Symposium: When “protecting health” obstructs choice

Reva Siegel is Nicholas deB. Katzenbach Professor at Yale Law School. Linda Greenhouse is Joseph Goldstein Lecturer at Yale Law School. Their article, Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice, will be published this spring in the Yale Law Journal.

Texas has enacted a law requiring abortion providers to obtain admitting privileges at local hospitals and to outfit themselves as ambulatory surgical centers. If enforced, the law will shut down clinics across the state – as the law’s supporters well appreciated. Shortly after the bill was sent to the Texas House of Representatives, then-Lieutenant Governor David Dewhurst tweeted a photo of a map that showed all of the abortion clinics that would close as a result of the bill, writing “We fought to pass SB5 thru the Senate last night, & this is why!” He then followed with a qualifying tweet: “I am unapologetically pro-life AND a strong supporter of protecting women’s health. #SB5 does both.”

When litigation commenced, Texas claimed that its admitting-privileges requirement served to protect women’s health. But in court the state’s solicitor general candidly announced the law’s fetal-protective goal:

[T]hese laws were not enacted solely to advance the State’s interest in maternal health. They were also enacted to advance the State’s interest in promoting and protecting fetal life. A law that is enacted to advance the State’s interest in the life of the unborn need not be medically necessary to survive constitutional challenge.

As litigation progressed, the state changed course yet again, returning to its initial position that the law was enacted to “improve the standard of care for abortion patients.” But supporters understood the law differently: “Supreme Court agrees to hear lawsuit challenging Texas’ pro-life law” is how the National Right to Life News described the Court’s grant of cert.

Because abortion restrictions are commonly assumed to protect unborn life, it might appear that little is at stake here. But everything turns on how Texas pursues that goal. The only way the Texas law protects unborn life is by closing clinics, and, under Planned Parenthood v. Casey, that way of protecting unborn life is unconstitutional.

In Planned Parenthood v. Casey, the Supreme Court revised the Roe framework to allow the state greater opportunities to protect life throughout pregnancy. Yet, at one and the same time, Casey affirmed a woman’s right to decide whether to carry a pregnancy to term. “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” For this reason, Casey imposed crucial restrictions on the means by which the government could protect fetal life. “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Casey thus upheld a twenty-four-hour waiting period and a mandatory counseling requirement, while striking down a law requiring married women to notify their husbands of their intention to terminate a pregnancy.

Thus, under Casey, Texas can protect potential life by means that respect women’s dignity – by persuading a woman to carry a pregnancy to term, not by imposing undue burdens that obstruct her access to abortion. The government may also regulate abortion in the interest of protecting women’s health. But the government may not conflate these two interests in the way that Texas does. A state may not use health-justified restrictions as a back-door means of protecting potential life in ways that the Constitution prohibits.

States can of course regulate abortion for health-related reasons, just as they can regulate any other medical procedure. But the Texas law is a classic example of a TRAP law (“targeted regulation of abortion providers”) that singles out abortion for burdensome health restrictions not imposed on medical procedures of similar or even greater risk. TRAP laws are unconstitutional not only because of their onerous impact but also because they employ health-justified restrictions to serve fetal-protective ends.

Casey makes clear that health-justified restrictions on abortion must actually advance legitimate health ends. In applying undue-burden analysis to health-justified restrictions on abortion, Casey observes: “As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” Casey requires scrutiny of facts supporting laws that single out abortion for unnecessary and burdensome health regulation. Factual inquiry serves a crucial anti-circumvention function: It is required to preserve the distinction between laws that restrict abortion to protect unborn life and laws that restrict to protect women’s health.

In a series of recent judgments, courts emphasize that Casey requires inquiry into the facts that justify laws targeting abortion for onerous health restrictions. The Fifth Circuit expressly rejects this view in the Texas case now in the Supreme Court.

Courts examine the facts supporting health-justified restrictions on abortion when applying both the purpose and effects prongs of Casey’s undue-burden standard. A weak factual basis for the health interest asserted may supply objective evidence of a purpose to impose a substantial obstacle. (Judge Richard Posner, in his recent opinion upholding an injunction against Wisconsin’s admitting-privileges law, observed that “[o]pponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure – abortion – that rarely produces a medical emergency.”) Examining the facts that justify a health regulation is also important in evaluating the law’s effects: Judges consider the extent to which a law advances the state’s interest in protecting health in determining whether the burden it imposes on women’s choice is warranted or “undue.” (Posner: “The feebler the medical grounds. . . the likelier is the burden on the right to abortion to be disproportionate to the benefits and therefore excessive.”)

The Fifth Circuit, by contrast, asserts that it is wholly improper for judges to examine the factual basis of the state’s claim that a restriction on abortion promotes women’s health. The court of appeals applies deferential rational-basis review, crediting without probing the state’s claim to regulate in the interests of women’s health. Only then does it determine, also from a highly deferential posture, whether the law’s impact creates a substantial obstacle. Where the Seventh and Ninth Circuits read Casey as requiring courts to evaluate the factual basis of the state’s claim to restrict abortion to promote women’s health, the Fifth Circuit reads Casey to prohibit this very inquiry as judicial interference with legislative prerogatives.

To justify its use of hyper-deferential rational-basis review, the Fifth Circuit invokes Gonzales v. Carhart, the Supreme Court’s 2007 decision that upheld the federal Partial Birth Abortion Ban Act. But the Fifth Circuit misconstrues that case on multiple grounds. First and perhaps most obviously, the law at issue in Carhart was enacted to protect potential life, not women’s health. It concerned a rarely employed method of performing abortions late in pregnancy and did not restrict any woman’s access to abortion before viability. The facts of Carhart were therefore remote from the mass closure of abortion clinics at issue in this case.

As importantly, Carhart itself applied Casey’s undue-burden standard. In determining whether the ban on its face required a health exception, the Court insisted that “[t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” The Court then expressly rejected multiple findings of fact by Congress. Accordingly, the Fifth Circuit’s decision flouts not only Casey, but Carhart as well, in reasoning about the regulation of abortion as ordinary social and economic legislation unconnected to constitutional rights.

The stakes are high as the Court reviews a new generation of abortion restrictions that do not simply communicate the state’s preference for childbirth but instead threaten wholesale destruction of the clinic infrastructure that enables women to exercise their constitutional right. Sanctioning laws of this kind threatens to make hollow the right Casey reaffirmed – all the more acutely so for the growing number of women living in jurisdictions hostile to abortion.

In deciding Casey, the Court allowed states to pursue fetal-protective ends, but only by means that respect women’s dignity. The Court has reaffirmed constitutional protections for dignity in Lawrence (in which Justice Anthony Kennedy quotes Casey explicitly), and more recently in Windsor and Obergefell. No less is required here.

In this case, protecting dignity requires judges to ensure that legislatures do not single out abortion for burdensome and unwarranted health restrictions that obstruct a woman’s decision to end a pregnancy. The question now is whether courts will authorize states to restrict abortion in ways the Constitution prohibits merely by relabeling an interest in protecting unborn life as an interest in protecting women’s health. Diluting Casey’s protections without respecting the core constitutional values at stake would compromise not only the dignity of women, but of the law itself.