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Monday, September 14, 2015

Texas, Abortion, and the Supreme Court – Part II

As I noted in an earlier post, several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.) 

The plaintiffs in Whole Women's Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden. 

First, they will close three quarters of the abortion clinics in Texas, reducing the number from 40 to 10. The law would therefore drastically reduce abortion access for women in Texas, essentially making the procedure completely unavailable for a large swath of Texas residents. The problem would be particularly acute in the Rio Grande Valley, which is a largely impoverished area that would be left without any abortion provider at all (indeed, a recent study listed two metropolitan areas in the Rio Grande Valley as the two poorest cities in the country). 

Although the undue burden standard is notoriously amorphous, there seems to be good argument that a requirement that closes so many clinics and reduces access so dramatically-- in practical terms eliminating the right to seek an abortion for a large number of women -- would have to constitute an undue burden. In other words, if anything is an undue burden, this is.

At the same time, this theory raises the question of just how many clinic closings is too many. There is no easy answer to that question. If a state enacted a law that would have the effect of closing every clinic in the state, it would seem to constitute a clear undue burden for women in that state. But how close to that line can a state come without violating the undue burden standard? Moreover, what if the clinics were being closed because they were all being operated by incompetent physicians, or because they were unsanitary?  (That is emphatically not the case here, but I pose that hypothetical because it raises the question of whether undue burden can be judged based on the impact on access alone.)

That’s the first argument. The second argument is related. It says that the Texas law imposes an undue burden because it dramatically reduces abortion access without having a similarly significant health benefit to women in Texas. The state justifies the ASC and admitting privileges requirements as measures that protect health and safety. Yet, there is no evidence whatsoever that these requirements actually do advance any health or safety interest. So, the plaintiffs argue, the burden on abortion is “undue” because it has little positive impact in advancing the state’s purported interest while imposing a heavy burden on abortion access. In other words, in determining whether a burden is “undue,” courts should weigh the effect on abortion access against the extent to which the restriction actually advances a legitimate state interest. 

The circuits are currently split on whether to engage in this sort of balancing test. As the plaintiffs’ cert petition notes, the Seventh and Ninth Circuits hold that this sort of balancing is required by the undue burden test, whereas the Fifth and perhaps Sixth Circuits have rejected it.

Again, it seems the plaintiffs have a very strong argument here.  The balancing-test model makes sense of the hypothetical I presented above, in which the state’s clinics were being closed due to real, rather than unsubstantiated, health and safety concerns. In addition, if the undue-burden test doesn’t take the legitimacy of the state’s interest or the mean-end fit into account, then it starts to look a lot like a rational-basis standard of review, according to which any asserted state interest in health and safety, no matter how pretextual, is permitted to justify closing of clinics, as long as it doesn’t close all, or virtually all of the clinics.

So, that’s the big-picture overview of the legal claims in the case. In my third and final post on this case, I’ll do a brief evaluation of the likelihood that the Court will take the case and how it might decide it.

Posted by Jessie Hill on September 14, 2015 at 10:25 AM in Constitutional thoughts | Permalink


N.D. - I'm not suggesting that if a child is dependent to the mother, he/she would lose his Due Process right to life. Don't just take a single word out of my whole context. We're talking about the point where the fetus is an inseparable part of the mother. Constitution is subjected to the reasonable interpretation, you just cannot dissect isolated word and use it as is. Anyway, if we're to strictly interpret constitution according to text, like what Scalia said, 14th Amedment Due Process Clause Prohibited "States" from depriving citizen their right to life, it did not say any thing about what private citizen can and cannot do!,,

As Joe observed, generally one cannot coerce one another in the matter of personal autonomy and body integrity, even if it's required for survival. I cannot coerce my neighbor, or even my own mother for a kidney or blood transfusion, even if I need that to live and survive.

Posted by: Fred | Sep 17, 2015 8:18:31 AM

Michael, I agree - it does go to the legitimacy and weight of the state's interest here, and I basically end up where Joe does on this point. These regulations are supposed to (claimed to) be passed to advance the state's interest in women's health (NOT the interest in potential life). Yet there's no reason abortion should be singled out with respect to the health rationale. It is one of the safest surgical procedures there is, with complication rates that are much lower than those of many other surgeries that can be performed in outpatient settings. (One recent study shows, for example, that the rate of major complications for abortion is lower than for colonoscopy.) So there's no basis for singling abortion out. Indeed, TRAP laws have been challenged under the Equal Protection Clause, but with limited success.

Posted by: Jessie Hill | Sep 16, 2015 3:08:05 PM


What is needed is a personhood amendment as slavery, abortion, and identifying persons according to sexual desire/inclination/orientation, by objectifying the human person, deny the inherent Dignity of our beloved sons and daughters.

