A Jurisprudence of Doubt & Undue Burdens: Why Deciding Not To Decide in Whole Woman’s Health Would Be A Mistake
During the argument in Whole Woman’s Health v. Hellerstedt, Justice Kennedy showed some interest in deciding not to decide whether Texas’s HB2 is constitutional. While the Supreme Court often has good reasons to put off major constitutional decisions until it finds a perfect case with a perfect record, doing so in Whole Woman’s Health would be a mistake.
At several points in Wednesday’s argument, Justice Kennedy seemed to be interested in finding a way not to decide the constitutionality of Texas’s HB2. His first question on the merits was about the possibility of “remand[ing] for further findings on clinic capacity.” Tr. 14:23-15:2. In the same exchange, Justice Kennedy suggested that there might be some “evidence” to be found on the “capacity and … capability … to build” new ambulatory surgical centers (HB2 requires all abortion providers to meet the requirements of an ambulatory surgical center). Tr. 15:9-17. And during an exchange with the Solicitor General, Justice Kennedy asked whether the district court could “stay” HB2 “for two-and-a-half, three years, to see if the capacity problem can be cured.” Tr. 31:3-8.
There are often reasons for the Supreme Court to go slow—to wait for the ideal case, or to look for a minimalist route in the cases it already has. Sometimes the Court will do this by sending a case back to the district court to collect additional facts; other times it will send a case back to the court of appeals to “redecide” a question without saying anything new about the law.
But deciding not to decide HB2’s constitutionality in Whole Woman’s Health would be a mistake. Doing so would create substantial uncertainty—and accompanying burdens—for women in Texas. It would also contribute to uncertainty—and accompanying burdens—elsewhere. Several other States have recently enacted admitting privileges requirements similar to Texas’s, as well as ambulatory surgical center requirements. Some of these laws have been enjoined, but others have not. And if the Supreme Court does not use Whole Woman’s Health as an opportunity to debunk the Fifth Circuit’s account of the undue burden standard, litigants will have to rely on piecemeal, emergency litigation at the Supreme Court to ensure that these laws do not result in anything more than temporary clinic closures.
The problem is not just that this will happen; it’s that all of it is unwarranted. As Justice Kennedy’s questioning at argument recognized, “the undue-burden . . . is weighed against what the State’s interest is.” Tr. 52:7-9. And the argument on Wednesday showed there is no real benefit to either the admitting privileges requirement, or the ambulatory surgical center requirement. Whatever burdens these regulations impose are therefore undue. There will always be some uncertainty in any record, especially when it comes to estimating the number of women who may decide to end their pregnancies—pregnancies which do not yet exist—at some indefinite point in the future. The Court should not use this uncertainty, or whatever uncertainty there may be about the exact burden HB2 imposes as a reason to avoid saying what the record already shows, and what everyone already knows to be true: The burden imposed by HB2 is undue, and the Fifth Circuit’s approach to the undue burden standard is plainly inconsistent with the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.
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Burdens in Texas. Let’s assume the Supreme Court vacates the Fifth Circuit’s opinion and sends the case back for the district court to collect some additional facts. In that world, HB2 wouldn’t be invalid. The two provisions being challenged were written to take effect in 2013 and 2014. And Texas could seek to enforce the law while it’s still being challenged. The challengers could seek a preliminary injunction (again), but they would need to seek (and obtain) one pretty darn quickly. (They would also need to ensure that the Fifth Circuit doesn’t reverse any preliminary injunction they do obtain, but that’s another question.) Clinics and doctors who perform abortions before an injunction against HB2’s enforcement would be in violation of the law.
That means there would be some period of time during which all of the currently licensed abortion providers would be shut down. How do we know this? It’s what happened when the Fifth Circuit allowed both of HB2’s requirements to largely go into effect. Until the Supreme Court “stayed” that decision, all of the currently licensed abortion providers shut down. (Justice Kagan mentioned this at argument: “[I]n the two-week period that the ASC requirement was in effect … over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately.” Tr. 14:7-11.)
Patients would thus be in limbo until the district court decides whether to preliminarily enjoin HB2. The same would be true for the clinics. Maybe the clinics that are not in compliance with HB2 would choose to shut down only temporarily. That is, it’s possible they would choose to keep paying for the land, the facilities, the state licensing fees, the doctors, the nurses, and the other staff in the hope that the district court (and then the court of appeals and then the Supreme Court) finds HB2 constitutional or at least preliminarily enjoins its enforcement. But maybe they won’t. It’s a risk; the question the Court should ask is whether it’s a risk worth taking.
