with Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F. 3d 973, 981 (CA7 2019), cert. granted, judgment vacated, 591 U. S. __ (2020), and Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F. 3d 1452, 1460 (CA8 1995). The majority says there is a split about bans on certain types of abortion procedures. See ante, at 61, and n. 55. But the one court to have separated itself on that issue did so based on a set of factual findings significantly different from those in other cases. Compare Whole Woman's Health v. Paxton, 10 F. 4th 430, 447–453 (CA5 2021), with EMW Women's Surgical Center, P.S.C. v. Friedlander, 960 F. 3d 785, 798–806 (CA6 2020), and West Ala. Women's Center v. Williamson, 900 F. 3d 1310, 1322–1324 (CA11 2018). Finally, the majority says there is a split about whether an increase in travel time to reach a clinic is an undue burden. See ante, at 61, and n. 56. But the cases to which the majority refers predate this Court's decision in Whole Woman's Health v. Hellerstedt, 579 U. S. 582 (2016), which clarified how to apply the undue burden standard to that context.
