On Tuesday, a panel of three George W. Bush-appointed judges handed down a sweeping endorsement of the tactics anti-abortion lawmakers adopted in recent years in an effort to prevent abortion clinics from operating. With one narrow exception, the United States Court of Appeals for the Fifth Circuit’s decision in Whole Woman’s Health v. Cole is a total defeat for abortion providers who hoped to overcome a Texas law that will shut down most of the state’s abortion clinics. Worse for women seeking an abortion, the Fifth Circuit’s opinion would give many other states broad discretion to restrict access to abortion if its reasoning is ultimately adopted by the Supreme Court.
In 2013, Texas enacted HB2, which is one of a number of sham health laws passed by anti-abortion lawmakers who believe that they found a loophole in the Supreme Court’s abortion cases. Though current Supreme Court precedent forbids laws that impose an “undue burden” on the right to choose, states may enact legitimate health regulations that govern abortion providers — and for good reason. Abortion facilities, just like any other medical facility, should be sanitary, safe and operated by competent medical personnel.
HB2 is crafted to appear like a health regulation, even though it does little to actually advance the public health. The two provisions challenged in Whole Woman’s Health include a requirement that abortion doctors have admitting privileges in a nearby hospital, and a list of expensive architectural and other requirements that abortion clinics must comply with in order to operate. There is little evidence, however, that either provision actually advances the goal of making abortion safer for women. To the contrary, a federal district judge determined that “there is no rational relationship between improved patient outcomes and hospital admitting privileges,” and he reached similar conclusions with respect to the portions of the law regulating clinic facilities.
Before HB2, Texas had 40 licensed abortion clinics. If the law takes full effect, “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.” This reduced access to abortion, according to the same district judge, “almost certainly cancel[s] out any potential health benefit associated with” HB2 because of “[h]igher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions.”
The Fifth Circuit’s decision disagreeing with this district judge is 56 pages long, and it touches upon a number of procedural topics while also laying out a brief history of the Supreme Court’s abortion jurisprudence. One aspect of the court’s analysis is particularly significant, however, because it could effectively render what remains of Roe v. Wade a dead letter, at least in the context of facial legal challenges.
Generally speaking, constitutional challenges can take two forms. A “facial” challenge seeks to invalidate a law entirely; while an “as-applied” change merely argues that the law cannot be applied to a particular plaintiff or plaintiffs. The Whole Woman’s Health opinion claims that a 2007 Supreme Court decision absolutely devastates future plaintiffs’ ability to challenge abortion bans disguised as sham health laws.
Gonzales v. Carhart is often quoted with disgust by reproductive health advocates, in large part because of its suggestion that the right to choose must be narrowed because “some women come to regret their choice to abort the infant life they once created and sustained.” The Fifth Circuit, however, hones in on Gonzales’s devil-may-care attitude towards medical judgment.
As Tara Culp-Ressler and I explained in a lengthy account of how the Supreme Court has chipped away at Roe,
Gonzales upheld a ban on a procedure known as “intact dilation and extraction,” which many physicians believe is the safest way to terminate a pregnancy in certain cases. Beginning with Roe, the Court was reluctant to allow policymakers to second-guess a doctor’s medical judgment. This is why Roe held that during the first trimester “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician,” and it is also why Roe established that abortions must be allowed even in the late stages of pregnancy “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Kennedy’s opinion in Gonzales, however, gives lawmakers “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The upshot is that the question of how to protect a woman’s health during an abortion is no longer left entirely to her doctor — much of it is now left to members of Congress or state lawmakers who are free to resolve “uncertainty” among physicians in favor of their personal policy preferences.
Gonzales was concerned with what the current state of medical research had to say about a particular medical procedure, while Whole Woman’s Health concerns the distinct question of whether a particular set of regulations actually serves women’s health, so it is not at all clear that the prior case should dictate the result in the latter. Nevertheless, the Fifth Circuit takes Gonzales’s conclusion about the legislature’s discretion when medical “uncertainty” exists and runs with it — holding that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts” even when a sham health law such as HB2 is challenged.
The upshot is that a state can defeat a facial challenge to an anti-abortion law so long as it raises enough of a smokescreen suggesting that its impact on women’s health is uncertain.
The one ray of light for women seeking abortions in the Fifth Circuit’s opinion is the court’s decision that a single abortion clinic, Whole Woman’s Health in McAllen, Texas, may continue to operate despite the law. This ray of light is very thin, however, as the court’s opinion suggests that judges should only exempt abortion providers from anti-abortion laws in very narrow circumstances. Among other things, the court highlights the fact that, when several doctors who perform abortions at this clinic sought admitting privileges at a nearby hospital, they were denied these privileges and simultaneously told that the denial “was not based on clinical competence.” This suggests that the court will be much less likely to grant an exemption to laws such as HB2 when there isn’t significant evidence that abortion providers are being treated arbitrarily.
This case will almost certainly be appealed to the Supreme Court, where the fate of the law will likely rest with the author of Gonzales v. Carhart, Justice Anthony Kennedy.