Wednesday, June 29, 2016

The Wages of Guerrilla Warfare Against Abortion

 by Michael Dorf

My latest Verdict column tackles the procedural issues in Whole Woman's Health v. Hellerstedt. The dissenters say that the procedural obstacles to the plaintiffs' case are so great that the majority's decision to reach the merits can only be explained by a set of special relaxed procedural rules for plaintiffs challenging abortion regulations. I explain why this claim is false.

I chose to write about the procedural aspects of the case because I had already opined about the substance, both to reporters (e.g., here) and in my own contribution to a SCOTUSblog symposium. I'm sure I'll have more to say at a later point, but for now I'll just republish the SCOTUSblog piece. Here it is:

The Wages of Guerrilla Warfare Against Abortion

During the oral argument last year in Glossip v. Gross, Justice Samuel Alito accused the lawyers arguing that Oklahoma’s lethal injection protocol was unconstitutional of trying to take advantage of a “guerilla war against the death penalty” by pressuring companies to make tested drugs unavailable and then challenging the untested substitute drugs as too risky. Alito apparently believed that the case against lethal injection was pretextual, that the real target was capital punishment itself. Because neither he nor the other four Justices in the Glossip majority were willing to invalidate the death penalty itself, they were not inclined to take seriously the arguments that the Oklahoma protocol was unconstitutional either.

Something similar happened in Whole Woman’s Health v. Hellerstedt. The challenged provisions of the Texas law known as HB 2 were defended by the state and pro-life activists as promoting the health of women seeking abortions. On their face, that was a just barely plausible claim. The requirement that a doctor performing abortions have admitting privileges at a nearby hospital seems related to health. So does the requirement that abortion clinics satisfy the state’s regulations for ambulatory surgical centers.

      But everybody knows that the Texas legislators who enacted HB 2 did so to limit abortion – not because they think abortions pose unacceptable health risks to women but because they think that abortion is immoral. HB 2 and similar legislation in other states that impose onerous restrictions on abortion facilities in the name of women’s health operate as guerilla warfare against abortion itself. Accordingly, Justices who believe that the Constitution protects a right to abortion were understandably inclined to view HB 2 skeptically, just as the Justices who believe that the Constitution permits the death penalty were likely to view the Glossip challenge skeptically.

In comparing Whole Woman’s Health to Glossip, I do not mean to suggest anything like precise equivalence. For one thing, as a recent Radiolab podcast explores, pharmaceutical companies themselves, rather than anti-death penalty lawyers, may be chiefly responsible for the unavailability of the previously used drugs. Moreover, even the old protocols are problematic, sometimes leading to hideously painful botched executions. And even if one thinks that there has been a guerilla war by anti-death penalty lawyers to render relatively safe lethal agents unavailable, that hardly justifies the ultimate decision in Glossip upholding the Oklahoma protocol, because condemned inmates should not be tortured as a means of disciplining anti-death penalty lawyers.

      Meanwhile, one does not need to question the motives of the Texas legislature to reach the result that the Court reached in today’s decision. The very first sentence of Justice Stephen Breyer’s majority opinion quotes the plurality opinion in Planned Parenthood v. Casey for the proposition that a law restricting pre-viability abortion is invalid if it has the “purpose or effect” of placing a substantial obstacle in the path of a woman seeking an abortion (emphasis in original). Yet the opinion does not in any way seek to uncover evidence of an illicit subjective motive on the part of the Texas legislature. It doesn’t need to. Despite the superficial connection to health, upon inspection, the challenged provisions of HB 2 bear no actual relation to women’s health.
      To show that the Texas law does not promote women’s health, Breyer’s opinion relies heavily on the findings of fact by the district court. The evidence is overwhelming. As a statistical matter, abortion is substantially safer than various other procedures that are not subject to either the admitting-privileges requirement or the surgical-center requirement. Indeed, these requirements are downright perverse.
      For example, Breyer explains that doctors whose practice consists chiefly of performing abortions will not be able to meet the admitting-privileges requirement, because hospitals only confer such privileges on doctors who regularly see patients in the hospital. Yet because abortion is so safe, such doctors almost never bring patients to the hospital. The very safety of abortion precludes satisfaction of a requirement that is justified on the ground of protecting women from the supposed risks of abortion.
If the unconstitutionality of HB 2 should be clear even if one does not begin with skepticism of the Texas legislature’s motives, then why wasn’t today’s decision unanimous? Because the dissenting Justices think the Court’s abortion jurisprudence fundamentally misguided. They were thus inclined to view a challenge to any abortion regulation unfavorably.

      The dissenting Justices today purported to apply the cases that find and define the abortion right, but they did so uncharitably. For example, Justice Clarence Thomas objected that whereas the Court in Casey had evaluated whether a law imposed an undue burden by looking to its impact on women seeking abortions, today’s majority sought to balance each legal provision’s burden against its supposed health benefits. Such balancing, Thomas said, was ruled out by Casey. But this is a strange objection. Even if Casey can be read to say that a law’s benefits are irrelevant to whether its burdens are due or undue, it certainly should not be read that way. Implicit in the very notion of an “undue burden” test is some comparison of costs and benefits. Only a Justice who is hostile to abortion rights could think otherwise.

