Friday, September 19, 2014

Sometimes Legislative Purpose is Clearer than the Effects of a Law

by Michael Dorf

Ever since Roe v. Wade in 1973, pro-life politicians at the state and federal level have sought to undermine the abortion right in two main ways. First, by enacting new abortion restrictions and making their voices heard in the judicial selection process, they seek to have Roe overruled or, failing that, substantially weakened. Second, they have enacted laws and policies that do not curtail the right in principle but make it substantially more difficult to exercise. A recent piece by Jeff Toobin in The New Yorker calls attention to both strategies in the context of a case challenging a Texas statute now before the US Court of Appeals for the Fifth Circuit. The law requires that abortions be performed in ambulatory surgical centers.

Toobin is a gifted popularizer but, as I have noted before, his knowledge of constitutional law is not very deep, and this latest piece shows it. He says that Justice O'Connor "almost single-handedly . . . rewrote abortion law," citing the 1992 decision in Planned Parenthood v. Casey. But the lead opinion in that case (a majority on some points, a plurality on others) was highly unusual in that it was jointly authored by Justices O'Connor, Kennedy, and Souter. This is the opposite of acting single-handedly. To be sure, O'Connor's name appears first on the lead opinion, but only because, pursuant to the Court's customs, she was the most senior of the three co-authors, followed by Kennedy, then Souter.

Toobin appears to compound his error in attribution of authorship by also misreading the substance of the Casey opinion in one important way: He says that in Casey the majority adopted O'Connor's position, but in fact, the "undue burden" test the majority announced in Casey differed subtly from the test that Justice O'Connor had been previously championing under the same name. The most important difference is that the Casey joint opinion announced that abortion regulations with the purpose or effect of placing substantial obstacles in the way of a woman seeking an abortion would be invalidated. That purpose prong made the joint opinion undue burden test more rigorous than the version that Justice O'Connor had previously championed.

Perhaps because Toobin does not realize what was distinctive about the Casey test, he treats the phrase "purpose or effect" as a kind of undifferentiated whole. Thus, even though he is critical of post-Casey decisions by the SCOTUS and the lower courts that appear to cut back on the abortion right, he appears to miss what should be obvious: that the debate over just how substantial an obstacle must be before it amounts to an undue burden should be quite unnecessary to decide these cases. Laws like the Texas provisions before the Fifth Circuit--and like the Mississippi one invalidated last month in a ruling discussed by Professor Colb in a Verdict column--are obviously unconstitutional because they have the purpose of making it harder for doctors to provide abortions, and thus for patients to obtain them. The medical safety justifications recited by the legislators who vote to enact these laws and the government lawyers defending them are pretextual. As Professor Colb notes, the Fifth Circuit appears to be simply ignoring the purpose prong of Casey.

Now it might be objected that legislative purpose tests are a bad idea. Both liberal and conservative justices have sometimes made this point in objecting to purpose tests. For example, here is Justice Scalia objecting to a purpose test under the Establishment Clause in his dissent in Edwards v. Aguillard:
[D]iscerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.
To which one is tempted to say (after shaking his or head over "mad at his wife"), well, yes, subjective motive inferred from direct evidence of subjective motive will frequently appear indeterminate, but motive can often be inferred from what a law objectively does, as in Aguillard itself. Justice Scalia credulously accepted the Louisiana legislation's assertion of a purpose to promote "academic freedom" in a law that forbade the public school teaching of evolution unless "creation science" was taught alongside it. Because creation science is an oxymoron, it should have been obvious--and in fact was obvious to the majority in Aguillard--that the legislature's actual purpose was to advance a religious view.

Likewise with the hospital admitting privileges requirements and similar recent regulations that specifically target abortion services, but notably do not target other medical procedures that involve equal or greater medical risk. As is so often true in an age when news operations are being slashed, a comedic take gets closest to the truth, in this instance a July story in The Onion titled New Anti-Abortion Legislation Requires Doctors to Scale 18-Foot Wall Surrounding Clinic. Among the made-up quotations attributed to the (actual) governor of Mississippi is this: “Any physicians lacking the necessary upper body strength to pull themselves up and over an 18-foot wall have no business performing such a potentially dangerous procedure.”

