On June 27, 2016 the United States Supreme Court handed down its ruling in Whole Women's Health et al. v. Hellerstedt, one of its culminating decisions for the 2015-2016 term. By a 5-3 majority, the Court ruled unconstitutional two specific provisions of a Texas statute (House Bill 2), which was enacted in 2013 following a dramatic debate that featured a national headline-making filibuster by State Senator Wendy Davis.
The two provisions at issue were first, a requirement that physicians performing surgical or medical abortions have active admitting privileges at a hospital within 30 miles, and second, that clinics performing previability abortions meet extensive licensure standards applicable to ambulatory surgical facilities. Justice Breyer authored the majority opinion on behalf of himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg also wrote a brief, separate concurrence. Justice Alito dissented on behalf of himself, Justice Thomas, and the Chief Justice, while Justice Thomas also filed a separate dissent. The high court's ruling overturned a decision by the Fifth Circuit Court of Appeals upholding the statutory provisions.
The majority opinion represents a full-throated reaffirmation of the balancing test first set forth by the Court 25 years ago in Planned Parenthood of Southeastern United States v. Casey, 505 U.S. 833 (1992). That test calls for careful judicial review of abortion-related legislation whose stated purpose may be to protect women's health but is allegedly unnecessary, has "the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion," and thereby "impose[s] an undue burden" on the right to abortion. (Slip op. at 1)
In her concurrence Justice Ginsburg stated that "it is beyond rational belief" that the Texas law possibly could be regarded as protecting women when its impact was so obviously to reduce access to safe abortions. But rather than rely on common-sense alone, Justice Breyer did a masterful job of demolishing the state's arguments, using the extensive legal record established at trial. Indeed, the record itself underscored just how far astray the Court of Appeals for the Fifth Circuit went in placing procedural roadblocks in the way of the legal challenge and ignoring the Casey standard of review and the powerful record.
Texas is not alone in having applied hospital privilege and ambulatory surgical center requirements to abortion providers. According to the Guttmacher Institute, as of March 2016, five states maintained laws requiring physicians performing abortions to have active admitting privileges at area hospitals, and 22 states had ambulatory surgical center requirements. Although only the Texas law was before the Court, it is likely that these state laws will be overturned as well.
However, experts caution that this is hardly the end of aggressive state efforts to use the legislative process to impede abortion access, for example by restricting access to medication abortions or bans on certain types of surgical abortions. Indeed, the pace of state lawmaking aimed at curbing women's ability to obtain safe and legal abortions has been breathtaking: Between 2011 and 2015 alone, states enacted 288 laws running the full gamut of strategies to restrict abortion access.
It is worth remembering that Texas' efforts to bar abortion access coincided with its aggressive actions to curb access to contraception to disadvantaged and medically underserved women. Rather than permitting Planned Parenthood to participate as a Medicaid provider as it is required to do under federal Medicaid law, Texas eliminated its expanded Medicaid family planning eligibility program. The state also excluded Planned Parenthood from its state-funded program, an action associated with diminished access to the most effective forms of contraception among lower income women and an increase in the number of Medicaid births.
The Challenge to Texas H.B. 2 — Trial and Appeal
Within weeks of H.B. 2's enactment became law, Texas clinics brought what is known as a facial challenge—an allegation that a law is always unconstitutional, as opposed to an allegation that a particular application of the law is unconstitutional — to halt the two provisions before they could be implemented. A federal court in Texas issued an injunction, which was then vacated by the Fifth Circuit, which proceeded to uphold the legality of the legislative provisions. In so doing, the appeals court deferred to the state's claims that its laws would reduce health risks associated with medical complications from abortion and performance of abortions by "untrained or incompetent" abortion providers. The appeals court also cited insufficient evidence that the clinics could not comply with the admitting privileges requirement and concluded that in major Texas cities, securing privileges either did or would pose no problem.
One week after this decision, clinics from McAllen and El Paso filed a separate suit to stop enforcement of the admitting privileges law against them specifically. They also challenged enforcement of the surgical center requirement anywhere in Texas. Following an extended trial, a second federal trial court concluded that the effect of H.B. 2 would have a massive impact on abortion access and could not be justified as a law whose benefits outweighed its harms. The court found that the laws would nearly halve the number of licensed and operational abortion clinics in Texas.