Taken together, Glossip and Whole Woman’s Health may hold lessons for both litigators and legislators. In each case, lawyers whose real goal may have been much broader – abolition of the death penalty in one case, overturning Roe v. Wade in the other – made ostensibly narrow arguments within the existing legal framework. They succeeded in signaling to their allies on the bench which side they were on. Thus, in Glossip, Breyer wrote a dissent urging that the constitutionality of the death penalty itself be reconsidered. Likewise, in today’s case, Thomas repeated his view that abortion is not a constitutional right. But in each case, the lawyers failed to persuade Justices on the other side to rule for them on narrow grounds.

That should not be surprising. Justices know where they stand on ideologically fraught issues like the death penalty and abortion. Lawyers should be on notice that Justices cannot be tricked into ruling against their druthers, at least if the law leaves any wiggle room at all.

Meanwhile, legislators who seek to resist a regime of constitutional doctrine should also be put on notice that passing pretextual laws is risky. Even when they do not strike a law down based on the lawmakers’ illicit motives, the Justices will see through such motives.

For years, the pro-choice movement has argued that abortion restrictions are against women’s interests. More recently, pro-life activists and legislators have sought the enactment of restrictive abortion laws while claiming that such laws protect women from abortion. Today’s decision shows the limits of this approach as a legal strategy.

Still, one should not expect the so-called woman-protective rationale for abortion restrictions to disappear, even if laws enacted under this rationale continue to be struck down by courts applying today’s decision. The argument that abortion must be regulated because abortion harms women was never entirely a legal argument. It was also an effort to persuade the public that the anti-abortion movement is not anti-woman. With one vacancy already on the Court and a presidential election featuring a pro-life man against a pro-choice woman, the battle for public opinion about abortion is also, ultimately, a battle for the meaning of the Constitution.


egarber said...

Sorry about my ignorance, but I have two questions:

1. Can you briefly describe the difference between claim preclusion and appeal? Is it that the former relates to an attempt to re-litigate, while the latter is challenging the lower court's approach, etc.? Basic stuff for lawyers, I know. But alas...:)

2. Are standing rules exclusively a judicial domain at the federal level? Or can Congress squeeze my ability to challenge a law by controlling the definition in some way?

Michael C. Dorf said...

1. Claim preclusion applies when a party has litigated a case already, including any appeals he may have taken, and then files a new case.

2. Congress can limit standing in statutory cases. The extent of Congress's power to limit standing in cases challenging laws as unconstitutional is highly controversial and the subject of one of the most famous (and confusing) law review articles ever: Henry Hart's 1953 "The Power of Congress to Limit the Jurisdiction of the Federal Courts," which is written in the form of a Socratic dialogue. Congress can expand standing, but there are limits to how far, as indicated in this Term's Spokeo case, which I discussed at

Hashim said...

Mike: Doesn't the Anderson-Burdick analysis of voting restrictions under the 1A/EPC operate the same way as Justice Thomas suggested that Casey operates? Namely, that in the absence of a significant burden on the pltf, there's no burden-benefit balancing at all, beyond the bare minimum of assuring that the State has a rational and legitimate regulatory interest? Do you think the SCt in Anderson-Burdick was hostile to the right to vote? Isn't a more charitable interpretation -- especially in the context of an unenumerated right like abortion -- that courts shouldn't impose burden-benefit balancing on legislatures in every case since that would too deeply intrude on legislative policymaking, and thus instead should limit such intrusive review to cases where there's a significant burden.

Joe said...

Roe v. Wade had the now discontinued "trimester" approach where second trimester abortions could be regulated for health reasons. But, soon enough, it was clear that this basically meant abortion specific rules, since neutral health regulations (given its a medical procedure) including all abortions being done by a doctor was accepted throughout pregnancy.

Abortion procedures in various cases warrant specific regulations tied to the specific procedure but if anything over time most abortions need less regulations (such as special needs for hallway size) than many other procedures. TRAP laws (one person at SCOTUSBlog where Prof. Dorf has an entry on this case snidely spoke of that label, but given his presence at a Catholic blog, the person should appreciate honesty) are problematic given their tendency to not be concerned neutrally about health. They can actually burden health in the long run. They are basically backhanded regulations to further protection of embryonic/fetal life.

Sam Rickless said...

"Implicit in the very notion of an “undue burden” test is some comparison of costs and benefits. Only a Justice who is hostile to abortion rights could think otherwise." I respectfully disagree. An undue burden is excessive relative to some standard, but doesn't involve explicit or implicit reference to benefits. Requiring someone to think very carefully, say 24 hours, before she makes any sort of public criticism of a law might bring great benefits to her and others, and yet be undue, because excessively disrespectful. As I recall, there was no balancing in Casey, none at all. Justice Breyer should have stuck to the question of whether HB2 would have made it excessively difficult for women in rural areas to obtain abortions in Texas. The clear answer, given the facts in the record, is that it would have. The fact that HB2 doesn't benefit women seeking to obtain abortions is relevant to the question of bad faith on the part of the Texas legislature, but not to the undue burden test. Justice Breyer muddied the waters, turning what should be a question about the circumstances under which government should be permitted to make it very difficult to exercise a fundamental right into a purely consequentialist investigation, with the answer determined by comparing costs and benefits. This is bad moral theory, and bad jurisprudence, in part because it really does distort precedent.