Supreme Court Update: Whole Woman's Health v. Hellerstedt (15-274)

July 1, 2016 Supreme Court Update

Greetings, Court Fans!

We're back with our penultimate Update of OT15, covering one of the biggest decisions (and certainly the longest) of the term, Whole Woman's Health v. Hellerstedt (15-274). Hellerstedt, the first significant abortion case to reach the Court in nearly a decade, posed a test to the enduring vitality of the "undue burden" standard first announced in Planned Parenthood v. Casey (1992). Under Casey, states are permitted to enact laws regulating pre-viability abortion, so long as those laws don't place an "undue burden" on a woman's right to decide to have an abortion. But in the twenty-four years since Casey was decided, the Court has offered little additional guidance on the contours of the undue-burden standard. On Monday, the test emerged stronger than ever.

In 2013, the Texas legislature adopted a bill that contained two new requirements for doctors and facilities that provide abortions. First, the so-called "admitting-privileges requirement" said that any physician performing abortions had to have active admitting privileges at a hospital within 30 miles. Second, the "surgical-center requirement" said that an abortion facility must have physical facilities that meet the requirements for ambulatory surgical centers. Abortion-rights proponents warned that these requirements would lead to the closure of the majority of abortion facilities in Texas, including all or most outside of Texas's urban metropolises. In Hellerstedt, a group of abortion providers challenged both these provisions as effectively imposing an undue burden on a woman's right to seek an abortion. The Fifth Circuit upheld the regulations, but the Supreme Court reversed in a 5-3 decision authored by Justice Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.

Before addressing the undue-burden question, Justice Breyer had to contend with a weighty procedural argument. As it happens, Hellerstedt was not the first case challenging the constitutionality of the admitting-privileges and surgical-center requirements. Before the law took effect, a group of Texas abortion providers—including some of the same providers who were plaintiffs in Hellerstedt—filed a lawsuit claiming that the admitting-privileges provision was facially unconstitutional. The providers lost that case in the Fifth Circuit and did not seek certiorari. Texas therefore argued that the doctrine of res judicata barred the providers' later challenge to the same law. But the majority was not persuaded. As Justice Breyer explained it: "The doctrine of claim preclusion (the here-relevant aspect of res judicata) prohibits successive litigation of the very same claim by the same parties." The challenge raised in this case—a post-enforcement as-applied challenge to the admitting-privileges provision—was not "the very same claim" as the providers' earlier pre-enforcement facial challenge. "The development of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim." And that was the case here, because the post-enforcement effects of the law—including the closure of a large number of abortion clinics—were simply "unknowable" before the law went into effect.

The majority also rejected the argument that res judicata barred a challenge to the surgical-center requirement. According to Texas, the abortion providers should have raised a challenge to this requirement in their earlier suit. Not so, said the majority. "The surgical-center provision and the admitting-privileges provision are separate, distinct provisions of [the bill]," and "courts normally treat challenges to distinct regulatory requirements as separate claims, even when they are part of one overarching [g]overnment regulatory scheme." A contrary rule would only "encourage a kitchen-sink approach to any litigation challenging the validity of statutes." In short, neither claim was barred by res judicata.

Proceeding to the merits, Justice Breyer began by clarifying Casey's "undue burden" standard.

Although a state generally has a legitimate interest in seeing that abortions are performed safely, Breyer reiterated Casey's statement that "[u]nnecessary 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 explained that Casey's undue burden standard requires a balancing test—considering on the one hand "the burdens a law imposes on abortion access" and on the other hand "the benefits those laws confer." And the "undue burden" test is not deferential to the medical judgments of legislatures. Instead, the test "place[s] considerable weight upon evidence and argument presented in judicial proceedings."

Applying that standard to the admitting-privileges requirement, Breyer noted that existing Texas law required a physician performing an abortion to have a working arrangement with another physician who had admitting privileges at a local hospital. The new provision required the abortion doctor himself to have admitting privileges at a hospital within 30 miles. The Court found "nothing" in the record to suggest that "the new law advanced Texas' legitimate interest in protecting women's health." To the contrary, the record evidence indicated that, before the law's passage, abortion was "extremely safe with particularly low rates of serious complications and virtually no deaths." Expert testimony established that "complications rarely require hospital admission, much less immediate transfer to a hospital." The rarity of complications itself made it difficult for doctors to gain admitting privileges at hospitals, which typically condition privileges on reaching a certain number of admissions per year. "[T]he fact that abortions are so safe meant that providers were unlikely to have any patients to admit." At the same time, the Court found that the law placed "a substantial obstacle in the path of a woman's choice." When the admitting-privileges requirement was enforced, the number of facilities providing abortion in Texas dropped in half—from 40 to about 20. These closures were the result of the admitting-privileges law, and they "meant fewer doctors, longer waiting times, and increased crowding." Additionally, the closures meant that more women lived farther from an abortion provider, sometimes more than 150 or 200 miles away. When balancing the burden of the closures with the "virtual absence of any health benefit," the majority concluded that the admitting-privileges requirement was an "undue burden" and therefore unconstitutional.

