At the core of the most important Supreme Court abortion case in a generation is a series of questions about facts. In deciding the constitutionality of a law that would shut down most abortion clinics in a state in the name of protecting women’s health, which facts about the law’s rationale and its impact may a court consider? Which facts must a court consider? Are there facts a court must ignore entirely?
Granted, that’s not how the Texas abortion case that is scheduled to be argued on Wednesday is usually described. I’ll explain. But first, for context, I’ll put on the table a few facts about House Bill 2, the 2013 Texas law that requires abortion clinic doctors to have hospital admitting privileges and the clinics themselves to be fitted out as mini-hospitals, even those that simply dispense the pills that bring about a nonsurgical abortion.
Fact No. 1: Texas has regulated abortion clinics for years through strict licensing requirements and annual inspections, achieving a commendable safety record. Along with other medical clinics that provide outpatient services, abortion clinics were required to have emergency procedures in place in case a patient needed hospital care. The clinic’s doctors could either have hospital admitting privileges (which most doctors who provide abortions can’t get) or a “transfer” agreement with another physician who had admitting privileges. The law eliminated the transfer-agreement option for abortion clinics.
Fact No. 2: If the law goes into effect, the abortion clinics in El Paso will close, leaving no abortion services from San Antonio west to the New Mexico border. This is no problem, Texas maintains, because women who would have gone to El Paso can travel about 12 miles farther, across the New Mexico line, to an abortion clinic in Santa Teresa, N.M. The fact that New Mexico has neither the admitting-privileges nor mini-hospital requirements — the very requirements that Texas maintains are necessary to protect the safety of abortion patients — seems not to concern the state.
Fact No. 3: After the bill, originally known as Senate Bill 5, or S.B. 5, cleared the State Senate, David Dewhurst, then the lieutenant governor, tweeted a map that opponents had circulated showing all the abortion clinics that would have to close. “We fought to pass S.B. 5 thru the Senate last night, & this is why!” he exulted. A subsequent tweet found him back on message, explaining that “I am unapologetically pro-life AND a strong supporter of protecting women’s health. #SB5 does both.”
Why would the lieutenant governor — perhaps on the advice of the state’s lawyers, but that’s just a guess — water down his triumphant tweet by throwing health into the mix? The answer lies in abortion politics and abortion law. Both are highly relevant to Whole Woman’s Health v. Hellerstedt, the case before the Supreme Court.
The emphasis on women’s health is a reflection of the evolution of the anti-abortion movement during the years since the court, in its 1973 Roe v. Wade decision, declared a constitutional right to abortion. The movement’s original emphasis on the fetus failed to achieve the goal of overturning Roe either by constitutional amendment or by changing the direction of the court. Groups including Americans United for Life, a strategic and highly effective policy generator for the movement, began to urge sympathetic politicians to invoke women’s welfare as the reason for imposing new restrictions on abortion. Among the many model laws that Americans United for Life makes available through its “Women’s Protection Project” are those requiring admitting privileges and “ambulatory surgical center” standards for abortion providers. More than a dozen states have enacted versions of the model laws.
Laws like these, which single out abortion for special regulations that don’t apply to medical procedures of similar or greater risk, are known in the abortion-rights community as TRAP laws, for “targeted regulation of abortion providers.” The Texas case is the Supreme Court’s first occasion to examine one. The decision — if, in the wake of Justice Antonin Scalia’s death, there is a decision and not a deadlock — will determine the future of abortion regulation. (A tie would leave the Texas law in place.)
Is there a legitimate reason for singling out abortion for special treatment — what Reva B. Siegel and I call “abortion exceptionalism” in an article to be published this spring in the Yale Law Journal? The argument is that abortion has a moral valence that makes it different from the many other medical procedures that states subject to less rigorous oversight. The Supreme Court’s current abortion jurisprudence recognizes this: Planned Parenthood v. Casey, the 1992 decision that preserved the right to abortion while modifying Roe v. Wade, acknowledged society’s interest in unborn life from the beginning of a woman’s pregnancy and enabled states to take certain steps to protect it.
But it’s crucial to understand that the court in Casey set strict limits on how states can express their respect for unborn life. To quote from the controlling opinion: “The means chosen by the state to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” In other words, a state may try to persuade a woman to change her mind. It may impose a waiting period and mandatory counseling, both of which the Casey decision upheld. It may ban a particular little-used method of later-term abortion when other methods were available, as the court ruled in a 2007 decision, Gonzales v. Carhart. But at the end of the day, the court insisted in Casey, a woman had to be free to carry out her decision to end a pregnancy. The state could inform but not hinder. Persuade but not prevent.
Laws that predictably close clinics through unattainable regulations don’t inform and don’t persuade. They destroy the infrastructure on which women necessarily depend for the exercise of their constitutional right. States can’t impose such regulations in the name of protecting unborn life. They need to find another justification.
The justification that state officials reach for is health. The court in Casey, as in Roe, identified women’s health as an appropriate subject for abortion regulations. But the court made clear that health regulations, as with other abortion restrictions, must not impose an “undue burden” on women seeking abortion. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the court said.
Unnecessary health regulations. Are admitting privileges necessary? Do safe abortions require mini-hospitals? How are judges to ensure that a health-justified regulation that will close clinics — three-quarters of them in Texas, leaving at most 10 open — actually promotes health and isn’t just a backdoor way of cutting off access to abortion by means that the Supreme Court has deemed unconstitutional?
Here is where the all-important questions of fact come in. The United States Court of Appeals for the Fifth Circuit, which upheld the Texas law, insisted that as long as “any conceivable rationale” for an abortion regulation exists — even one based only on “rational speculation unsupported by evidence or empirical data” — judges should accept that justification without further inquiry. The appeals court rebuked Judge Lee Yeakel of the Federal District Court in Austin (an appointee of President George W. Bush), who had found in separate opinions that both the admitting privileges and mini-hospital requirements lacked medical justification. He said that these restrictions created not only an undue burden but “a brutally effective system of abortion regulation.”
LAST Wednesday, the Fifth Circuit issued a stay of a decision by a federal district judge in Louisiana who last month in similar terms found that state’s admitting-privileges law imposed an undue burden. Judge John W. deGravelles’s 112-page opinion, written after a six-day trial, detailed the futile efforts of abortion-clinic doctors to obtain admitting privileges. The law would leave Louisiana with one or at most two abortion clinics.
Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit struck down Wisconsin’s admitting-privileges law last year in an opinion that used comparative data to show how singling out abortion made no objective sense. (Wisconsin doesn’t require admitting privileges for any other outpatient procedure, including those demonstrably more dangerous.)
Courts, he said, should weigh the medical evidence behind a regulation against its impact. When the evidence is “feeble” and the burden substantial, the burden is undue, he concluded.
The Fifth Circuit acknowledged Judge Posner’s approach and rejected it. “In our circuit we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” the court said in an earlier round in the Texas litigation.
Evidence matters to courts. Courts take evidence all the time. That’s why we have trials, and judges. The notion that when it comes to restricting abortion, facts shouldn’t count, is to give “abortion exceptionalism” a new meaning. It is a meaning the Supreme Court will reject if it is true to its precedents and principles.