Posted by: Nancy D. | Sep 16, 2015 9:02:15 AM

The laws are not neutral health regulations:


Posted by: Nancy | Sep 15, 2015 11:54:54 PM

tl;dr: Michael's comment is telling -- the laws are not neutral health regulations. As a whole, the purpose/effect is an undue burden, the special nature suspicious. U.S. v. Windsor again comes to mind.

Posted by: Joe | Sep 15, 2015 10:29:21 PM

It might be helpful to quote Casey:

"A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because 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. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends."

Health would be such a "valid state interest." The opinion upheld various regulations in the promotion of that interest and from Roe on, neutral health regulations were acceptable in various cases as Casey notes -- abortion is a medical procedure, so can be regulated as such. An informed consent provision "facilitates the wise exercise" of the right to choose. It must be "truthful, nonmisleading information" though and certain regulations nationwide might not meet that test. A 1A concern is flagged but not really examined in depth.

A spousal notification illegitimately burden an INDIVIDUAL'S right with gender inequality overtones. It basically illegitimate in purpose and effect. The purpose/effect language is Kennedyesque -- it is also found in U.S. v. Windsor.

Recordkeeping etc. advances women's health and does not "impose a substantial obstacle to a woman's choice." Only a "slight" raise in cost is worth the candle. A waiting period is held to advance the state's interest in life; this was enough but some also note it also advances women's health by helping them make a fully informed choice without second guessing later. On the evidence available, the particular one did not "create any appreciable health risk" but noted the question was closer than the others. But, again the specific facts did not show a substantial burden.

The "substantial obstacle" of waiting periods in various cases, including to rural residents as one comment wrote about in an article, can be shown most probably in various instances. But, to focus on the matter at hand, the Texas law as a whole much more than the PA law in Casey provided a 'substantial obstacle' and in various instances the state interest in health is weak at best. If there is a substantial obstacle and the "interest in maternal health" is weak, there is an "undue burden" and the law should fall.

I think we can see it as a type of balancing but again the state health interest is also supposed to be beneficial to the right to choose as well. The regulations aren't supposed to be gratuitous, untruthful, misleading etc. in nature. Abortion is a form of health care & reasonable regulations are part of it. And, this goings to the "purpose" prong as well. "TRAP" laws are not passed in good faith.

Posted by: Joe | Sep 15, 2015 10:27:39 PM

One of the interesting aspects of this case is that the Texas law in question seems to single out abortion providers for these requirements. Other types of health providers aren't subject to the same requirements. Could this be a factor in the court's scrutiny of the legitimacy of the state interest? ie if these requirements are necessary to protect health and safety, why wouldn't they apply to all health providers in the state?

Posted by: Michael | Sep 15, 2015 8:59:13 PM

Asher - thanks for engaging the substance of this post. Yes, I think I'm still correct, because when courts don't scrutinize the state interest at all--they just assume it is valid and substantial and the only thing on the other side of the calculus that could possibly outweigh it is a huge reduction in access, then it amounts to not looking at the state interest at all. In other words, it doesn't "take the legitimacy of the state's interest into account" in the sense that it doesn't question that interest. So I think it gets you to the same place.

Posted by: Jessie Hill | Sep 15, 2015 7:15:25 PM

"In addition, if the undue-burden test doesn’t take the legitimacy of the state’s interest or the mean-end fit into account, then it starts to look a lot like a rational-basis standard of review, according to which any asserted state interest in health and safety, no matter how pretextual, is permitted to justify closing of clinics, as long as it doesn’t close all, or virtually all of the clinics."

Is that right? I would think it's the other way around. If you didn't take state interests into account, you'd just be left with the severity of the burden.

Posted by: Asher | Sep 15, 2015 5:34:55 PM

"[Texas] argues that the fetus is a ‘person' within the language and meaning of the Fourteenth Amendment...If this suggestion of personhood is established, the appellant's case (or Roe's case) collapses, for the fetus' right to life is then guaranteed by the 14th Amendment."


Joe, you became a son at the moment of your conception.

Posted by: Nancy | Sep 15, 2015 4:56:20 PM

Thanks of this post, Jessie. I analyzed Texas H.B. 2, Abbott, and Lakey in relation to poor, rural/nonmetropolitan women in Urbanormativity, Spatial Privilege and Judicial Blind Spots in Abortion Law, published this spring.


Given the reproductive rights movement's long-standing neglect of rural women and those women's particular struggles for abortion access, I guess I should not be surprised that the Petition for Cert. does not mention rural women. Indeed, it mentions "distance" only twice, and "travel" and "poverty" only once each, all when quoting the district court in Lakey. I am disappointed by the petitioners' efforts, at least as regards some of the poorest women in the nation.

Posted by: Lisa Pruitt | Sep 15, 2015 12:55:25 PM

I appreciate Fred's discussion but what "truly" can be said is a matter of drawing lines that require a determination of certain debatable criteria. Suffice to say, I think it reasonable to say some sort of "life" is present even before the fetus is able to independently survive though that point is significant in part since generally speaking third parties are not allowed to take over one's body even if that is required for survival.

