Travis Weber, J.D., LL.M.
June 28, 2016
Once again, we saw the “abortion distortion” at work in our nation’s high court. The majority opinion first distorted the law governing whether a claim should be procedurally barred in order to let these claims against the Texas law proceed, then it distorted its own abortion jurisprudence governing whether there was actually an undue burden here to find one where one doesn’t exist. The majority went out of its way to support a lower court’s basis for striking down the law (and in doing so, tried to give courts authority to interfere where they shouldn’t), when it actually should have simply deferred to the legislature. The majority’s opinion leaves the state of abortion law more muddled than ever. As Justices Thomas and Alito (joined by Chief Justice Roberts) pointed out in dissents, there can be no doubt that our nation’s high court simply does not apply the law fairly and neutrally when it comes to the issue of abortion. This can only serve to discredit it as an institution.
Justice Breyer wrote the majority, joined by Justices Kagan, Ginsburg, Sotomayor, and Kennedy. In its opinion, the Court bent the typical rules governing claim preclusion to permit the claims against HB 2 to proceed, then even bent its abortion jurisprudence a fair bit to conclude they imposed an undue burden on a woman’s constitutional “right” to obtain an abortion.
Claims not procedurally barred
The first issue was whether any of the plaintiffs’ claims were procedurally barred under res judicata, a doctrine which prohibits raising the same claim if it has already been raised by the party to the case. The Court said they were not. The Court first held that the plaintiff’s admitting privileges claims were not barred because changed circumstances made the claims raised in this case different than those raised in an earlier case challenging the Texas statute (a dubious holding). It also held that the surgical center claims were not barred even though they were not raised in the earlier case because they were based on a different portion of the statute (also dubious).
The Court began by laying out its standard: “We recognize that the ‘State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.’ Roe v. Wade, 410 U. S. 113, 150 (1973). But, we added, ‘a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’ Casey, 505 U. S., at 877 (plurality opinion). Moreover, ‘[u]nnecessary 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.’ Id., at 878.”
The justices held that neither the admitting-privileges nor surgical-center requirement “offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion),” and thus “each violates the Federal Constitution. Amdt. 14, §1.”
The Court of Appeals had held that (1) the courts should not consider and balance medical benefits against the burden when applying the undue burden standard (but rather just look at the burden issue), and (2) a standard of lower constitutional scrutiny should apply to abortion issues. The majority in Hellerstedt reversed the Court of Appeals on both these points.
Undue Burden – Admitting Privileges Requirement
The Court heavily deferred to the determinations of the district court (and affirmed the ability of courts in general to make such determinations) on these issues, and claimed that courts can resolve questions of medical uncertainty—not just legislatures. The Court held that courts can and should balance the medical benefits of a law against its burdens.
The Court found that the evidence in the record indicates that the admitting privileges requirement places a “substantial obstacle in the path of a woman’s choice” (quoting Casey). The Court again deferred to district court findings that facilities were closing at the time the law began to be enforced, which meant women had to travel further to obtain abortions, and there were fewer doctors (doctors were also unable to obtain admitting privileges for reasons unconnected to their ability to perform medical procedures), longer wait times, and more crowded facilities. Taken together, and viewed in light of the absence of a health benefit, this list of effects causes an undue burden.
The Court also noted the statute here does not have legislative findings, which weighs in favor of a court having to scrutinize findings more carefully, and heavily deferred to the district court’s evaluation of the evidence—and concluded it found nothing in the record “that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.”
The government argued facilities may have closed for reasons unrelated to this law, but the Court found that that the plaintiffs had “satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures.” When faced with the example of Gosnell, the Court said “there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.”
