Symposium: Will the Supreme Court legitimate pretext?

Aziza Ahmed is a professor of law at Northeastern University School of Law. She joined an amicus brief on behalf of reproductive justice scholars in support of the petitioners in June Medical Services v. Gee.

When the Supreme Court decided Whole Woman’s Health v. Hellerstedt in 2016, pro-choice advocates let out a collective sigh of relief. In declaring two provisions of a Texas law unconstitutional – an admitting-privileges requirement for physicians providing abortions and a requirement that clinics meet the standards of an ambulatory surgical center – the Supreme Court rejected the purported legitimacy of laws targeting abortion providers (also known as TRAP laws). The incremental passage of TRAP laws has been an active strategy of conservative anti-choice advocates who – as Reva Siegel has noted – act as though they are passing policies to protect women in the context of abortion. In fact, the laws are a pretext for making abortion more difficult, and sometimes impossible, to access. In Whole Woman’s Health, Justice Ruth Bader Ginsburg pointed this out in her concurrence, quoting Planned Parenthood of Wisconsin v. Schimel to observe that these laws are not designed to enable good health outcomes but are simply obstacles to accessing abortion.

In June Medical Services v. Gee the court is being asked to consider a new Louisiana law that mirrors the admitting-privileges requirement in Whole Woman’s Health. To find the Louisiana law constitutional would require overturning precedent. The most relevant precedent is Whole Woman’s Health’s restatement of Planned Parenthood v. Casey’s undue burden standard. In Whole Woman’s Health, the court explained that the undue burden test established in Casey is a balancing test that requires courts to consider the burdens a law imposes on abortion. The Supreme Court determined that Texas’ clinic regulations inflicted significant burdens while yielding no actual benefits. The balancing test restated in Whole Woman’s Health requires courts to explore whether “legal and factual” support for the law exists. Further, the majority noted that in order to make a finding about undue burden, it is necessary for appellate courts to consider the facts at hand, including those generated by the district court over the course of its proceedings. This allowed the Supreme Court to consider the district court’s findings regarding the Texas law, which clearly showed that the regulations would have a negative impact on women’s access to abortion.

In June Medical Services, the district court made a set of findings similar to those of the district court in Whole Woman’s Health with regard to the impact of the law. It noted, among other findings, that the law would do nothing to improve women’s health, that admitting privileges do not ensure the competency of a physician and that there was no evidence that admitting privileges would help women obtain better treatment. Importantly, the district court found that the new Louisiana requirement would result in the closure of all but one clinic in the state, which would leave many women without access to any services.

There is no factual uncertainty about the consequences of holding the proposed Louisiana law constitutional: Women would suffer lack of access to abortion services. Yet the state argues there is another way to understand the proposed law by presenting a pretextual claim that admitting privileges are safer for women. Treating the state’s argument as a legitimate claim against the reality that women will lose services sets the two sides in opposition to each other as arguments that should be given equal weight. However, the two opposing sides are arguing over different sets of facts. The state draws on the purported expertise of legislators, while the abortion providers challenging the law draw on the facts generated in prior proceedings by experts. This discrepancy raises questions about where facts should be generated (if you believe the state is even offering a legitimate set of facts) and how they should be treated by the Supreme Court. These two questions have come to haunt abortion jurisprudence, as pretextual factual claims – generated by opponents of abortion with no basis – have been treated by the Supreme Court and lower courts as on par with medical expertise (as I’ve written about here). This has the effect of courts’ legitimating the ideas being generated by conservative groups.

For the conservative justices, particularly Justice Clarence Thomas, the decision in Whole Woman’s Health undermined the deference Gonzales v. Carhart paid to legislatures in their determination of when to impose a legal intervention in the context of medical uncertainty. Gonzales involved a ban on an abortion procedure done later in pregnancy called an intact dilation and extraction. Access to the procedure would help protect women from a series of health risks associated with a non-intact dilation and extraction. In reviewing the ban, the Supreme Court faced a similar set of questions about how facts might be generated and whether courts should defer to legislative decisions.

Overturning its prior holding in Stenberg v. Carhart, the court stated that questions of medical uncertainty generated by facts asserted to the legislature and in lower courts leave broad discretion for lawmaking. (In Stenberg they had arrived at the opposite conclusion – that courts confronted with medical uncertainty should err toward ensuring the health exception “if there is substantial medical authority” supporting “the proposition that banning a particular procedure could endanger women’s health.”) In Gonzales, the court stated that there should be deference to the legislature’s ability to consider “marginal safety, including the balance of risks” as “within legislative competence when the regulation is rational and in pursuit of legitimate ends.” The Supreme Court revisited this issue in Whole Woman’s Health, holding that courts should not rely uncritically on legislative findings (and noting that the Texas legislature did not actually provide a set of factual findings in the case of the challenged law). Importantly, the majority in Whole Woman’s Health emphasized that even Gonzales, in which legislative facts had been presented and whose outcome claimed to defer to the legislature, pointed out that “the ‘Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.’ … (emphasis added).” (For a historical review of the treatment of medical uncertainty in abortion jurisprudence, see Mary Ziegler’s recent article here.)

As I’ve previously noted, although it is tempting to delineate clear institutional roles for the courts and legislatures with regard to the impact of particular regulations, it is helpful to take a step back and note how discussions of institutional deference themselves code the political leanings of the court. If, for example, the Supreme Court holds the admitting-privileges law in June Medical Services constitutional, it will likely do so by claiming the need to allow room for legislative rulemaking. Or it could follow Whole Woman’s Health and ensure that the findings of the district court contribute to a robust analysis of the burdens that women will face. The institutional role the justices see for both themselves and state legislatures – contingent on the facts of this particular case – will be less a statement about the appropriate way to understand how courts and legislatures should operate in relation to one another and more an attempt to legitimate particular factual claims about the impact of the Louisiana law.