[Ed. Note: Cross-posted from Reproductive Rights Prof Blog]
Today, U.S. District Judge Myron Thompson issued a decision – following a 10-day bench trial – declaring unconstitutional Alabama’s admitting privileges requirement for abortion providers. The decision is remarkable in at least two respects. First, Judge Thompson employs a brilliant interpretation of Planned Parenthood v. Casey that is different from any lower court opinion I have seen and yet that is well-grounded in the decision. (He had already laid out this framework in an earlier ruling on summary judgment.) It resolves a longstanding puzzle about the undue burden standard, namely whether and how a court should factor in the state’s burden of justification for an abortion restriction when it conducts an undue burden analysis. Judge Thompson focuses in on a little-noticed aspect of Casey, namely its reliance on ballot-access case law. The Casey joint opinion analogizes to the states’ “substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote,” in order to explain why “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.” Yet, in describing the state’s power to regulate elections as “similar” to its power to regulate abortion, the Court suggests that its analysis in the ballot access cases is instructive in the abortion context.
Judge Thompson takes up this suggestion. He points out that, in the specific cases that the Casey joint opinion cites, the Court looked at whether the state’s interest in the election regulation was “sufficiently weighty” to justify the restriction it imposed. In Anderson v. Celebrezze, for example, the Court explained that, when analyzing constitutional challenges to specific provisions of a state’s election laws, the Court
must first consider the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
Judge Thompson applies this framework, first analyzing the burden that Alabama’s admitting privileges requirement would impose on abortion access in the state. Finding that the burden would be substantial, he then closely examines the state’s purported justifications for the law and concludes that they are “exceedingly weak.”
Planned Parenthood v. Casey holds that a law is unconstitutional if it has either the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” But the “purpose prong” of this test has been under-utilized, particularly after the Supreme Court’s 1997 per curiam decision in Mazurek v. Armstrong. Given the brazenness of recent state attempts to eliminate abortion access under the guise of protecting women’s health, courts have shown renewed interest in examining the justifications for these laws. I have argued, as have others, that such examination of the states’ purposes is critical. Judge Thompson’s opinion offers a logical path for courts to do this, following a model that Casey itself endorses.
The second remarkable aspect of Judge Thompson’s opinion is his keen awareness of and compassion for what it is like to be an abortion provider amid a climate of hostility, violence, and professional risks and hurdles. Judge Thompson opens his factual background section with this discussion, remarking, “[T]his court cannot overlook the backdrop to this case: a history of severe violence against abortion providers in Alabama and the surrounding region.” These facts are relevant to the court’s conclusion that the admitting privileges requirement would heavily limit abortion access. Were the law to take effect and thereby eliminate abortion services in Mobile, Birmingham, and Montgomery – as the judge concludes it would – there are “very good reasons to expect that no one would step in to provide abortion services.”
Judge Thompson’s approach to evaluating admitting privileges laws – and other abortion restrictions – under the undue burden standard makes sense, relies on an established framework for balancing a state’s justification for a law with that law’s burden on certain constitutional rights, and is well-supported by the Casey opinion. It should provide a useful template for courts evaluating the latest wave of abortion regulations.