Undue Burden – Surgical Center Requirement
Again, the Court deferred to the district court and found that the health and safety concerns are not advanced by the surgical center requirement, especially in light of the existing regulation imposed by Texas. The Court credited evidence and deferred to an expert witness at the district court level, and found that many of the law’s requirements were not necessary to regulate abortion, and had the additional effect of placing a substantial obstacle in the face of a woman’s ability to obtain one by making them travel further and disrupting the medical care they would receive. In making these findings, the Court recognized it assumed that medical facilities operate at or near full capacity, and credited what it viewed as “commonsense inferences” by the district court. The court held that Texas had not shown that remaining facilities could accommodate many more women.
In essence, the Court nitpicked the evidence for ways Texas had not perfectly shown HB 2 would advance women’s health, and even when it had shown health benefits, claimed the burden outweighed these benefits (and the law was thus unconstitutional).
The Court rejected the argument that facial invalidation was precluded by the law’s severability clause. It also rejected Texas’ argument that the law did not impose a substantial obstacle because the number of women affected by the law is not a “large fraction” of Texan women of reproductive age. The Court finally rejected Texas’ argument, based on Simopoulos v. Virginia, that surgical center requirements could be applied to second-trimester abortions. The Court noted this was before Casey, which discarded the trimester framework.
Justice Ginsburg concurred, focusing on the claim that child-birth and other medical procedures are “far more dangerous” than abortion, and yet not subject to the requirements Texas attempts to impose here. “Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’ Planned Parenthood of Wis., 806 F. 3d, at 910. When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.”
Justice Thomas criticized the majority for “perpetuat[ing] the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion.”
Quoting Justice Scalia, he said this decision “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’ Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting).”
Thomas continues, “[u]ltimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.”
He criticizes third-party standing, which permits plaintiffs to sue on behalf of others (and which permitted the claims to be brought in this case in the first place). He observes the Court has made special exceptions for this doctrine in the case of abortion, noting: “There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it ‘involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,’ Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others.”
Even under Casey, Justice Thomas notes that the majority alters the undue burden test here by (1) telling courts to balance burdens and benefits of the law instead of just assessing the burden, by (2) making their own medical assessments as opposed to deferring to the legislature, which is permitted to enact a law in the face of a debate within the medical community (Stenberg, supra, at 971 (KENNEDY, J., dissenting) (“the right of the legislature to resolve matters on which physicians disagreed” is “establish[ed] beyond doubt”), and by (3) scrutinizing laws for more than a reasonable relation to a legitimate state interest even when the law does not impose a substantial obstacle to obtaining an abortion (“Where [the State] has a rational basis to act and it does not impose an undue burden,” this Court previously held, “the State may use its regulatory power” to impose regulations “in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” Gonzales, supra, at 158 (emphasis added)).”
Justice Thomas criticized the majority for writing an opinion without any clear standard, which will “mystify” lower courts trying to figure the matter out. The Court merely highlights certain parts of the record, and announces that there is an undue burden. In Justice Thomas’s view, this opinion looks like it’s applying the strict scrutiny standard that Casey had rejected.
He proceeds to criticize the Court’s seemingly ad-hoc application of different standards of review, based on the Court’s preference for the issue, which leads to unpredictability among other issues: “Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slipop., at 20)).”
Thus, “[t]he Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.”
Indeed, the Court’s preference for special rights and inconsistent application of its standards to cases based on the rights at issue poses significant problems for the Court as a judicial body—this case being only one example. “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution … Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
He concludes: “Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”
Justice Alito also dissented, with Chief Justice Roberts, and Justice Thomas joining.
Claim is procedurally barred
Justice Alito first criticized the majority for bending the rules of res judicata to accommodate the claim at issue because it concerned abortion. “When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.”
In essence, the majority’s basis for permitting the claims to proceed here is weak, has holes, and has insufficient supporting authority. “The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.”
Justice Alito observed the majority failed to even address the many elements of res judicata, and in ruling that the claims here were not the same, even erred when it addressed that element!
