Los Angeles v. Patel was not a particularly closely watched decision this Supreme Court term, although Justice Sonia Sotomayor’s opinion for the Court may prove to be one of the seminal precedents civil libertarians cite to ward off government invasions of personal privacy. The most surprising aspect of Sotomayor’s opinion, however, is that it may also give a boost to abortion clinics that are fighting for their life in states such as Texas. Sotomayor — in an opinion joined by Justice Anthony Kennedy, the one justice pro-choice groups typically must sway to win a case in the Supreme Court — includes language in her Patel opinion that is inconsistent with a recent lower court opinion upholding Texas’s efforts to restrict access to abortion.
Patel concerns a Los Angeles ordinance that requires hotel operators to keep certain records, such as the names and addresses of their guests, and which provides that those records “shall be made available to any officer of the Los Angeles Police Department for inspection.” Hotel operators who refuse to do so face up to six months in jail and a $1,000 fine. The Court, in a 5–4 decision that includes the four left-of-center justices plus Kennedy, holds that this ordinance violates the Fourth Amendment’s safeguards against unreasonable searches and seizures because it does not afford these hotel operators “an opportunity to obtain precompliance review before a neutral decisionmaker.”
The most significant aspect of Sotomayor’s opinion, however, is the Court’s holding that the plaintiffs in this case may bring what is known as a “facial” challenge to the Los Angeles ordinance. Generally speaking, facial challenges seek to invalidate a law altogether, while less potent “as-applied” challenges merely seek a decision holding that a particular law cannot be applied to a particular plaintiff or plaintiffs. Prior to Patel, the Court’s precedents were not especially clear regarding when facial challenges are appropriate, and one seminal case indicated that, to bring such a challenge, “the challenger must establish that no set of circumstances exists under which the Act would be valid.”
Patel clarifies this rule, and it relies on one of the Court’s most important abortion decisions to do so. When assessing if a facial challenge is proper, Sotomayor explains, “the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct.” Thus, in Planned Parenthood v. Casey, the only major abortion case where Justice Kennedy cast a pro choice vote,
the Court struck down a provision of Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The “[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”
This bolded language matters for the plaintiffs challenging the Texas abortion law because it could have been written as a direct rebuttal to a decision by three George W. Bush-appointed judges — who recently handed down a lower court decision that, should its reasoning be adopted by the Supreme Court, would render Roe v. Wade little more than an empty shell. That decision, by a panel of the United States Court of Appeals for the Fifth Circuit, offered a bevy of bad news to supporters of abortion rights. One aspect of the decision that cuts particularly deep into the right to choose, however, was the Fifth Circuit’s holding that facial challenges can almost never be brought against anti-abortion laws.
The Fifth Circuit held that a facial challenge to Texas’s anti-abortion laws is not appropriate because there are still many women in Texas who were not affected by the Texas law. Though “approximately 900,000 women of reproductive age would face travel distances of more than 150 miles” before they could reach an abortion clinic once the Texas law took full effect, “there were approximately 5.4 million women of reproductive age in Texas.” Thus, the Fifth Circuit reasoned, only 17 percent of reproductive age women in Texas would be forced to travel great distances to obtain an abortion, and that wasn’t enough to allow a facial challenge.
Justice Sotomayor’s opinion in Patel repudiates this analysis by the Fifth Circuit. If “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant,” as the Court held in Patel, then the Fifth Circuit erred by focusing on how certain aspects of Texas’s law would influence women that they do not impact.
Of course, it is important not to overread the significance of Patel for abortion cases. The Fifth Circuit’s opinion was a kind of omnishambles for abortion rights, seeking to limit reproductive choice in many ways that Patel will not impact. Nor is the fact that Kennedy joined Sotomayor’s opinion a sure sign that he will vote to strike down the Texas law.
But Patel is a good sign that a majority of the Court isn’t willing to go quite as was as the Fifth Circuit went in limiting abortion rights. And it is also a potential sign that Sotomayor and some of her colleagues are trying to lay the groundwork for a decision reversing the Fifth Circuit.