The court also found that given the number of women of reproductive age and the fairly constant rate of abortion in the state, the remaining clinics could not possibly absorb the enormous impact of the loss of clinic capacity. Finally the court determined that were the two laws to take effect, about 2 million of the state's 5.4 million women of childbearing age would live at least 50 miles from a licensed abortion clinic, and that 750,000 would live over 200 miles from an abortion provider. According to the trial evidence, the burden fell particularly hard on rural and disadvantaged women.
The trial court further found that the laws contributed virtually nothing to health care safety for women undergoing an abortion. The evidence showed that abortion was extremely safe, overwhelmingly devoid of complications, and with "virtually no deaths occurring on account of the procedure." Indeed, the court found, abortion was far safer than other procedures "not subject to such intense regulation and scrutiny." Additionally, whatever the abortion risks might be, requiring a previability abortion to be performed at a licensed ambulatory surgical center made it no safer.
Indeed, the evidence showed that the ambulatory surgery center standards themselves were rarely applied, even for higher-risk procedures. The evidence showed that Texas either had routinely waived its ambulatory surgery center standards or else had grandfathered in non-compliant centers. The court found that the evidence showed that the expected cost of coming into compliance with surgical center requirements could exceed a million dollars for existing clinics, with the cost of building a new clinic exceeding three million dollars.
On the basis of this record, the District Court enjoined enforcement of the laws.
The state appealed to the Fifth Circuit, which stayed the trial court order. (The Supreme Court vacated this stay, meaning that the District Court injunction remained in effect during the appeal). In June 2015, however, the Fifth Circuit overturned the trial court on both procedural and merits-related grounds. On the procedural front, the appeals court held that certain claims could have been brought in the first action, the facial challenge to the H.B. 2 provisions, and therefore the principle of res judicata precluded re-litigating the same issues.
On the merits, the appeals court veered from the Casey balancing test, ruling that it was enough (as it is when fundamental constitutional rights are not at issue) that the state offered a legitimate and rational basis for its actions (protecting women's health) and therefore that no further consideration was needed. As far as the Fifth Circuit was concerned, witnesses testifying to the adverse impact of the two laws offered speculative evidence at best regarding the ability of the surviving seven or eight clinics to meet statewide needs. As far as the women in El Paso were concerned, where the only clinic would be gone, the appeals court concluded that they could travel to New Mexico for care.
The Majority Opinion
Disposing of the procedural hurdles
Justice Breyer began, as courts must, by resolving the preliminary question of whether the plaintiffs' claims were barred by res judicata principles. He concluded that the lower court had erred in this respect, since a challenge to laws on their face is very different from the changed circumstances that arise when laws are actually applied as part of an implementation and enforcement scheme. He noted that this is particularly true in situations such as this one, in which fundamental constitutional rights are at stake and the full contours of a law become clearer only when actual enforcement begins. Thus the problem of "claim preclusion" applied to neither the admitting privilege rule nor the ambulatory surgical center requirement.
The undue burden standard
Justice Breyer then turned to the correct standard to be applied to the case. Whereas the appeals court had shown deference to the judgment of the legislature regarding when a regulatory law is medically appropriate, Justice Breyer made clear that under Casey, it is the courts—not the legislature—that must balance the burdens created by a law against its benefits. Lesser scrutiny, he noted, is the proper standard in economic claims. But where "constitutionally protected liberty" is involved the standard shifts, and under Casey, the standard becomes whether "any burden imposed on abortion is 'undue'". (Slip. op. at 20)
In an abortion case, Breyer noted, courts are required to place "considerable weight upon evidence and argument" because under Casey, the "Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake." (Slip op. at 20) Abortion statutes are not to be upheld based on "uncritical deference to [legislative] factual findings." (Slip op. at 21). Rather than substituting its own judgment for that of lawmakers, the trial court in fact considered the evidence in the record and then "weighed the asserted benefits against the burdens." In so doing, the trial court followed the law.
The undue burden created by the admitting privilege requirement
Prior to H.B. 2, a physician furnishing abortions was required either to have admitting privileges at a local hospital or a working arrangement with one who did. The law eliminated the working arrangement option and instead required active privileges. Finding adequate legal and factual support for the trial court's holding that the requirement posed an undue burden, Justice Breyer concluded that the admitting privilege rule did nothing to advance its stated purpose of making abortions safer should complications arise. The evidence shows that the rate of first trimester abortion complications is less than 0.25 percent; even during second trimester abortions, the complication rate rises to only 0.5 percent.