So far as I'm concerned, nearly all of the real cases can be decided on a know-it-when-you-see-it basis, but if one wants to be a bit more rigorous about the matter, one can apply some sort of means-ends scrutiny. If there is no good reason to require hospital admitting privileges or an ambulatory surgical center for abortions but not for other procedures with comparable medical risks, then a court should be able to infer that the purpose of such laws is to burden the abortion right and invalidate them under Casey's purpose prong.

If the concern is one of judicial competence, it would appear that judges are sometimes better positioned to determine that a law serves an improper purpose than to determine that its effects exceed some threshold of impermissible harm. To determine the former, they need only examine the face of the law and take evidence on whether the law can reasonably be expected to materially advance permissible purposes (such as health) as opposed to using such permissible purposes pretextually with the goal of restricting abortions. By contrast, cases under the "effects" prong of the Casey undue burden test have often seen courts go down rabbit holes trying to figure out which effects to count and how to measure them.

19 comments:

Joe said...

I agree that an invidious purpose can be objectively determined generally speaking in these cases.

The DOMA case also used similar language -- "strong evidence of a law having the purpose and effect of disapproval of that class" -- and some to me fatuously (Scalia included) made this out to be some sort of guess work.

Only the willingly confused was not aware of what was going on there. The case turned on the legitimacy of the action, not what they were doing.

As to "undue burden," it welcomes some confusion, but yes, if we reasonably apply the test, many a TRAP law should fall. The 72 hour waiting period law that just past, with one clinic in the state and an existing 24 hr law in place, in a leading example.

OTOH, at least in respect to the abortion right, a 24 hour waiting period in a location with many clinics might hold under the weaker than Roe "undue burden" test though it might not rightly applied when a state only has one clinic in various instances.

Joe said...

P.S. As Stevens noted in his partial dissent in Casey, the waiting period law can be seen as an illegitimate act of gender discrimination, independently of the liberty interest involved in the abortion decision.

Sam Rickless said...

It seems to me that the danger of inferring purposes from legislative texts and their contexts is well illustrated here. It's not at all clear to me that the purpose of the LA law was to "advance religion". Maybe I'm being picky, but it seems to me that LA legislators were more likely interested in preventing discord in the homes of Biblical literalists who think that evolution is inconsistent with the word of God. Biblical literalist parents are scared that their children will come home saying that evolution is true, from which they will then conclude that Biblical literalism is false. If "creation science" is taught alongside evolution, this is less likely to happen. This may have the effect of advancing religion, but it's not clearly it's purpose.

As for evidence of pretext, this is going to happen clearly only when the state does something irrational in relation to its own publicly stated purpose: "whereas Texas is interested in protecting the health of pregnant women who choose abortion,..." But if there is no such publicly stated purpose, eg in a preamble, it's going to be really really difficult to identify an invidious purpose.

I really prefer focusing on whether the burdens on the exercise of a right are significant enough to justify invalidation.

Neil H. Buchanan said...

I know that this is beside the point, but I did a spit-take at this part of the Scalia quote: "... or he may have been pressured to vote for a bill he disliked by a wealthy contributor." But, per Citizens United, that's OK.

Joe said...

As Justice White, who was a lot more lax when applying the EC than other justices, noted in his separate opinion, the lower courts found an illegitimate purpose looking at the matter as a whole.

The possibility that the text alone might suggest another purpose isn't enough. It has to be looked at as a whole. The possibility suggested still is a matter of limited concern for the discord of those with a certain belief. At any rate, that wasn't the purported purpose.

Purpose also very well might not be the best bet but it rarely is the only thing we have to work with anyway.

Rick said...

I have never thought of Tobin as a serious or credible scholar in any area of the law. Anyone who uses Tobin as a source of constitutional knowledge does so at their own peril. As a legal analyst/political pundit/pop-culture commentator on television, Tobin’s superficial legal pontification is arguably even more misleading and dangerous than an outright misstatement of the law.

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Emma O'Connell said...

they have the purpose of making it harder for doctors to provide abortions, and thus for patients to obtain them. The medical safety justifications recited by the legislators who vote to enact these laws and the government lawyers defending them are pretextual. As Professor Colb notes, the Fifth Circuit appears to be simply ignoring the purpose prong of Casey.Cheap FIFA 15 Coins
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