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

Table of ContentsI. Introduction 1136II. Casey's Balance: Intermediate Scrutiny 1140A. Purpose's First Function: Does the Legislation in Fact Serve a State Interest? 1144B. Purpose's Second Function: Smoking Out Hidden Purposes for Abortion Regulation 1145III. Post-Casey Purpose Inquiries in the Abortion Cases ... 1148IV. Review of Legislation's Service of Claimed State Interest as Purpose Inquiry Outside Abortion Jurisprudence 1156A. Equal Right to Liberty-United States v. Windsor 1159B. Eminent Domain Cases 1160C. Preemption Cases 1162V. The Future of First Function and Second Function Inquiries Under the Purpose Prong 1166VI. Conclusion 1170I. IntroductionMost 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,1 an "undue burden on a woman's ability to make th[e] decision to procure an abortion."2 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.3 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 4 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.5A 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.6 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,"7 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,8 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.9Because 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 analyses 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.10 The Fifth Circuit's own analysis of purpose has shifted along with the Circuit's ideological makeup. …