Furthermore, such complications rarely require hospitalization or immediate transfer from a clinic. Indeed, in the rare event of a complication, the evidence at trial showed that problems arise days after the abortion is performed, not during or immediately afterward. In these situations, the record showed, patients will seek help close to home, not where they obtained the abortion.
Although nothing in the record suggested that a shift to requiring privileges (as opposed to a working arrangement) improved care for any woman, there was ample evidence that the requirement created substantial obstacles. At the time enforcement began, the number of licensed operating clinics dropped by half, from about 40 to about 20; 11 clinics closed on the day the admitting privileges rule took effect. In numerous communities, no physician with admitting privileges at a local hospital who also would provide abortions could be found.
Furthermore, evidence showed that hospitals would be unwilling to extend privileges to physicians performing abortions, since qualifying for privileges depends in good part on the business a physician can generate for a hospital; because it is safe with virtually no complications, abortion practice generates virtually none. Similarly, other hospitals limit privileges to physicians with faculty appointments. Evidence presented at trial also suggested unwillingness on the part of hospitals to extend privileges to physicians who performed abortions, even when their obstetrical and gynecological practice was recognized as highly clinically competent. (Slip op. at 25).
For the majority, the record showed that the admitting privileges requirement "led to the closure of half of Texas' clinics or thereabouts. These closures meant fewer doctors, longer waiting times, and increased crowding" (Slip op. at 20), with hundreds of thousands of women left without a clinic within 150 miles or more. Noting the dissent's argument that the fact that "some" clinics closed because of the rules did not mean that all of the closures could be ascribed to the law, and therefore that an undue burden was not shown, Justice Breyer countered that the trial court record was sound and that the dissent was simply speculating regarding the existence of possible other causes, none of which were proven at trial.
Justice Breyer also pushed back on the dissent's assertion that the Texas law was enacted in response to the case of Kermit Gosnell, a Pennsylvania physician whose gross violations of health and safety laws pertaining to abortion clinics led to convictions for first-degree murder and manslaughter. Breyer pointed out that while Gosnell's clinic went uninspected for 15 years, Texas law even before H.B. 2 was actively enforced.
The undue burden created by the surgical center requirement
Turning to the ambulatory surgical center requirement, Justice Breyer noted the extensive applicable regulatory provisions that already applied to abortion clinics at the time of passage of H.B. 2. These covered quality assurance, personnel staffing and policies, physical and environmental requirements, infection control, disclosure requirements, patient rights, medical and clinical requirements, and anesthesia; they also called for random inspections and civil and criminal penalties for their violation.
The ambulatory surgical facility standards upped the ante considerably, since facilities had to be designed to manage complex surgeries in a non-hospital location. To be licensed as an ambulatory surgical center, clinics had to meet extensive requirements applicable to buildings in which advanced operations occurred, a level of care that vastly surpasses what happens in an abortion clinic geared to perform previability abortions. The trial record contained considerable evidence showing that the application of ambulatory surgical standards to abortion clinics did nothing to benefit patients and was "not necessary." (Slip op. at 29-30).
According to Justice Breyer, the record was clear that being an ambulatory surgical center means nothing when complication arises as a result of a medical abortion, since in these cases, complications set in only after patients leave the facility. Furthermore, he noted, the record showed that existing abortion facilities were safe, with virtually no deaths attributable to abortion in Texas. By comparison, childbirth carried 14 times the risk of death. (Slip op. at 30). In sum, the ambulatory surgical center requirements were either without benefit to the health and safety of an abortion procedure or in some cases actually undermined safety by creating conditions that themselves raised certain risks. As such, the trial record provided ample evidence that the requirement lacked medical necessity justification.
This finding, Justice Breyer continued, was in sharp contrast to the evidence at trial regarding the substantial obstacles in the way of abortion created by the requirement. Only seven to eight facilities located in major urban areas across the state could survive such a requirement, and the notion that these seven to eight facilities could meet statewide demand "stretches credulity," in the words of the trial court. (Slip op. at 32). Based on statistical estimates, this handful of facilities would have to increase their capacity from 14,000 abortions annually to between 60,000 and 70,000 (Slip op. at 32-33). The dissenters insisted that these expert estimates presented at trial were purely speculative and there was no evidence that the clinics were already operating at capacity; in response, Justice Breyer noted that the trial court could base its inference on common sense, especially since the state offered no rebuttal evidence to support its claim that the remaining clinics could vastly ramp up their capacity. He concluded this way:
More fundamentally, in the face of no threat to women's health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Health care facilities and medical professionals are not fungible commodities.