Next, the Court examined the surgical-center requirement. Prior to the enactment of the law, "Texas law required abortion facilities to meet a host of health and safety requirements": physical standards, infection control standards, medical- and clinical-services standards, and more. All these requirements were "policed by random and announced inspections, at least annually." But the surgical-center requirement added new "detailed specifications relating to the size of the nursing staff, building dimensions, and other building requirements." For example, an abortion facility would need to meet numerous spatial requirements like specific corridor widths and operating room areas, and would need to satisfy particular piping and plumbing requirements. The Court found "considerable evidence in the record" indicating that these requirements do "not benefit patients." As the Court explained, "abortions taking place in abortion facility are safe—indeed, safer than numerous procedures to which Texas does not apply its surgical-center requirements." In short, "the surgical-center requirement is not necessary." The Court also agreed with the District Court's conclusion that "the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion." Compliance with the law would be prohibitively expensive for abortion facilities, costing $1 million to $3 million per facility. And the requirement would cause more closures, reducing the total number of abortion facilities to seven or eight statewide. Women would need to travel even longer distances "in the face of no threat to women's health." Moreover, it was implausible to believe that these seven or eight facilities could expand sufficiently to provide abortions for the 60,000 to 72,000 Texas women who seek abortions each year. In short, "the surgical-center requirement . . . provides few, if any health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden' on their constitutional right to do so."

The majority deemed both provisions facially unconstitutional—that is, the laws were unconstitutional on their face, regardless of how they might be applied in any particular circumstances. Texas argued that this outcome was precluded by the law's broad severability clause, which provided that, if any portion of the law was struck down by a court, the remaining provisions would still remain good law. The majority rejected this argument, stating that "the provisions are unconstitutional on their face: Including a severability provision in the law does not change that conclusion." While the Court generally respects a legislature's inclusion of a severability clause, there is no requirement that it "proceed application by conceivable application when confronted with a facially unconstitutional statutory provision." Such a rule would let "legislatures . . . immunize their statutes from facial review." The Court also rejected Texas' argument that it should address each and every surgical-center regulation one-by-one. Proceeding in that "piecemeal fashion" is unnecessary "when . . . the statutory provisions at issue [are] facially constitutional."

Justice Ginsburg, writing only for herself, submitted a brief concurrence. Although her colleagues in the majority didn't question the motives of the Texas legislature, she noted that laws like the one at issue here simply "strew impediments to abortion." As Justice Ginsburg saw it, "it is beyond rational belief that [the Texas law] could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions."

Justice Alito led the charge for the dissenters, joined by the Chief and Justice Thomas.

Much of Alito's lengthy dissent focused on the procedural arguments that the majority dispensed with rather quickly. According to Alito, the case should have been dismissed on res judicata grounds. Alito accused the majority of "simply disregard[ing] basic rules that apply in all other cases" by "award[ing] a victory to [the abortion providers] on the very claim that they unsuccessfully pressed in the earlier case." Alito also took issue with the majority's view of the evidence. According to the dissent, there may have been other reasons why some of the clinics closed, such as the withdrawal of Texas family planning funds, the nationwide decline in abortion demand, and the retirement of abortion doctors. And Alito similarly claimed that there was insufficient evidence that the abortion facilities that remained open could not accommodate the increased demand caused by the closed clinics. Finally, he criticized the majority's decision to enjoin both provisions in their entirety instead of engaging in an application-by-application review of the provisions. Alito would hold that the admitting-privileges provision "must be upheld in every city in which its application does not pose an undue burden." And he criticized the majority for failing to wade through each specific provision of the surgical-center regulations. "[I]t should not have been too hard," Alito wrote, "for the District Court to separate any bad provisions from the good" and enjoin only the bad ones. The Court's blanket approach results in the invalidation of numerous "innocuous provisions," Alito argued.

Justice Thomas also filed a solo dissent, taking issue with what he viewed as the Court's habit of treating abortion rights more favorably than other rights. He attacked the Court's longstanding rule that doctors and clinics have standing to raise constitutional claims concerning a woman's constitutional right to choose to have an abortion. He also claimed that the majority reworked Casey's "undue burden" standard, turning the standard into something "like the strict-scrutiny standard that Casey rejected, under which only the most compelling rationales justified restrictions on abortion." More broadly, Justice Thomas critiqued the entire "tiers-of-scrutiny approach to constitutional adjudication." According to Justice Thomas, these are just "made-up tests" that "the Court tinkers with . . . to achieve its desired result." "The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case."

That's about enough for one missive. We'll be back with a final Update after the long weekend to round out the Court's orders and what it has in store for us in OT16. Happy Fourth!