Burdens Elsewhere. The uncertainty—and accompanying burdens—also wouldn’t be limited to Texas. As New York and other States noted in the amicus brief they filed in support of certiorari, several States have admitting privileges requirements. Over half of those States enacted the requirements within the last five years. Many of the requirements have been challenged or are currently subject to challenge. (Justice Breyer invoked a decision authored by Judge Posner that found Wisconsin’s admitting privilege requirement unconstitutional; there have been similar decisions from district courts about the validity of Alabama’s admitting privileges requirement, as well as Louisiana’s.)
The Supreme Court currently has before it several challenges to these laws. For example, the Court is currently holding a petition for certiorari from a decision granting a preliminary injunction against Mississippi’s admitting privileges requirement. The plaintiff in that case argued that Mississippi’s law would have closed the only abortion clinic in the state. The Supreme Court also has before it a petition for an emergency stay of a Fifth Circuit decision that allowed Louisiana’s admitting privileges requirement to go into effect. The plaintiffs in that case argued that the decision would allow only one physician in Louisiana to continue performing abortions.
Resolving the constitutionality of HB2 wouldn’t necessarily resolve the constitutionality of other, similar laws. But a decision that opted not to decide the constitutionality of HB2 would resolve even less. And some litigation is on hold in anticipation of a decision in Whole Woman’s Health— States, courts, doctors, patients, and clinics are waiting for the Supreme Court to make a decision.
However, if the Court chooses to remand Whole Woman’s Health back to the district court for additional fact finding, it could still provide some guidance on how courts should be analyzing undue burden claims. Specifically, it could opt to reject the Fifth Circuit’s silly account of the undue burden standard. The current law in the Fifth Circuit seems to be the following: A restriction on abortion is not unconstitutional if some number of “women … live within 150 miles” of a clinic. (Citing its prior decisions on HB2, the Fifth Circuit gave this as a reason for why Louisiana’s admitting privileges requirement could go into effect.) And, the Fifth Circuit maintains, courts do not weigh a state’s interest—and perform anything other than minimal (i.e., toothless) rational-basis review of whether a law furthers the state’s purpose—in assessing whether a burden is undue.
If the Court doesn’t reject the Fifth Circuit’s approach to the undue burden standard, the clinics will close. The only question is for how long. Based on its understanding of the undue burden standard, the Fifth Circuit allowed Louisiana’s law to go into effect before there was a final decision on whether the law was constitutional. Ordinarily that’s fine, but in the case of restrictions that result in clinic closures there’s a problem: There is no guarantee that the clinics will reopen in the event of a favorable ruling—at some unknown point in the future—from the district court. Moreover, even if the district court finds these restrictions unconstitutional, who knows if the Fifth Circuit would allow the district court’s decision to be enforced? When the district court found the ambulatory surgical center and admitting privileges requirements unconstitutional, the Fifth Circuit, relying on its odd account of the undue-burden standard, “stayed” the district court’s decision. The Fifth Circuit’s decision allowed HB2 to go to into effect, and that decision closed the remaining clinics. The clinics were only able to reopen when they obtained emergency relief from the Supreme Court—relief the Court granted 12 days after the Fifth Circuit’s decision.
The Supreme Court could, of course, continue fielding claims for emergency relief to ensure these clinics do not disappear before the Court weighs in on the restrictions’ constitutionality. Or the Supreme Court could disabuse the Fifth Circuit of its facially implausible account of the undue burden standard at the same time that it remands the case to the district court for additional fact-finding. Doing so would not only ward off a series of claims for emergency relief; it would also provide guidance to the courts and litigants that are waiting in the wings for a decision in Whole Woman’s Health.
Undue Burdens. Finally, some of the Justices seemed concerned with what wasn’t in the record—specifically evidence about the capacity of the existing ambulatory surgical centers (or the hypothetical ambulatory surgical centers that do not yet exist) to meet the state-wide demand for abortion services. For example, Justice Alito noted that one of the co-counsel in Whole Women’s Health—David Brown (a Michigan classmate—Go Blue!)—who is “litigating a case like this in Louisiana … put in evidence about the exact number of abortions that were performed in all of the facilities.” Tr. 16:19-17:1. The Justices also raised the possibility that new ambulatory surgical centers could be built to meet the state-wide demand for abortion services. Immediately after Justice Kennedy suggested the district court could stay HB2 for 2-3 years to see if new facilities would be constructed, Justice Alito noted that “the number of ambulatory surgical centers performing abortion has increased by 50 percent since this law went into effect.” Tr. 16:2-5.
