On March 28, a panel of three female judges on the Fifth Circuit Court of Appeals judged that Texas House Bill 2 (2013), which increased physician licensing standards and required certain medications to be prescribed along FDA guidelines, does not violate the Constitution. Why were such seemingly innocuous public health regulations challenged as unconstitutional at all? The requirements pertained to the one medical procedure that the Supreme Court has declared a “fundamental right”: abortion.
The Supreme Court is likely to hear the case on appeal, meaning that 2015 is likely to be the year of the next landmark abortion case. It is a great opportunity for the Supreme Court to rectify its previous encroachments on state police powers stemming from reading abortion rights through the lens of “substantive due process.”
Passed in the wake of the Kermit Gosnell trials and the filibuster that launched state senator Wendy Davis to feminist fame, Texas House Bill 2 (2013) bans abortion after 20 weeks, requires physicians who perform abortions to have admitting privileges at a hospital within 30 miles of where they perform the abortion, and stipulates that physicians must follow the FDA’s “final printed label” when prescribing certain abortifacient drugs.
While predictions differ, general consensus holds that abortions will become harder to obtain in the state of Texas. That’s mostly due to abortion physicians not meeting licensing standards, not being able to prescribe abortifacients as late in the pregnancy as they would otherwise, and having difficulties with required follow-up examinations. The constitutional question, introduced by Roe v. Wade (1973) and renewed in Planned Parenthood v. Casey (1992), is whether the regulations stem from a legitimate state interest and whether they impose an “undue burden” on a woman’s right to an abortion.
The “legitimate state interest” and “undue burden” tests stem from the controversial idea of “substantive due process.” As the late constitutional scholar John Hart Ely—who favored legal abortion—pointed out in his essay “The Wages of Crying Wolf,”
[Roe found] A woman’s freedom to choose an abortion is part of the “liberty” the Fourteenth Amendment says shall not be denied without due process of law. But [traditional] “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational” connection . . . with a permissible government goal.
Substantive due process allows the Supreme Court not only to determine which goals are permissible—as they did in Roe—but also which policies best serve those goals and which constitute an “undue burden.”
We’ve had 41 years of jurisprudence to figure out what these two concepts mean in terms of abortion. Roe grants only two “legitimate” state interests in regulating abortion—maternal health and the life of the viable fetus—rigidly attaching these interests to the second and third trimester of pregnancy, respectively. (Since Roe it was held in Maher v. Roe (1977) that demographic concerns may be grounds for a state to legitimately decline facilitating abortions, and fetal pain was suggested as a legitimate consideration for regulations in Thornburgh v. ACOG (1986).) Casey identifies an unduly burdensome regulation as one whose “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” Of course this all assumed that unborn children are not “persons” in a constitutional sense and thus do not qualify for “due process” protection themselves. The strict application of these twin notions, “legitimate state interest” and “undue burden,” leads to overturning numerous state public health regulations on abortion.
Roe v. Wade was decided, in part, to advance women’s health by taking abortions out of the back alley and into the hands of a woman and her now legal physician. In his 2013 book on the history of Roe, The Abuse of Discretion, Clark Forsythe quotes historian David Garrow, who wrote that “[Justice Blackmun] imagined abortions would be performed by a family physician in a hospital.” But, in an ironic twist, when Blackmun elevated abortion to the status of a “fundamental right” and thus subjected any abortion health regulations to heightened scrutiny, he undermined the health benefits that might have come from legalization. Contrary to Blackmun’s expectations, women rarely obtain abortions from their personal doctor. It’s hard to say whether abortions are safer for women than childbirth, because the statistics aren’t directly comparable (the latter only including live births and including all maternal deaths whether related to childbirth or not), abortion follow-up is limited, and abortion statistics rely on voluntary reporting.
