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Friday, October 03, 2014

Can't They Read on the Fifth Circuit?

With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times

Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.

At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.

The Fifth Circuit overrode the district court on the ground that Casey requires challengers to demonstrate that an abortion regulation imposes an undue burden "in a large fraction of the cases in which it is relevant." Since the women who live great distances from remaining clinics are not a "large fraction" of pregnant women in Texas, the appellate court upheld the clinic standards regulation.

But that reading ignores half of the Casey standard. Yes, the Casey Court referred to a large fraction of the cases, but it also referred to the cases for which the regulation "is relevant." Thus, when the Casey Court struck down Pennsylvania's spousal notification requirement, it observed that abortion regulations "must be judged by reference to those for whom it is an actual rather than an irrelevant restriction." Indeed in Casey, the spousal notification requirement would have been an undue burden for less than one percent of women seeking abortions in the state.

It is not always easy to interpret Supreme Court opinions, but the Fifth Circuit's reading is not tenable. Fortunately, this is only a temporary ruling pending a full appeal before the Circuit, and the Fifth Circuit will not have the final word on this matter.

[cross-posted at HealthLawProfs and orentlicher.tumblr.com]

Posted by David Orentlicher on October 3, 2014 at 09:00 AM in Constitutional thoughts, Current Affairs, Gender | Permalink


"The Court in Ayotte ... assessed the proportion of unconstitutional to constitutional applications by reference to all pregnant minors seeking abortions." I think we agree on that. This was different from what the Court did in Casey. As for standing on thin reeds, standing pat is better than stretching, so that's what I'll do here. People can read the opinions and make up their minds.

Posted by: Kevin C. Walsh | Oct 3, 2014 9:02:19 PM

"it would have had to affirm the First Circuit's facial invalidation"

The USSC opinion states that NH took no real issue with the "fact" that "some very small percentage of cases, pregnant minors, like adult women, need immediate abortions" and in such cases, the provision in question would be unconstitutional if it stopped them. Likewise, it is assumed that the challengers would "recognize the possibility of a modest remedy." Given this, a unanimous court held the lower court was wrong to strike down the whole provision.

The nature of the case, first off, was different from Casey. The unanimous result alone suggests this. Second, if the Court was loosening standards here it is passing strange Stevens et. al. went along with it w/o comment. Finally, the Court did cite the fraction with special needs (the "very small percentage"). It determined facially overturning was not necessary to protect their interests. Was this the case in Casey?

One somewhat thin opinion is a thin reed to stand on here w/o stretching. With respect, I think you are. Anyway, as to the other comment, a large segment will be "affected" given the few number of clinics in the state and large population, but merely changing clinics might not be enough. It would at the very least depend on how far, e.g., the next clinic would be. More than enough at any rate to affect lots more than NH's law:


Posted by: Joe | Oct 3, 2014 7:40:37 PM

The Fifth Circuit actually left out a strong argument against the reading of Casey offered in this post, which is that the Supreme Court abandoned the "large fraction" test in the post-Casey decisions of Ayotte v. Planned Parenthood of N. New England and Gonzales v. Carhart. Here's what I argued in 2009:

Ayotte *** implicitly changed the frame of reference for facial invalidation as previously set forth in Casey. The Court in Casey held that Pennsylvania's spousal notification requirement was facially invalid because it unduly burdened a "large fraction" of women. The denominator of this "fraction" did not consist of "all women" or "all pregnant women" or all women "seeking abortions." Rather, it consisted of those women for whom the spousal notification requirement would be "an actual rather than an irrelevant restriction," i.e., the approximately one percent of women seeking abortions "who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The Court in Ayotte did not purport to apply Casey's "large fraction" test, but instead assessed the proportion of unconstitutional to constitutional applications by reference to all pregnant minors seeking abortions. Had the Court followed Casey in Ayotte, it would have had to affirm the First Circuit's facial invalidation because the denominator of the "large fraction" would have been only those pregnant minors for whom the absence of a health exception would be "an actual rather than an irrelevant restriction."


Justice Ginsburg charged in her dissent [in Gonzales v. Carhart] that the Court erred by departing from Casey's treatment of the "denominator" issue. But Justice Ginsburg's dissenting opinion does not acknowledge the inconsistency between Ayotte and Casey on precisely this issue. The dissenting opinion instead describes Ayotte as a case in which the facial challenge was "entertained," a description that is accurate but misleading given that Ayotte vacated the lower court's facial invalidation.

Kevin C. Walsh, Frames of Reference and the "Turn to Remedy" in Facial Challenge Doctrine, 36 Hastings Constitutional Law Quarterly 667, 682-83 (2009).

Posted by: Kevin C. Walsh | Oct 3, 2014 5:50:21 PM

It seems right that the denominator should exclude women whose behavior is unaffected by the law. Should women whose behavior will be affected, but not as severely as a 500 mile trip, also be included in the denominator? That is, should the denominator be all women who "have to change clinics as a result of the ambulatory surgical center provision," as the Fifth Circuit suggests in the alternative in footnote 15?

Posted by: Reader | Oct 3, 2014 11:45:37 AM

It is true that the Casey Court established a low threshold with its large fraction requirement, but I don't think the Fifth Circuit is correct when it says that the numerator always would equal the denominator. Undoubtedly, there are some women for whom a 500 mile trip would not impose an undue burden.

In any case, we don't have to speculate about the right way to think about "the fraction of the cases in which it is relevant" because the Casey Court gave a pretty good illustration of how to think about it with its application to the spousal notification requirement. Even though only 20 percent of women seeking abortion were married and even though only 5 percent of those women would not want to notify their spouses, the spousal notification requirement imposed an undue burden because of its impact on the one percent of women for whom it was relevant. In contrast, the Fifth Circuit did not think that 17 percent of women was a large enough fraction.

Posted by: David Orentlicher | Oct 3, 2014 11:34:24 AM

To be fair to the Fifth Circuit, they did talk a little bit about the denominator issue.

At page 15 the court says: "Every woman in Texas who seeks an abortion will be affected to some degree by this requirement because it effectively narrows her options for where to obtain an abortion."

At page 20, footnote 15, it says: "We note that even if the denominator excluded women who will not have to change clinics as a result of the ambulatory surgical center provision—for whom the provision arguably is not a restriction—Plaintiffs offered no evidence from which we could conclude that a large fraction of the remaining women will face an undue burden."

In defense of this way of thinking about the requirement, the court says (page 20 again): "Plaintiffs’ suggested approach would make the large fraction test merely a tautology, always resulting in a large fraction. The denominator would be women that Plaintiffs claim are unduly burdened by the statute, and the numerator would be the same."

If the court is wrong about how to think about the "fraction of the cases in which it is relevant" in Casey, what is the right way?

Posted by: Reader | Oct 3, 2014 9:54:07 AM

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