Is Texas Trying to Outlaw Abortion by the Back Door?

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Protesters demonstrate March 2 in front of the U.S. Supreme Court on the morning that the court took up a major abortion case focusing on whether a Texas law that imposes strict regulations on abortion doctors and clinic buildings interferes with a woman's constitutional right to end a pregnancy. Kevin Lamarque/Reuters

This article first appeared on the Dorf on Law blog.

During the Supreme Court oral argument on March 2 in the Texas abortion case, one prominent issue was the actual impact of the challenged Texas laws, which require that abortion providers have admitting privileges within a nearby hospital and that facilities where abortions are provided, even by pill, be equipped as ambulatory surgical centers, or ASCs (i.e., mini-hospitals).

Would these laws, if permitted to go into effect, significantly reduce the number of abortion providers available to women in Texas and thus, for a large number (or, if you prefer, a substantial percentage) of such women, pose a substantial obstacle to obtaining an abortion?

Justice Elena Kagan pointed to what she called an almost "perfect controlled experiment" that occurred during the two-week period that the ASC requirement was not enjoined: 12 clinics closed, and when the law was enjoined, they reopened. In addition, there was substantial evidence in the record from which the district court inferred cause and effect.

To be sure, it's possible that this was simply a matter of timing. Perhaps complying with the ASC requirements imposes startup costs and necessitates changes—such as retrofitting existing buildings or leasing new space—but after some period of adjustment, abortion providers would be able to comply.

Put differently, if the ASC requirement had been in effect for two years rather than for just two weeks, maybe at the end of those two years the clinics would have reopened even if the law were not enjoined. In the meantime, the law would have burdened women's right to abortion, but after the adjustment period, it no longer would.

If that's true, then one might think that the problem with the ASC requirement is that it didn't include a phase-in period, but with such a period, it would be constitutional.

Justice Anthony Kennedy appeared to be thinking along these lines when he asked Solicitor General Donald B. Verrilli (arguing for the U.S. as an amicus curiae supporting the plaintiffs) whether a district judge would have the equitable power to enjoin the Texas law for 2½ or three years so that women don't have their rights violated, but at the end of that period the judge would evaluate whether the law is burdensome beyond the startup period.

The solicitor general ducked the question, and the argument then veered off in a different direction. That's too bad, because the question is relatively easy to answer. A district court does have that power, but it would be unwise to exercise the power.

Given the premise of the question—that the ASC requirement is at least a temporarily unconstitutional imposition—of course a district judge could enjoin it. And if it turned out that the ASC requirement really was only a temporary burden, then yes, it would be appropriate to lift the injunction if and when the clinics satisfied the ASC requirement. But the premises of the exercise are problematic.

First, it is hardly clear that the enjoin-and-experiment approach would generate real information. Complying with the ASC requirements is expensive. If the directors of an abortion facility know that failure to satisfy the ASC requirements at the end of the 2½- or three-year period would excuse them from having to comply at all, they will have no incentive to make the effort to comply. In other words, the state ought to object to this proposed experiment.

Second, and more fundamentally, a requirement that abortion providers spend potentially millions of dollars throughout the state to bring their facilities up to ASC levels would itself be an undue burden.

That money has to come from somewhere, and the most likely place is patient care. Abortion access would be reduced as the abortion providers diverted funds from patient care to widening corridors and making other structural changes to their facilities.

Why would that burden be "undue"? Because there's no good reason for abortion providers to have to satisfy the requirements of an ASC (or the admitting privileges requirement).

Throughout the oral argument, Chief Justice John Roberts and the lawyer for Texas repeatedly contended that the question of whether a burden is "undue" depends only on the size of the burden, but this defies both common sense and the case law.

Here's a common sense example. Requiring someone to pass a driving test to obtain a license to drive is a reasonable burden; requiring someone to pass a driving test in order to purchase movie tickets is undue. Whether a burden is "due" or "undue" rather obviously depends on the reason for which it is imposed.

Nonetheless, the chief justice contended that when the Supreme Court said in Planned Parenthood v. Casey that a law is an undue burden if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion, it did not require any inquiry into legislative purpose. According to the chief justice, so long as there is a rational basis for thinking that the Texas law could be a health measure, its purpose must be accepted as directed at health.

That's wrong. All laws are subject to at least the rational-basis test, so Roberts's approach would render the purpose prong of Casey completely superfluous. And indeed, as I noted in my SCOTUSblog preview of the case, it was the dissenters in Casey who argued for the rational-basis test. The plurality (in an opinion authored jointly by Justices Sandra Day O'Connor, Kennedy and David Souter) instead said this: "Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." (Emphasis added.)

Yet with that, Roberts would have us believe that the Casey plurality really meant that the joint opinion agreed with the Casey dissenters that there is no such thing as an unnecessary health regulation. At least give the chief justice points for chutzpah.

There really is nothing to this case other than the question of whether to overrule Roe and Casey. Assuming that the answer to that question is no, the challenged Texas provisions are invalid.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org.