The questions reveal some uncertainty about the precise burden HB2 imposes. But the ultimate question in the case is whether the burden--that is, the burden the existing evidence establishes--is undue, not whether some additional evidence could conceivably speak to the extent of the burden.
For example, with respect to clinic capacity, there was expert testimony that the ambulatory surgical centers could not meet the existing state-wide demand for abortion services. That testimony was based on data about the percentage of abortions that are performed at ASCs, which would be the only remaining clinics if HB2 went into effect. ASCs perform roughly 20% of abortions; if HB2 goes into effect they would therefore have to quadruple their capacity. It’s not clear how that burden would be more or less undue based on the number of abortions each ASC performs individually.
The limited capacity of the ASCs is also only part of the burden imposed by HB2. Travel distances are another. Here too, the district court, based on expert testimony, made factual findings about the number and percentage of women who would be more than 50, 100, 150, and 200 miles from abortion clinics. The Fifth Circuit did not set aside those findings, which were:
The number of women of reproductive age living in a county more than 50 miles from a Texas abortion clinic has increased from approximately 800,000 to over 1.6 million; women living in a county more than 100 miles from a provider increased from approximately 400,000 to 1,000,000; women living in a county more than 150 miles from a provider increased from approximately 86,000 to 400,000; and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000. If not enjoined, the ambulatory-surgical-center requirement will further increase those numbers: after September 1, 2014, approximately 2 million women will live further than 50 miles, 1.3 million further than 100 miles, 900,000 further than 150 miles, and 750,000 further than 200 miles.
(These numbers did not include the limited as-applied relief given to the McAllen clinic, or account for clinics located in New Mexico, which, for reasons Justice Ginsburg explained, make no sense to include.) The travel differences are significant in part because of something Justice Sotomayor was surprised to learn at argument: Texas requires women who receive medical abortions to take the medicine that induces an abortion at an approved facility. See Tr. 20:22-25 (“MS. TOTI: Under Texas law, she must take them at the facility . . . JUSTICE SOTOMAYOR: I’m sorry. What?”) Medical abortions involve taking different pills on different days, and so women must go to a facility twice in order to obtain a medical abortion. There was also additional evidence about the burden imposed by HB2.
The question is therefore whether this evidence established an undue burden. As Justice Kennedy’s questioning at argument recognized, “the undue-burden . . . is weighed against what the State’s interest is.” Tr. 52:7-9. He’s right, and that makes the additional evidence about the extent of HB2’s burden a little less relevant because, as argument revealed, there is precious little (if any) evidence that either the admitting privileges requirement or the ambulatory surgical center requirement advance the state’s purported interest in promoting women’s health. With respect to the admitting privileges requirement, I’ll just quote Justice Breyer:
JUSTICE BREYER: . . . Prior to [the admitting privileges requirement], the law was that the clinic had to have a working arrangement to transfer such a patient, correct? . . . Okay. So I want to know …. [w]here in the record will I find evidence of women who had complications, who could not get to a hospital, even though there was a working arrangement for admission . . . . ?
MR. KELLER: Justice Breyer, that is not in the record.
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JUSTICE BREYER: . . . Judge Posner then seems to be correct where he says he could find in the entire nation, in his opinion, only one arguable example of such a thing, and he’s not even sure that even that one is correct. So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one, but not in Texas?
And with respect to the ambulatory surgical center requirement, Justice Ginsburg:
JUSTICE GINSBURG: And — and just it’s — I can’t imagine. What is the benefit of having a woman taken those pills in an ambulatory surgical center when there is no surgery involved?
Or Justice Kagan:
JUSTICE KAGAN: . . . [T]he assumption of the question, and I think you haven’t challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And . . . you’re saying, that’s okay, we get to set much higher standards for abortion. And I just want to know why that is.
Or Justice Sotomayor:
JUSTICE SOTOMAYOR: What happened in Texas . . . that made the legislature so concerned after so many years about taking care of this greater risk in abortions, as opposed to all the other procedures that are performed in non-ASC facilities?
