Symposium: Abortion providers are not entitled to special judicial immunity from health-and-safety regulations

Misha Tseytlin is Solicitor General of the State of Wisconsin.

Two Terms ago, Justice Antonin Scalia – joined by Justices Anthony Kennedy and Clarence Thomas – opined in a concurring opinion that the courts should not create “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” The challenge to the Texas health-and-safety regulations of abortion providers in Whole Woman’s Health v. Cole, which will be argued before the Supreme Court on March 2, raises a related, critically important issue: should the Supreme Court create a doctrine of judicial immunity from garden-variety health-and-safety regulations, in which the immunity would be only “applicable” to the abortion industry. Under the Constitution and the Supreme Court’s case law, there is no basis for granting to abortion providers protections that are not afforded to other types of businesses.

Responding to the grisly revelations arising from the trial of Dr. Kermit Gosnell, state legislatures around the country understandably enacted laws that subjected outpatient abortion providers to additional health-and-safety regulations. In Wisconsin, Texas, and several other states around the country, legislatures required that all abortion doctors have admitting privileges at nearby hospitals, in order to ensure that abortion doctors are well qualified and to promote continuity of care. This admitting-privileges requirement is such a common-sense mandate that in 2003, the American College of Surgeons, American Medical Association, and American College of Obstetricians and Gynecologists concluded that the requirement that “[p]hysicians performing office-based surgery must have admitting privileges at a nearby hospital” is among the “Core Principles” for patient safety. Abortions, of course, often involve just such “office-based surgeries,” and the Gosnell crimes illustrate that additional oversight is entirely reasonable.

Responding to the Gosnell-inspired laws, abortion providers launched court challenges seeking to free themselves from these health-and-safety regulations. Similar admitting-privileges requirements for abortion providers, which some other states had enacted years earlier, had survived judicial review without much trouble. Yet, in Texas, a district court enjoined both the admitting-privileges requirement and an additional mandate that licensed abortion facilities meet standards for ambulatory surgical centers. The Fifth Circuit largely reversed this injunction and the Supreme Court will review that decision shortly. After the Supreme Court granted review in this case, the Seventh Circuit upheld a state-wide injunction against Wisconsin’s admitting-privileges requirement, punctuating that decision with an opinion casting aspersions on the motivations of the Wisconsin legislature and, by extension, the people of Wisconsin.

Before the Supreme Court, abortion providers and their supporters – including likely some of the same organizations that called admitting privileges “core” health-and-safety mandates for office-based surgeries just a decade ago – will argue that Texas’s mandates are overly burdensome compared to their benefits. That the abortion-provider industry would raise such objections is not surprising. After all, similar regulation-is-overly-burdensome arguments are often made by businesses, from industries devoted to developing life-saving medicines to those that provide goods and services that citizens use every day. There is an important debate to be had about the level of regulation that government should impose on private enterprise. And, of course, sometimes businesses go to court to challenge laws that burden their operations, seeking protections under established case law.

But what abortion providers in this case are asking for is a novel level of judicial protection, not afforded to other businesses in America: they would like all laws affecting their particular industry to get exacting judicial scrutiny. This request is inconsistent with the Supreme Court’s jurisprudence, which has consistently upheld regulations on the abortion industry, including a requirement that abortions be provided by doctors, a federal prohibition of partial-birth abortions, a mandate that certain abortions be performed at state-licensed clinics, parental-notification requirements, restrictions against public funding of abortions, and recordkeeping and reporting mandates. In the physician-requirement case, for example, the Supreme Court upheld a state law mandating that abortions be performed only by licensed doctors, not physician’s assistants, deeming irrelevant the argument by the abortion provider that “all evidence contradicts that there is any health basis” for such a rule. The Supreme Court took the same approach in the federal partial-birth abortion case, refusing to consider the restriction’s policy wisdom and quoting with approval the proposition that courts are not empowered to “serve as the country’s ex officio medical board with powers to approve or disapprove . . . operative practices and standards throughout the United States.”

Accepting abortion providers’ assertion that they should become a judicially favored industry would also contradict Kennedy’s understanding that “abortionists” provide procedures that “many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.” Granting special judicial protection for this industry would be a deep insult to such “decent and civilized” Americans, especially since other industries do not receive this protection. And it would also be an affront to millions of other Americans who, although generally supporting legal abortion, believe that this particular industry – if left unregulated – may produce more shocking crimes like those committed by Gosnell. At the very minimum, an industry that engages in such a business should not receive additional judicial protection that is not afforded to businesses of an entirely different character.

Once the abortion providers’ pleas for unprecedented judicial solicitude for their businesses are properly set side, the remaining inquiry for the courts is an exceedingly narrow one: do the generally valid health-and-safety requirements on abortion providers place an “undue burden” on women seeking abortions in particular cases? As the Supreme Court explained in upholding the facial validity of the federal partial-birth abortion ban, such as-applied challenges involve a focus on “discrete and well-defined instances.” A finding of an undue burden in such a “discrete and well-defined instance” would then permit a court to craft a narrow, targeted remedy. In conducting this confined inquiry, a court should follow Judge Daniel Manion’s explanation in his dissenting opinion in the Seventh Circuit that “we must look to the regulation’s effect on the prospective patient, not to the inconvenience the regulation presents to the abortionist.”

Whatever the proper application of the as-applied undue-burden inquiry in “discrete and well-defined instances,” that narrow inquiry cannot justify upholding broad injunctions against the Texas law or the similarly capacious injunction against the Wisconsin law at issue in the Seventh Circuit. The health-and-safety protections that states like Texas and Wisconsin have recently enacted to regulate the abortion industry are entirely reasonable. Comparable laws would easily survive judicial review if they dealt with a different industry, and the result here should be the same.

[Correction:  An earlier version of this post included Justice Samuel Alito as among those who joined with Scalia in his concurring opinion in McCullen v. Coakley.]