The ramifications for state public health regulations were evident immediately after Roe. In Roe’s companion case Doe v. Bolton (1973), the Supreme Court struck down hospitalization requirements that had originally been recommended by the American College of Obstetricians and Gynecologists (ACOG). A few years later, in Planned Parenthood v. Danforth, the Court overturned a Missouri state ban on the popular second-trimester practice of saline abortions (on the grounds that alternative methods weren’t widely practiced yet). This was despite testimony from the Chief of Obstetrics at Yale, who warned of the dangers of saline abortions, saying “physicians should be liable for malpractice if they chose saline over prostaglandin after having been given all the facts on both methods.” Later, in City of Akron v. Akron Center for Reproductive Health, the Court used a 1982 ACOG study to overturn a hospitalization regulation that was, in turn, based on an ACOG study from 1978.
Each of the laws in these cases had a “rational connection” to maternal health, as does H.B.2. According to Dr. John Thorp, H.B. 2’s admitting privileges requirement is designed to ensure physician competence, continuity of care, optimal physician communication and transfer for complication management, and reduce patient abandonment. The FDA requirements for abortifacients are such that physicians can’t prescribe unauthorized dosages, prescribe the drugs after 49 days, or have women administer the drugs to themselves. The Fifth Circuit rightly saw that the Texas law meets any reasonable application of the “legitimate state interest” test.
As for the “undue burden,” Planned Parenthood contends that abortifacient constraints, follow-up requirements, and clinic closures resulting from not being able to comply with H.B. 2’s licensing regulations will substantially restrict a woman’s ability to exercise her abortion right. The Federal District Court of Western Texas initially invalidated H.B. 2 because “even if Defendants could prove that the Act advances maternal health,” a law with “the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” is not “a permissible means of serving [a] legitimate state end.”
But the Texas law doesn’t make abortions impossibly hard to obtain. Physicians can still prescribe abortifacient drugs; they simply must follow FDA guidelines. Physicians can get, and have gotten, admitting privileges at hospitals. Not all the clinics that were predicted to close have had to close, as Planned Parenthood conceded in Abbott’s oral arguments. And as the Fifth Circuit judges point out, a longer drive to a clinic for 10 percent of women does not exactly amount to a “substantial obstacle.” The way Planned Parenthood would have the court apply the “strict scrutiny” test would make regulations constitutional only where they wouldn’t have any effect.
Whether the policies in question in Danforth, Akron, or Abbott are wise public health policies is up for debate. But since they are up for debate, it should be the people in the legislatures, not the judiciary, debating and deciding. The Fifth Circuit rightly judges that “The court may not replace legislative predictions or calculations of probabilities with its own, else it usurps the legislative power.” It echoes back to another opinion, the minority opinion of Justice White in Danforth:
That [test of rational basis] should end our inquiry, unless we purport to be not only the country’s continuous constitutional convention but also its ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.
Recent actions of the Court give mixed signals on how the justices would rule in this case. In the last Supreme Court abortion decision on abortion, Gonzales v. Carhart (2007), the Court acknowledged that it “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientiﬁc uncertainty,” and determined the federal ban on partial birth abortion was constitutional. More recently, the Supreme Court denied Planned Parenthood’s application to “vacate the stay” on Texas H.B. 2, effectively letting the law go into effect until it was ruled on by the Fifth Circuit. (It was in his dissent from this denial that Justice Breyer wrote “I believe, that at least four Members of this Court will wish to consider [P.P. v Abbott] irrespective of the Fifth Circuit’s ultimate decision.”) But the Supreme Court has also recently denied certiorari in the case striking down an Oklahoma ultrasound law (Pruitt v. Nova), and an Arizona ban on abortions after 20 weeks (Horne v. Isaacson). The decision will probably rest with Justice Kennedy, who wrote Gonzalez and abstained in Abbott.
In staying out of the legislative fray in Planned Parenthood v. Abbott, the Fifth Circuit humbly recognized the limits of its due process jurisdiction. Now it’s up to the Supreme Court to do the same.