But, the legality of abortion -- it was legal in 1776 too -- isn't the question as Fred notes. It is the specific application of the "undue burden" test & it is about time for the USSC to clarify that.

Posted by: Joe | Sep 15, 2015 11:49:26 AM

Fred, where in our Constitution does it state that Due Process does not apply to children who are dependent on their mothers? Are you suggesting that if a child is dependent upon their mother, they lose their unalienable Right to Life?

Posted by: N.D. | Sep 15, 2015 11:44:26 AM

In a strict biological sense, purely from scientific point of view, not personal or faith-based belief, it cannot be truly said that the life begin at the moment of conception (i.e. The moment that spermatozoon penetrated ovum and zygote is created). At that point, it's basically a single cell, capable to multiplying itself and develop into many other lines of cell (technical term: cell differentiation). The very same abilities that most of the cell in our body possessed, which explain why our bone marrow can created different types of blood cell, how the bone elongated when we grow up or simply how our body create new skin cells every single days. No one ever contend that this well established biological fact is a form of creating new life. In fact, cancerous cell line possess even greater ability to grow indefinitely, with your interpretation of the definition of life, can doctors be prosecuted with murder if he/she treats cancer patient? Considering that the adult probably don't have fundamental liberty to consent one another to take life away based on Washington v Glucksburg.

Done with the fact, then the threshold question that many struggle to answer, in my opinion, is whether "At what point of pregnancy that the embryo is sufficiently developed to be considered a new and independent Life?". The when the balancing test came into play, and how the term viability arose in this legal context.

The court recognized that a Person has autonomy of his/her own body at least until the fetus can become independent from the mother. However, this is not the question currently before the court on this petition. It's whether Texas's laws that in effects making it harder of women to seek abortion, created undue burden to women seeking to exercise protect liberty under 14th amendment. I feel that it's time for the court to clarify what exactly undue burden standard is, two prongs, three prongs etc. Otherwise, the states will keep inventing fashionable ways to "protect the health" of the women.

Posted by: Fred | Sep 15, 2015 11:08:38 AM

Joe, Our Founding Fathers were well aware that we were brought into being before we were brought forth from the womb or delivered by Caesarian Section, which is why they unanimously declared that all men are created equal, and did not state that all men are born equal. How can there be a right to destroy a son or daughter residing in their mother's womb when Due Process applies to every human person, and thus every son or daughter of a human person who exists now or will exist in the future?

Posted by: N.D. | Sep 15, 2015 10:38:09 AM

The statement was a discussion of "life" in a specific legal sense, not the basic scientific fact that a fertilized egg is a homo sapiens fertilized egg. Your second statement shows some realization that "person" has to be understood in a certain sense, since "human" is not there, and there are various types of "persons" that can exist.

I won't go on and on here since you comments have the ring of evangelical statements, not neutral analysis. But, it's fair, I think, to be clear on what we are talking about here, why Justice Antonin Scalia and Justice Clarence Thomas, both personally pro-life, have not held that allowing abortion is a violation of the Due Process Clause.

Posted by: Joe | Sep 15, 2015 9:29:08 AM

"The judiciary, at this point in the development of man's knowledge, is not in a position to... resolve the difficult question of when life begins... since those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus." Roe v. Wade, 410 U.S. 113 (1973)

This is a misstatement of fact. In 1973, we knew that every human life begins at the moment of conception. We also knew that a human person can only conceive a human person, and that every son or daughter of a human person can only be a human person.

Posted by: N.D. | Sep 15, 2015 7:33:49 AM

"Nor shall any person . . . be deprived of life, liberty, or property, without due process of law"

The term "person" in the Constitution has been applied in the full sense only to humans that are born. A "person" has the right here as understood by our law. Angels, for example, are a sort of "person," but even if they exist, don't think the provision applies to them.

There was a right to abort in 1791 when the Bill of Rights was ratified before quickening and there continued to be in various cases until today. Anyway, a person doesn't have a constitutional right to take over the body of another person even if it is necessary for survival. So, even if a fertilized egg, embryo etc. was a "person," it wouldn't necessarily mean abortion was not protected.

That is why and it was explained when the right to choose an abortion was upheld in the courts around the time of Roe v. Wade though a few courts did not rule like Roe did. However, not even Scalia or Thomas has held a state CAN NOT, if they choose, to allow abortion because it would be a violation of the Due Process Clause.

Anyway, I agree they have a strong case; the question is if Justice Kennedy will agree.

Posted by: Joe | Sep 14, 2015 9:22:52 PM


How can there be a right to end a pregnancy prior to the viability of the son or daughter residing in their mother's womb, when the first fundamental Liberty protected by The Due Process Clause, is our Right to Life, which has been endowed to us from the moment of our creation, not the moment we became viable?

Posted by: N.D. | Sep 14, 2015 8:44:24 PM

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