Whole Woman’s Health v. Cole is perhaps the most closely-watched petition for a writ of certiorari currently pending before the Supreme Court. It poses the question whether the U.S. Court of Appeals for the Fifth Circuit erred in upholding two provisions of a restrictive Texas abortion law--one that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of where the abortion is performed and another that requires that any facility at which abortions are provided satisfy the standards for "ambulatory surgical care" centers. Pretextually written so as to appear to promote the safety of abortions, the provisions have the purpose and effect of making it (more) difficult for women to obtain abortions in Texas.
In my view, the Court ought to grant cert and, after briefing and argument, reverse. As Linda Greenhouse and Reva Siegel argue persuasively in a forthcoming article in the Yale Law Journal, the challenged provisions of the Texas law are flatly inconsistent with the fundamental distinction the Supreme Court drew in 1992 in Planned Parenthood v. Casey when it reaffirmed the “central holding” of Roe v. Wade: Although the Court allowed that laws that aim to inform a woman’s decision whether to have an abortion would be judged under a somewhat looser standard than in the post-Roe pre-Casey era, laws that only impede that decision—as the ambulatory surgical center requirement and the admitting privilege requirement do—are, ipso fact, unconstitutional undue burdens.
There are nonetheless three sorts of obstacles to the Court’s granting cert. As I shall explain, however, none of them should stand in the way of a cert grant.
The first obstacle is mostly psychological. Abortion is a divisive issue for the Justices, in much the same way as it is for the American people. They don’t like hearing abortion cases because such cases raise the level of inter-personal tension among them. It is much easier for the Justices to agree to disagree on matters where the emotional stakes are lower (such as the dormant Commerce Clause, say).
The fear of inter-personal tension is not, however, a good reason to deny cert in an abortion case (or any case). Moreover, this is hardly the only subject area that makes the Justices testy. Recent years have seen barely disguised fits of pique (mostly but not exclusively by Justice Scalia) on questions involving the Affordable Care Act, immigration, race-based affirmative action, voting rights, and more. Chief Justice Roberts has largely failed in his effort to reduce the temperature at the Court. An abortion case might make matters worse, perhaps, but only marginally.
Second, both conservative and liberal Justices may be fearful that granting cert will lead to the “wrong” result because they are uncertain how Justice Kennedy will vote. Presumably this is a bigger worry for the liberals in this case, as denying cert would leave the Fifth Circuit’s upholding of Texas’s restrictive law in place. But the liberal Justices oughtn’t to be fearful.
To be sure, Justice Kennedy parted with the liberal wing of the Court in the two post-Casey “partial-birth” abortion cases: Sternberg v. Carhart and Gonzales v. Carhart. But neither of those cases involved the core of Casey. They concerned the standard for evaluating medical necessity and issues of vagueness, not the meaning of undue burden. And perhaps more importantly, they involved second- and third-trimester abortions, whereas the Texas law restricts all abortions. As Greenhouse and Siegel explain, fidelity to Casey’s core requires the invalidation of the Texas provisions, and nothing in the last 23 years indicates that Justice Kennedy has reconsidered Casey’s core.
Third, a tremulous law clerk writing a cert pool memo might worry that he or she would look foolish if, after successfully urging the Court to grant cert, there turned out to be a “vehicle problem”—i.e., that some procedural peculiarity of the case prevented the Court from reaching the merits. The Court might then have to “DIG” (dismiss as improvidently granted). Here, a superficial examination of the Fifth Circuit opinion might give the appearance of a vehicle problem, because the appeals court treated claim preclusion as an alternative ground for the ruling.
Yet there is no vehicle problem. On the contrary, as argued in an amicus brief on behalf of civil procedure/con-law/federal courts professors Yours Truly, Helen Herskoff (NYU), Gillian Metzger (Columbia), Neil Siegel (Duke), and David Strauss (U Chicago), far from containing a vehicle problem, Whole Woman’s Health presents a vehicle opportunity. The case provides the Court with the opportunity to clarify the interaction between claim preclusion and facial challenges.
The Fifth Circuit made a fundamental error that is perhaps understandable (but an error nonetheless) in light of the sloppy language that one sometimes sees around facial challenges. Having first adjudicated the plaintiffs’ pre-enforcement facial challenge to two provisions of the Texas law (including one that is now under challenge, the admitting provisions requirement), the appeals court treated that earlier judgment as forever barring any additional facial challenges, even to a provision that was not challenged in the first case (the ambulatory surgical center requirement).
In some sense, that's a familiar move. Unlike issue preclusion, which only bars relitigation of issues actually litigated, claim preclusion has a use-it-or-lose-it quality: Claims that could have been but weren't raised in the initial litigation may be lost on that ground. But the fact that a provision appears in the same statute as a provision challenged in an earlier lawsuit does not necessarily mean that a challenge to one must include a challenge to the other--especially when a legislature enacts a complex regulatory scheme. As we argue in our brief: "Omnibus legislation does not require omnibus litigation." It would be perverse to hold otherwise, as lawyers would feel obliged to challenge provisions that they thought they might, at some future time, wish to challenge, for fear of losing the ability to do so.
There are other difficulties with the Fifth Circuit's preclusion analysis as well, as discussed in our brief and in the petition itself. Here I'll conclude by noting that the Fifth Circuit may have been misled by a common but mistaken picture of facial litigation as akin to the sort of pre-enactment "abstract" review that some European (and other) constitutional courts conduct of statutes as a whole. There is no such power in Article III courts and facial challenges are not even the closest thing we have to a rough approximation of that power. The closest thing we have is the anticipatory challenge for either injunctive or declaratory relief after a law is enacted but before it goes into effect. An anticipatory challenge can be facial or as-applied (or both). Further, a facial challenge can be based on a factual record.
In general, as my work, the work of Harvard Law Professor Richard Fallon, and the work of others aims to show, facial challenges are not that sharply different from other kinds of lawsuits. The Supreme Court case law in the last several decades has sometimes usefully noted that the main distinction is remedial and that even there the distinction isn't that sharp. But enough confusion exists that the Court ought to take the case to clarify.
And that's not even counting the main reason the Court should grant cert: Because the Fifth Circuit wants to allow the nation's second most populous state to deny thousands of women their constitutional right to abortion.