Justice THOMAS, dissenting.
Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court's troubling tendency "to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue." Stenberg v. Carhart, 530 U.S. 914, 954, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (Scalia, J., dissenting). As Justice ALITO observes, see post (dissenting opinion), today's decision creates an abortion exception to ordinary rules of res judicata, ignores compelling evidence that Texas' law imposes no unconstitutional burden, and disregards basic principles of the severability doctrine. I write separately to emphasize how today's decision perpetuates the Court's habit of applying different rules to different constitutional rights-especially the putative right to abortion.
To begin, the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.
This case also underscores the Court's increasingly common practice of invoking a given level of scrutiny-here, the abortion-specific undue burden standard-while applying a different standard of review entirely. Whatever scrutiny the majority applies to Texas' law, it bears little resemblance to the undue-burden test the Court articulated in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), and its successors. Instead, the majority eviscerates important features of that test to return to a regime like the one that Casey repudiated.
Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.
I
This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them-a *2322woman's right to abortion. The Court's third-party standing jurisprudence is no model of clarity. See Kowalski v. Tesmer, 543 U.S. 125, 135, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (THOMAS, J., concurring). Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: when the wrong party litigates a case, we end up resolving disputes that make for bad law.
For most of our Nation's history, plaintiffs could not challenge a statute by asserting someone else's constitutional rights. See ibid. This Court would "not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." Clark v. Kansas City, 176 U.S. 114, 118, 20 S.Ct. 284, 44 L.Ed. 392 (1900) (internal quotation marks omitted). And for good reason: "[C]ourts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." Broadrick v. Oklahoma, 413 U.S. 601, 610-611, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
In the 20th century, the Court began relaxing that rule. But even as the Court started to recognize exceptions for certain types of challenges, it stressed the strict limits of those exceptions. A plaintiff could assert a third party's rights, the Court said, but only if the plaintiff had a "close relation to the third party" and the third party faced a formidable "hindrance" to asserting his own rights. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ; accord, Kowalski, supra, at 130-133, 125 S.Ct. 564 (similar).
Those limits broke down, however, because the Court has been "quite forgiving" in applying these standards to certain claims. Id., at 130, 125 S.Ct. 564. Some constitutional rights remained "personal rights which ... may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (Fourth Amendment rights are purely personal); see Rakas v. Illinois, 439 U.S. 128, 140, n. 8, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (so is the Fifth Amendment right against self-incrimination). But the Court has abandoned such limitations on other rights, producing serious anomalies across similar factual scenarios. Lawyers cannot vicariously assert potential clients' Sixth Amendment rights because they lack any current, close relationship. Kowalski, supra, at 130-131, 125 S.Ct. 564. Yet litigants can assert potential jurors' rights against race or sex discrimination in jury selection even when the litigants have never met potential jurors and do not share their race or sex. Powers, supra, at 410-416, 111 S.Ct. 1364 ; J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). And vendors can sue to invalidate state regulations implicating potential customers' equal protection rights against sex discrimination. Craig v. Boren, 429 U.S. 190, 194-197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (striking down sex-based age restrictions on purchasing beer).
Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child. In Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), a plurality of this Court fashioned a blanket rule allowing third-party standing in abortion cases. Id., at 118, 96 S.Ct. 2868. "[I]t generally is appropriate," said the Court, "to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision." Ibid . Yet the plurality conceded *2323that the traditional criteria for an exception to the third-party standing rule were not met. There are no "insurmountable" obstacles stopping women seeking abortions from asserting their own rights, the plurality admitted. Nor are there jurisdictional barriers. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), held that women seeking abortions fell into the mootness exception for cases " 'capable of repetition, yet seeking review,' " enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Id ., at 125, 93 S.Ct. 705. Yet, since Singleton, the Court has unquestioningly accepted doctors' and clinics' vicarious assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court.1
Here too, the Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court's abortion precedents is whether there is an undue burden on a woman's access to abortion. See Casey, 505 U.S., at 877, 112 S.Ct. 2791 (plurality opinion); see Part II, infra . But the Court's permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue-and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an "undue burden" on women's access to abortion for "those [women] for whom [Texas' law] is an actual rather than an irrelevant restriction," ante, at 2320 (internal quotation marks omitted), without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. "[C]ommonsense inference[s]" that such a burden exists, ante, at 2318, are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it "involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy," Casey, supra, at 851, 112 S.Ct. 2791 (majority opinion), the Court has created special rules that cede its enforcement to others.