(Slip op. at 35-36)
The majority went on to reject Texas' other arguments. The state insisted that the Court invalidate only specific applications of H.B. 2 rather than the provisions on their face; Justice Breyer's response was that the record in the case was so strong and showed such a statewide impact that there was essentially no application of the law that could survive. The provisions were facially invalid despite the state's protest about the need for a more surgical remedy.
Texas also insisted that the Court go element by element through the ambulatory surgical center rule to identify which particular elements crossed the line and which could survive. To this argument Justice Breyer made clear that the surgical center standard was intended to operate as a whole as an "integrated" standard and that, therefore, no parsing was necessary. The state also attempted to argue that past decisions by the Court have upheld surgical center requirements for second trimester abortions (Simopoulos v. Virginia, 462 U.S. 506 (1983)), but Justice Breyer noted that here the state had restricted all abortions, not only those occurring later in pregnancy. Justice Breyer further noted that consistent with Casey, the undue burden test must be viewed through a previability/viability lens and that the trimester approach of Roe v. Wade no longer applies.
Finally, the state argued that only a tiny number of women were affected and therefore the law created no undue burden. But, Justice Breyer responded that the state's count was off: Whereas the state considered all women of reproductive age, the proper group was women actually seeking an abortion. It is women for whom the laws create an actual restriction whose interests are considered.
The Ginsburg Concurrence
Justice Ginsburg, one of the nation's preeminent legal experts on gender discrimination, reiterated the extremely safe nature of abortions, particularly in relation to childbirth, as well as her amazement that anyone could really argue (or believe) that the Texas law was enacted out of concern for women's health:
When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute d mieux, at great risk to their health and safety. So long as this Court adheres to Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, 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.
(Ginsburg concurrence, Slip op. at 2)
The Dissents
For their part, the dissenters homed in on what they viewed as procedural irregularities and a distortion of the record. In his dissent, Justice Thomas argued that the Court treated the case as a fundamental rights case when, in fact, the plaintiffs in the case were licensed clinics with economic interests and therefore did not qualify for the heightened scrutiny standard applied to cases brought by women themselves. (This was also true in Casey, where the Court first set forth its heightened scrutiny standard.) Justice Thomas would have barred the vicarious assertion of personal rights, noting that the Court has been "especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child." (Thomas dissent, Slip. op. at 4). (The Court has long recognized the ability to raise vicarious claims on behalf of individuals whose own injuries may evade review with the passage of time.)
Justice Thomas also accused the majority of "reimagin[ing]" the Casey "undue burden" standard, arguing that the majority had overstated the extent to which Casey bars states from engaging in legitimate health regulation without close judicial scrutiny and accusing the Court of getting the political result it sought by shifting to the higher review standard. Justice Thomas concluded by castigating the Court for ever having "invent[ed]" a constitutional right to abortion.
In his dissent, Justice Alito began by noting that "[t]he constitutionality of laws regulating abortion is one of the most controversial issues in American law, but this case does not require us to delve into that contentious dispute. Instead the dispositive issue here concerns a workaday question that can arise in any case no matter the subject," (Alito dissent, slip op. at 1) namely whether the claims were barred by the doctrine of res judicata. Rather than arguing the evidence in this case, or the merits of the Casey framework for judicial review, or whether the framework was properly followed, or even the underlying right to abortion itself, he would simply have thrown the case out.
Beyond his argument for dismissal of the claims, Justice Alito went on to dismiss the evidence in the trial record as insufficient to make out the claims of undue burden, arguing essentially that once the plaintiffs got their erroneous second day in court, they failed to carry the day with the evidence they presented. His biggest concern appeared to be with the evidence of causation or lack thereof. From Justice Alito's perspective, laws may have passed and clinics may have closed, but the plaintiffs could show no causal link between the two, nor was there any convincing evidence that the remaining clinics could not reasonably meet the need. The lack of causation, coupled with the deference owed to states over the regulation of medical practice, tipped the results decisively, for Alito, toward a finding that the Casey test was satisfied.
For now, Casey stands. Five of the sitting Justices have affirmed the continuing validity of its approach to judicial review of legal restrictions on access to abortion. One Justice would indisputably set the test (and the underlying right) aside, while the remaining two clearly are inclined in that direction, although a bit more ambiguous in how they make their case. And once again we are reminded that there is no stronger poster child than abortion for the proposition that Presidential elections—that bring with them the right to recommend individuals for appointment to the federal courts, including the United States Supreme Court—matter.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/29xO2bl
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