The evidence, in other words, is in: HB2’s requirements do not meaningfully advance women’s health. Every serious medical organization agrees on that point. And HB2 imposes burdens that are significant even if they are not quantified to the one-tenth-of-one-thousandth of a percent. That is enough to hold them invalid.
That is especially true given that there is always going to be some kind of uncertainty about the record. There will always be some uncertainty when the question is how many—and which—women might decide to end pregnancies that do not yet exist, and which of those women—who cannot be identified ex ante—would be unduly burdened by the travel, costs, and uncertainties that are created by clinic closures. The record in the Louisiana case is good. Unsurprisingly, however, the Fifth Circuit and Louisiana have some complaints about it: The Fifth Circuit discounted evidence of the burden imposed by the law because it did “not actually measure the effects of the law.” The Fifth Circuit suggested one of the providers closed a practice “from his own choice rather than the Act.” And the Fifth Circuit faulted the plaintiffs for not introducing “expert testimony to support” the district court’s calculation of the percentage of women who would lack abortion access. Louisiana echoes these complaints in its brief to the Supreme Court. As Lyle Denniston summarized the briefing "The two [briefs] sharply dispute what is at issue, and what the real-world impact on access to abortions in the state will be." There will never be a perfect record. But there also is no rule that expert witnesses and fact finders may not make inferences in constitutional challenges to abortion restrictions. See Planned Parenthood of Wisconsin, Inc. v. Schimel("[O]ne wouldn't think it necessary to parade evidence that the remaining clinics would find it extremely difficult to quadruple their capacity to provide abortions.").
Two final points. One, Justice Alito suggested that some ambulatory surgical centers might open in order to meet the state-wide demand for abortion services. As Michael Dorf has explained, that might happen. There's no evidence that it will. And the question is whether requiring any new clinic to meet the requirements of an ambulatory surgical center would be warranted. As the Solicitor General noted, the burdens imposed by the ASC requirement are substantial:
There’s expert testimony in the record from Dr. Layne-Farrar, the economist, that the cost of retrofitting these clinics to meet the requirements would be between 1.6 and 2.3 million dollars, which would be prohibitive; that the cost of building a new facility would be at least 3.5 million dollars, which would be prohibitive; and that the additional operating cost of an ASC would be between 600,000 and a million dollars a year more.
In light of the evidence that requiring abortions to be performed at ASCs do not reasonably advance the State's interest in promoting women's health, these burdens are unwarranted.
Finally, there was a suggestion that some women could simply bring as applied challenges should they have difficulty making an appointment or finding an abortion clinic. That argument makes little sense because when a clinic closes, it’s gone. If, five years from now, a woman has difficulty finding a nearby clinic, she cannot challenge HB2 and will the clinic that used to exist back into existence. Sure, as Justice Alito and General Keller noted, some of the clinics that closed as a result of HB2 eventually reopened. But they were closed for a mere 12 days, between the time the Fifth Circuit would have allowed HB2 to go into effect and the time the Supreme Court stayed its decision. That probably wouldn't happen if a clinic has been closed for ten years: The clinic would not keep the facility and the staff on hand in the event that, ten years down the road, a woman had difficulty obtaining an abortion and a court would allow the clinic to provide her one.
Again, Justice Ginsburg:
JUSTICE GINSBURG: As-applied challenge is a real problem . . . because suppose you bring in that as-applied challenge and you’re successful. You can’t have a creation of an ambulatory surgical center on the spot. I mean, . . . once these facilities are closed, they’re closed, and they can’t start up tomorrow.
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Twenty-five years ago, the authors of the joint opinion in Casey clarified the legal standard that governs challenges to abortion restrictions. They did so in part because they understood that “Liberty finds no refuge in a jurisprudence of doubt.” That is the same reason why the Court should reject the Fifth Circuit’s silly and toothless understanding of the undue burden standard, even if the Court ultimately remands Whole Woman’s Health for further fact-finding. Reaffirming Casey—and rejecting the Fifth Circuit’s claim that restrictions on abortion need only satisfy rational-basis review—is the way to avoid the uncertainty and accompanying burdens that would result from a series of indefinite clinic closures and scrambles for emergency relief. Reaffirming Casey is also the way to put to rest another question raised by Whole Woman's Health—whether a woman’s right to decide whether to carry her pregnancy to term is a right that will continue to exist in the real world for real women.
Leah M. Litman was on the briefs for Whole Woman’s Health in Whole Woman’s Health v. Hellerstedt.