II
Today's opinion also reimagines the undue-burden standard used to assess the constitutionality of abortion restrictions. Nearly 25 years ago, in *2324Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674, a plurality of this Court invented the "undue burden" standard as a special test for gauging the permissibility of abortion restrictions. Casey held that a law is unconstitutional if it imposes an "undue burden" on a woman's ability to choose to have an abortion, meaning that it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id., at 877, 112 S.Ct. 2791. Casey thus instructed courts to look to whether a law substantially impedes women's access to abortion, and whether it is reasonably related to legitimate state interests. As the Court explained, "[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power" to regulate aspects of abortion procedures, "all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Gonzales v. Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007).
I remain fundamentally opposed to the Court's abortion jurisprudence. E.g., id., at 168-169, 127 S.Ct. 1610 (THOMAS, J., concurring); Stenberg, 530 U.S., at 980, 982, 120 S.Ct. 2597 (THOMAS, J., dissenting). Even taking Casey as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today's decision requires courts to "consider the burdens a law imposes on abortion access together with the benefits those laws confer." Ante, at 2309. Second, today's opinion tells the courts that, when the law's justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves. Ibid. Finally, even if a law imposes no "substantial obstacle" to women's access to abortions, the law now must have more than a "reasonabl[e] relat[ion] to ... a legitimate state interest." Ibid. (internal quotation marks omitted). These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny.
First, the majority's free-form balancing test is contrary to Casey . When assessing Pennsylvania's recordkeeping requirements for abortion providers, for instance, Casey did not weigh its benefits and burdens. Rather, Casey held that the law had a legitimate purpose because data collection advances medical research, "so it cannot be said that the requirements serve no purpose other than to make abortions more difficult." 505 U.S., at 901, 112 S.Ct. 2791 (joint opinion of O'Connor, KENNEDY, and Souter, JJ.). The opinion then asked whether the recordkeeping requirements imposed a "substantial obstacle," and found none.Ibid . Contrary to the majority's statements, see ante, at 2309, Casey did not balance the benefits and burdens of Pennsylvania's spousal and parental notification provisions, either. Pennsylvania's spousal notification requirement, the plurality said, imposed an undue burden because findings established that the requirement would "likely ... prevent a significant number of women from obtaining an abortion"-not because these burdens outweighed its benefits. 505 U.S., at 893, 112 S.Ct. 2791 (majority opinion); see id., at 887-894, 112 S.Ct. 2791. And Casey summarily upheld parental notification provisions because even pre-Casey decisions had done so. Id., at 899-900, 112 S.Ct. 2791 (joint opinion).
Decisions in Casey' s wake further refute the majority's benefits-and-burdens balancing test. The Court in Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam ), had no difficulty upholding a Montana law authorizing *2325only physicians to perform abortions-even though no legislative findings supported the law, and the challengers claimed that "all health evidence contradict[ed] the claim that there is any health basis for the law." Id., at 973, 117 S.Ct. 1865 (internal quotation marks omitted). Mazurek also deemed objections to the law's lack of benefits "squarely foreclosed by Casey itself." Ibid. Instead, the Court explained, " 'the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others .' " Ibid. (quoting Casey, supra, at 885, 112 S.Ct. 2791 ; emphasis in original); see Gonzales, supra, at 164, 127 S.Ct. 1610 (relying on Mazurek ).
Second, by rejecting the notion that "legislatures, and not courts, must resolve questions of medical uncertainty," ante, at 2310, the majority discards another core element of the Casey framework. Before today, this Court had "given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Gonzales, 550 U.S., at 163, 127 S.Ct. 1610. This Court emphasized that this "traditional rule" of deference "is consistent with Casey ." Ibid. This Court underscored that legislatures should not be hamstrung "if some part of the medical community were disinclined to follow the proscription." Id., at 166, 127 S.Ct. 1610. And this Court concluded that "[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends." Ibid .; see Stenberg, supra, at 971, 120 S.Ct. 2597 (KENNEDY, J., dissenting) ("the right of the legislature to resolve matters on which physicians disagreed" is "establish[ed] beyond doubt"). This Court could not have been clearer: Whenever medical justifications for an abortion restriction are debatable, that "provides a sufficient basis to conclude in [a] facial attack that the [law] does not impose an undue burden." Gonzales, 550 U.S., at 164, 127 S.Ct. 1610. Otherwise, legislatures would face "too exacting" a standard. Id., at 166, 127 S.Ct. 1610.
Today, however, the majority refuses to leave disputed medical science to the legislature because past cases "placed considerable weight upon the evidence and argument presented in judicial proceedings." Ante, at 2310. But while Casey relied on record evidence to uphold Pennsylvania's spousal-notification requirement, that requirement had nothing to do with debated medical science. 505 U.S., at 888-894, 112 S.Ct. 2791 (majority opinion). And while Gonzales observed that courts need not blindly accept all legislative findings, see ante, at 2309 - 2310, that does not help the majority. Gonzales refused to accept Congress' finding of "a medical consensus that the prohibited procedure is never medically necessary" because the procedure's necessity was debated within the medical community.