The Rules for Abortion Are Still Rules—Not Loopholes

“We are supposed to be a neutral court of law,” Justice Samuel Alito told the relatively sparse audience at the Supreme Court’s final session Monday. “When it comes to ordinary legal rules … there is no justification for treating abortion cases differently from others.” Alito’s words were the opening of an angry bench dissent from the Court’s 5-3 decision in Whole Woman’s Health v. Hellerstedt, a blockbuster win for the forces of choice.

As a lawyer, I can sympathize with Alito’s sentiment. Good old “ordinary legal rules”! Life would be great if I could just go around muttering, “A waiver of assignment also operates as a waiver of sublease,” or “A standard-form contract is construed strictly against the drafter.” But abortion cases are constitutional, not legal, cases. Constitutional law operates (as it must) under its own rules. And even within the world of constitutional cases, abortion has always been judged under special judge-made standards that bear little resemblance to maxims of the common law.

In fact, the real question in Hellerstedt—mentioned by no one on either side—was whether there would henceforth be any real rules at all when states seek to regulate, restrict, and even eliminate abortions within their borders. The Fifth Circuit had upheld the Texas statute at issue here with an opinion that in essence said, If the legislature says it wants to make women healthier, we won’t ask whether or not it’s really doing that. If the high Court had approved that rule, almost any abortion regulation would have been untouchable as long as it didn’t say, No abortions shall be allowed at all, or The purpose of this bill is to make women’s lives worse.

In an opinion by Justice Stephen Breyer, the majority (Breyer and Justices Anthony Kennedy, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) told the states that “health regulations” of abortion need to be supported by evidence showing that they actually improve, well, health. Texas—as the state’s own lawyer, Scott Keller, essentially conceded at oral argument—could show no such evidence. Though labeled a “health law,” the statute, H.B. 2, imposed rules that would provide no clear benefit to patients but would make abortion radically harder to obtain.

That plough, the majority said, won’t scour.

The two regulations at issue were: (1) a requirement that any clinic performing abortions meet all standards for an “ambulatory surgical center,” where invasive minor operations can be performed without requiring hospitalization; and (2) a requirement that any physician performing abortions have “admitting privileges”—the ability to order a patient admitted without an initial examination by another doctor—at a hospital within 30 miles of the clinic. The law was in effect for two weeks; during that time, a dozen clinics closed. Once it was stayed, they reopened temporarily; if the law took effect permanently, however, it would (according to evidence submitted to a district court in Texas) leave only seven in operation. These would be large health centers in large cities—leading, among other effects, to a 2,800 percent increase in the number of women in Texas living more than 200 miles from an abortion facility.

Abortion cases really are decided by a special rule that applies only to them—the so-called “undue burden” rule. In Casey, a three-justice plurality held that “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.” Regulations may also “express profound respect for the life of the unborn,” if they aren’t an “undue burden.” Here’s the definition of an “undue burden”: “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.”

Got that? An “undue burden” is a “substantial obstacle.” But whatever that is, the state can’t impose it on women or doctors just because it doesn’t like abortion. A regulation either has to communicate “profound respect for unborn life” or “foster the health of a woman.”

At trial in federal district court, the evidence showed that neither of the Texas regulations “foster[ed]” anything but clinic closures. “Admitting privileges” have no relation to healthy outcomes because the state already requires abortion clinics to have “working arrangements” with nearby hospitals; thus, patients needing hospitalization are already transferred smoothly to hospital care. In addition, “admitting privileges” don’t prove that doctors who have them are more competent than those who do not—the privileges are essentially an economic arrangement designed for doctors who are staff or deeply involved in a specific hospital. And, finally, complications requiring hospitalization are incredibly rare—and when they happen, they happen after the abortion, usually when a woman has returned to her home many miles away. As Breyer noted, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted there was no such evidence in the record.”

The surgical-center requirement is similarly farcical—simply because abortion isn’t surgery. It isn’t performed in a sterile field and doesn’t require a 240-square-foot operating room. The evidence at trial, Breyer wrote, showed that the requirement “does not benefit patients and is not necessary.” Many procedures—such as liposuction and colonoscopy—are far riskier but can be performed in an office. In addition, Breyer wrote: “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.”

Faced with this evidence, the trial court enjoined the law. But the Fifth Circuit upheld the requirements and laid down a profoundly cynical restatement of the “undue burden” rule. Other circuits had applied the rule to strike down similar regulations, but the Fifth Circuit now said that the medical facts—that is, whether the new requirements will actually make patients any healthier at all—are not the Court’s business. When the legislature passes a health law, “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” It was a perfect statement of what the Italians call ponziopilatismo, the sin—embodied in the New Testament by the Roman prefect Pontius Pilate, who found no fault in Jesus but allowed his crucifixion anyway—of washing one’s hands of responsibility for justice.

The heart of Monday’s opinion is the majority’s contradiction of that holding:

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.

The italics are mine, because the decision—and Kennedy’s vote for it—are very important. They announce to lower courts that they really are expected to apply the law as the Court wrote it. The rules for abortion may be special, but they remain rules. No wink-wink, nudge-nudge approach to whittling away abortion. Ginsburg wrote a short concurrence to underline that “Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.”

As noted above, Alito dissented from the bench, and with a 43-page principal dissent joined by Chief Justice John Roberts and Justice Clarence Thomas. He spends virtually none of those pages defending the Fifth Circuit’s faux rule. (Thomas wrote a separate dissent, for himself alone, defending the rule as the proper application of Casey.) Most of Alito’s dissent argued that the case should be dismissed because the same plaintiffs had lost an earlier challenge to the rules; this means, he argued, that this claim was barred by the rule of res judicata—an “ordinary legal rule” that bars parties from bringing the same claim twice. The majority noted that the earlier case had failed, in part, because the Fifth Circuit claimed the challengers hadn’t proved the regulations would lead to clinic closures. Once they took effect, the closures happened—so the challengers went back to court. Thus, Breyer wrote, this case does not present the “same claim.”

I used to teach res judicata for a living, so please believe me when I say that further explanation might lead at best to you turning to cat videos on YouTube and at worst to you experiencing profound coma or depression. I will say that both sides have good arguments—and that, in the days ahead, anti-abortion critics of the decision are likely to focus on this issue rather than to defend the Fifth Circuit’s “undue burden” holding.

That holding is indefensible. The Supreme Court’s rejection of it didn’t invent special rules for abortion. They already existed. It was a welcome and very important statement that there really are rules for abortion cases—that, at least when women’s health is involved, a wink and a nudge don’t fool a majority of the Court.