Whole Woman’s Health v. Cole, the Texas abortion case that is now before the Supreme Court, is really about the rule of law and how federal judges maintain it by holding states to external standards. The case follows Planned Parenthood of Southeastern Pa. v. Casey, which forbade states from using the desire to protect women’s health as a pretext for curtailing their access to abortion services. But how is a judge to distinguish a pretext from a genuine concern for patient safety?
Casey seemed to say that unless all possible connections between a regulation and patients’ wellbeing can be ruled out completely, a state’s proffered reason is bona fide. That’s far too weak a standard, and later cases seemed to confirm it by saying that states don’t have to show that their laws will actually protect women from documented perils. Seeing this, Texas and other pro-life states have done exactly what Casey forbids. They’ve enacted laws that shut down abortion clinics while shouting “Women are in danger! Women are in danger!” The issue in Cole is whether states must prove that access-impeding laws address real safety problems. If the Court says no, Casey will be a dead letter.
It should be plain to everyone that lawmakers won’t respect constitutional limitations on their own. Politics is a brass-knuckles world. The people who thrive in it aren’t rule-followers by nature, and their incentives are terrible. When they can gain by doing something, they will, the Constitution be damned. That’s where judges come in. They’re supposed to keep lawmakers in line by delivering swift kicks to their posteriors when they violate the Constitution.
If you own a gun, attend church, express opinions on Islam, read books, browse the internet, use birth control, listen to hip-hop, play violent video games, watch movies, oppose America’s foreign wars, or exercise any other civil liberty, you should want judges to apply their boots as needed. Millions of Americans would love to curtail your freedoms. Lucky for you that there’s a line beyond which the will of the people cannot reach, and that judges enforce it.
Cole asks about the need for an enforcer in the context of abortion. Must courts“consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health?” Of course! The Constitution protects a personal space into which a state may not stick its nose without a good reason. But a state cannot have a good reason unless the policy it wants to enact will do what it claims. Here, Texas says it wants to protect women from conditions that endanger their health. If this is true, Texas should be able to identify documented risks and show that its law will reduce them.
As obvious as this may seem, courts have generally allowed states to handle safety as they see fit. Consider Roe v. Wade, the decision that identified a protected right of access to abortion services during the first trimester. It recognized that a state “has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient,” and it added that this “interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.” Roe v. Wade cemented the propriety of public micro-management of the delivery of health care for the purpose of protecting patients.
Roe’s reference to “maximum safety” empowers states to do all sorts of mischief. Nobody wants “maximum safety” because it costs too much. Who would spend $1 million to reduce the risk of a post-abortion infection by .00001%? But by allowing states to require “maximum safety,” Roe enables them to say: “Pay the $1 million or forego the procedure.”
That’s what Texas did. Its 2013 statute is a cost-magnifying, job-killing work of art—but Texas Republicans don’t care because the jobs belong to abortionists. The law subjects abortion clinics to the same building requirements that apply to ambulatory surgical centers. Knowing that their patients can’t afford the prices they’d have to charge to cover the cost of reconstruction, many clinics closed. Others succumbed because the doctors who staff them couldn’t obtain admitting privileges at nearby hospitals, which Texas’ new law also requires. Similar regulations closed all but one of Missouri’s abortion facilities, and would have closed all of Cincinnati’s clinics had Ohio’s health department not granted a last-minute exemption.
Texas Attorney General Ken Paxton thinks it’s just fine to saddle abortion clinics with high costs. “The advancement of the abortion industry’s bottom line shouldn’t take precedence over women’s health,” he contends. What a clever gambit. To put abortionists out of business, Texas’ lawmakers need only declare that women deserve the finest health care money can buy. Who but a misogynist would quarrel with that?
The gambit will fail, though, if the Court requires Texas to demonstrate a real danger that its law addresses. Because “[a]bortion is one of the safest medical procedures performed in the United States,” Texas will have a hard time proving there’s a problem.Judge Richard A. Posner, a brilliant and conservative Reagan appointee, made this point when striking down a Wisconsin law that also mandated admitting privileges. He found that for early-term abortions “the rate of complications is below 1 percent” and the frequency of complications that require hospitalization “is one-twentieth of 1 percent.”Texas won’t be able to show that admitting privileges or building requirements protect women either, for reasons Posner also explained. Not content to ridicule Wisconsin for offering phony justifications, he lambasted Texas too, saying that both states’ laws “do little or nothing for health, but rather strew impediments to abortion.”
Judge Posner is clearly right, but if past is prologue the Supreme Court won’t stand in Texas’ way. In prior cases, it hasn’t required states to show that regulations are needed or likely to work. In Mazurek v. Armstrong the Justices considered a Montana law that prohibited physician assistants from performing abortions. “No evidence” showed that patients treated by a PA fared worse than those treated by a doctor, but the Court let the law stand. The Court wasn’t persuaded that Montana had an improper purpose either, even though its real object was clearly to put out of business the lone PA who performed abortions in the state.
In Cole, the Fifth Circuit also ruled that states are free to confect risks and benefits. Like Judge Posner, District Court Judge Lee Yeakel correctly found that “abortion in Texas was extremely safe” and that Texas’ law was pointless because it wouldn’t reduce any documented risks. Reversing, the Fifth Circuit ruled that Texas can decide for itself whether abortion services are safe enough and whether its mandated “improvements” will help. Mazurek, it said, eliminated the need for proof. It might as well have said thatMazurek eliminated Casey.
How will Cole turn out? The conventional wisdom among Court-watchers is that Justice Kennedy holds the deciding vote, is tolerant of restrictions, and will let the Texas statute stand. If I were a betting man, I’d put my money on that. Still, one must wonder why Kennedy sided with the Court’s liberals in a 5-4 vote to enjoin Texas from enforcing its new regulations. Probably, it was the fact that half of Texas’ abortion facilities closed.Prior cases permit only “incidental” diminutions of access when states seek to protect women’s health. Maybe the plaintiffs can convince Kennedy that Texas went too far.
Finally, Justice Kennedy might suspect that Texas’ Republican lawmakers feigned their concern for women’s safety. With good reason. While the 2013 statute was in the legislature, a race for Lt. Governor was taking place in which Houston Senator Dan Patrick sought to unseat the incumbent, David Dewhurst. Hoping to score points with Christian conservatives, Patrick said that he wanted to “to end abortion,” and he chided Dewhurst for talking only about women’s health. After the bill passed the Texas Senate, Dewhurst tried to undo the damage by “brag[ging] about closing abortion clinics.” The response was too little, too late—Patrick defeated Dewhurst—but the exchange revealed that Texas’ lawmakers were really out to please the religious right.
Cole isn’t about the rightness or wrongness of abortion. It’s about protecting civil liberties by forcing states to have good reasons for infringing them. Will the Justices see that, put aside their differences over abortion, and speak with one voice in support of the rule of law?
Charles Silver is the Professor at the University of Texas School of Law who teaches civil procedure, litigation, health care, ethics, and insurance.
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