In essence, the claims are bound together by the law’s impact on the present or future closure of facilities. The claim in this case therefore is the same, had already been raised by the plaintiffs, and therefore should be barred. It doesn’t matter that the plaintiffs have new and better evidence; this doesn’t get around the issue that the claims are the same. The new and old claims are based on the same acts and set of circumstances, and new evidence does not transform them into different claims. The authority cited by the majority—the Comment F to Section 24 of the Second Restatement of Judgments—says a claim may be a different claim, not that it always is. This leeway should be applied sparingly, in Justice Alito’s view, and the majority does not have the authority to conclude as it does. There are no new “acts” here by Texas which even could make these claims different, but only new consequences, if at all. The plaintiffs here knew what the effects of the law would be, and thus have no basis to assert their claims are now different.
The plaintiffs could have provided evidence in their first case to show that facilities would close, yet now “the Court attempts to argue that petitioners could not have shown at that time that a sufficient number of clinics had already closed. As I have explained, that is not what petitioners need to show or what they attempted to prove.”
“Even if the Court thinks that petitioners’ evidence in the first case was insufficient, the Court does not claim that petitioners, with reasonable effort, could not have gathered sufficient evidence to show with some degree of accuracy what the effects of the admitting privileges requirement would be. As I have just explained, in their first trial petitioners introduced a survey of 27 abortion clinics indicating that 15 would close because of the admitting privileges requirement. The Court does not identify what additional evidence petitioners needed but were unable to gather. There is simply no reason why petitioners should be allowed to re-litigate their facial claim.”
“In sum, the Court’s holding that petitioners’ second facial challenge to the admitting privileges requirement is not barred by claim preclusion is not supported by any of our cases or any body of lower court precedent; is contrary to the bedrock rule that a party cannot re-litigate a claim simply because the party has obtained new and better evidence; is contrary to the first Restatement of Judgments and the actual rules of the second Restatement of Judgment; and is purportedly based largely on a single comment in the second Restatement, but does not even represent a sensible reading of that comment. In a regular case, an attempt by petitioners to re-litigate their previously unsuccessful facial challenge to the admitting privileges requirement would have been rejected out of hand—indeed, might have resulted in the imposition of sanctions under Federal Rule of Civil Procedure 11. No court would even think of reviving such a claim on its own. But in this abortion case, ordinary rules of law—and fairness—are suspended.”
The majority erroneously holds that these claims are separate based on weak and inapplicable authority. In reality, these claims are based on the same bill, both impose now requirements on facilities, both seek to protect women, both challenged as imposing the same kind of burden, and are treated by the plaintiffs as a package in terms of their claim that they are trying to “shut down” abortion facilities. There is no doubt they are part of the same litigation.
No Undue Burden
Even if the claims are not barred, there is no undue burden here.
Since plaintiffs assert rights on behalf of their patients, they must show an impact on a “large fraction” of impacted women to obtain facial relief. They fail to do that. They only show that certain facilities closed, but make “little effort” to show why they did.
Justice Alito noted that this law may impact facilities, which is understandable, and even desired in the aftermath of situations like the Gosnell matter. Indeed, “the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion facilities to comply with the same regulations as ASCs.”
However, facilities may have closed because of (1) H. B. 2’s restriction on medication abortion, (2) the withdrawal of Texas family planning funds, (3) the nationwide decline in abortion demand, and (4) physician retirement (or other localized factors).
The plaintiffs could have made precise findings regarding each facility in Texas, and had the burden of proof to do so, but didn’t.
In addition, the plaintiffs simply didn’t put on any evidence of actual facility capacity as it concerned facility access. The majority let them off the hook on this point, even though this was important to determine an undue burden.
Finally, the majority failed to recognize that under Casey, traveling 150 miles is not an undue burden, and a significant majority of Texas women didn’t have to travel that far.
Justice Alito also wrote that even if the claims were not precluded, in applying the severability clause here, the law’s requirements must be held in every city in which it does not impose an undue burden.
Sadly, the Court has to again apply the “abortion distortion” to argue that the severability clause does not apply here, and invalidate the entire statute. Indeed, many non-abortion related provisions of the law are now struck down too.
He concludes: “When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.” The Court’s “patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.”