[also published on Balkinization]
The Fifth Circuit decision in Whole Women’s Health v. Cole upholding Texas’ law requiring all abortions, including medication abortions, to be performed in a licensed ambulatory surgical center (ASC) by doctors with admitting privileges at nearby hospitals seems outrageous on several counts. It defies a medical consensus that abortions performed in physician’s offices or licensed outpatient clinics are exceptionally safe. With the risk of death less than 1% nationally and even lower in Texas, first trimester and many early second trimester abortions simply do not need the extensive sterility precautions and other operating room requirements needed for more invasive procedures. Indeed, colonoscopies, which have a higher morbidity and mortality rate, are permitted in non-ASC settings.
Nor does the admitting privilege requirement appreciably add to safety. With hospitalists currently taking over care of most patients admitted to hospitals, the same doctor often does not provide both outpatient and hospital-based care, and emergency room doctors are trained to respond to any emergency. Nor are admitting privileges necessarily an indication of a doctor’s clinical competence. They are denied or awarded on many grounds unrelated to competency, i.e., likely frequency of future admissions, and thus do not usually impact the quality of outpatient care.
The law also severely limits access. Two years ago there were 25 abortion clinics, now there will be seven. This will make it much harder for women not close to large cities to obtain abortions early in pregnancy. Travel of 150 miles each way will be especially burdensome for poorer and immigrant women, and may lead them to seek unsafe internet drugs or use risky non-medical procedures.
With the scientific basis for the ASC and admitting privilege laws so slim and the effect on women so great, one is tempted to view these laws as a cynical attempt to stop abortions while clothing the effort as one of health-protection. With abortion legal and an undue burden test for assessing such regulations, how can the Fifth Circuit justify its decision upholding the law?
Its opinion illustrates the conflict that has now emerged in several circuits about how to apply Casey v. Planned Parenthood’s undue burden test: whether “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” After Gonzales v. Carhart (the case upholding a federal ban on partial birth abortion), the analysis has proceeded by first asking whether there is a rational basis for the state’s action (under the loose, hands-off posture of Williamson v Lee Optical there almost always is), and if so, whether pursuing that goal imposes an undue burden on women’s access to abortion.
The purpose prong of undue burden is rarely a barrier. With the rational basis test so easily met, then it is exceedingly hard to show that the legislature choose the law for invidious reasons. Indeed, in Whole Women’s Health the 5th circuit found that plaintiffs’ rested their argument on an incorrect claim that existing abortion facilities were not grandfathered as were other outpatient facilities, and on anecdotal reports of statements from a few legislators. The court easily concluded that the plaintiffs’ had not provided competent evidence contradicting the legislature’s statement of a legitimate health purpose for the law.
Turning to the effects claim, the court focused solely on the extent of travel that the new requirements posed. Unlike the 7th and 9th circuits, it rejected the argument that the courts should assess how much the regulation promotes the claimed health interest in light of the extent of the burdens imposed on women. The 4th, 6th, and 8th circuits have also rejected a balancing test. This circuit split identifies the crucial issue in post-Casey abortion regulation cases: should the courts determine whether the state’s law is “necessary” to achieve an important state purpose, or is just “rationally related.” As the 5th Circuit decision shows, the outcome of the case will turn on whether the undue burden test permits such balancing. Only the Supreme Court can decide that question, and this may be the case they use for that purpose.
Thus in Whole Women’s Health, the court looked only at the extent of the travel burden, and not on whether imposing that burden to gain the very slight health benefits at stake was justified. On its view the key question in a facial attack on the statute was whether a large fraction of women affected by the law would incur significant travel burdens. Citing Casey’s acceptance of 150 mile travel to comply with a 24 hour wait as not an undue burden, it found that only 17% of Texas women of reproductive age (and thus who might need an abortion) would have to travel farther than 150 miles each way. With uncertainty about whether Casey required that a facial attack affected 100% of women or only “a large fraction,” it held that 17% was not a large fraction of 100%, and thus denied facial relief. It did uphold an as-applied attack for the McAllen clinic, because women would have had to travel 220 miles each way for an abortion.
So what should the Supreme Court do in these cases? If it adopts the 5th Circuit’s narrow view of undue burden, many thinly veiled claims of health protection will be upheld and fewer women will get abortions. On the other hand, balancing the impact on women with the slightness of health protection would seem much more faithful to the Court’s concern that burdens not be “undue.” Many people find it laughable that a significant travel burden (150 miles each way for a medication or first trimester suction abortion) is not “undue” despite the well-recognized safety of early office or clinic abortions. Indeed, Casey stated that reasonable regulations must be “necessary,” to be upheld. Surely “necessary” must mean something greater than anything that conceivably advances a health goal, no matter how minor nor at what cost to affected women.
So we are at another inflection point in abortion law. The basic right to terminate pregnancy is not challenged in these cases. Rather, they concern whether states may nevertheless restrict abortions by imposing health regulations that advance health very little but prevent or greatly burden a significant number of women affected by the regulation from accessing abortion. It is time for the Supreme Court to clarify the “undue burden” test.