[cross-posted at Prawfsblawg]
By Jessie Hill
Several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.)
The plaintiffs in Whole Women’s Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden.
First, they will close three quarters of the abortion clinics in Texas, reducing the number from 40 to 10. The law would therefore drastically reduce abortion access for women in Texas, essentially making the procedure completely unavailable for a large swath of Texas residents. The problem would be particularly acute in the Rio Grande Valley, which is a largely impoverished area that would be left without any abortion provider at all (indeed, a recent study listed two metropolitan areas in the Rio Grande Valley as the two poorest cities in the country).
Although the undue burden standard is notoriously amorphous, there seems to be good argument that a requirement that closes so many clinics and reduces access so dramatically– in practical terms eliminating the right to seek an abortion for a large number of women — would have to constitute an undue burden. In other words, if anything is an undue burden, this is.
At the same time, this theory raises the question of just how many clinic closings is too many. There is no easy answer to that question. If a state enacted a law that would have the effect of closing every clinic in the state, it would seem to constitute a clear undue burden for women in that state. But how close to that line can a state come without violating the undue burden standard? Moreover, what if the clinics were being closed because they were all being operated by incompetent physicians, or because they were unsanitary? (That is emphatically not the case here, but I pose that hypothetical because it raises the question of whether undue burden can be judged based on the impact on access alone.)
That’s the first argument. The second argument is related. It says that the Texas law imposes an undue burden because it dramatically reduces abortion access without having a similarly significant health benefit to women in Texas. The state justifies the ASC and admitting privileges requirements as measures that protect health and safety. Yet, there is no evidence whatsoever that these requirements actually do advance any health or safety interest. So, the plaintiffs argue, the burden on abortion is “undue” because it has little positive impact in advancing the state’s purported interest while imposing a heavy burden on abortion access. In other words, in determining whether a burden is “undue,” courts should weigh the effect on abortion access against the extent to which the restriction actually advances a legitimate state interest.
The circuits are currently split on whether to engage in this sort of balancing test. As the plaintiffs’ cert petition notes, the Seventh and Ninth Circuits hold that this sort of balancing is required by the undue burden test, whereas the Fifth and perhaps Sixth Circuits have rejected it.
Again, it seems the plaintiffs have a very strong argument here. The balancing-test model makes sense of the hypothetical I presented above, in which the state’s clinics were being closed due to real, rather than unsubstantiated, health and safety concerns. In addition, if the undue-burden test doesn’t take the legitimacy of the state’s interest or the mean-end fit into account, then it starts to look a lot like a rational-basis standard of review, according to which any asserted state interest in health and safety, no matter how pretextual, is permitted to justify closing of clinics, as long as it doesn’t close all, or virtually all of the clinics.
So, that’s the big-picture overview of the legal claims in the case. In my second (and final) post on this case, I’ll do a brief evaluation of the likelihood that the Court will take the case and how it might decide it.