Kevin Walsh is a Professor of Law at the University of Richmond School of Law.

What we don’t say when we argue about abortion laws can sometimes be as revealing as what we do. This contribution to the symposium on Whole Woman’s Health v. Cole addresses three important and underappreciated aspects of the case that have received insufficient attention in the framing of the issues by prominent abortion-rights advocates Linda Greenhouse and Reva Siegel. Those three aspects are Kermit Gosnell’s presence, Planned Parenthood’s absence, and severability doctrine’s importance.

Gosnell’s presence

Kermit Gosnell is the disgraced (and disgraceful) abortion doctor who performed illegal late-term abortions in a disgusting Philadelphia clinic named Women’s Medical Society. He was convicted of three murder counts and is now in prison, where he will spend the rest of his life.

Many causes contributed to the culture in which Gosnell operated. One was an opaque constitutional overlay on state abortion regulation. That underwrote uncertainty about government oversight, which led to lax oversight, which led to years of illegal late-term abortions. Among the reforms recommended by the grand jury that investigated Gosnell’s atrocities was that “[t]he Pennsylvania Department of Health should license abortion clinics as ambulatory surgical facilities.” Pennsylvania shortly thereafter enacted such a law, which remains an important legal legacy of Gosnell’s illegal operations.

Whole Woman’s Health v. Cole is a constitutional challenge by some Texas abortion providers to a similar provision of Texas law. They also challenge a provision requiring abortion facilities to have on staff a doctor with admitting privileges at a hospital within thirty miles of the abortion facility.

Linda Greenhouse and Reva Siegel have sought to cast Whole Women’s Health v. Cole as a referendum on “the integrity of the undue burden framework as a compromise” shaped by moderate judges in Planned Parenthood of Southeastern Pennsylvania v. Casey. Another way of looking at the case is as a signal of the continuing ability of elite influencers like Greenhouse and Siegel to use institutions like The Yale Law Journal and The New York Times to shape the way that Justice Anthony Kennedy thinks about abortion regulation.

So far, they have done a pretty good job. It is no mean feat, after all, to have The Yale Law Journal accept for publication a doctrinal analysis of a circuit split on the application of a single Supreme Court case. It is also unusual to have a .pdf of one’s draft forthcoming law-review article available on the website of The New York Times. But Greenhouse and Siegel have accomplished both feats. And their lobbying for a stay and certiorari in this case bore fruit with a grant, so that a case from Texas is the vehicle for the Court’s consideration of ambulatory surgical-center and admitting-privileges regulations.

It makes good tactical sense that those seeking to use the Due Process Clause as a deregulatory tool for abortion providers have served up a case from Texas (which calls to mind Roe and plays on the Justices’ geography-based cultural preferences) rather than Pennsylvania (which calls to mind Casey, Kermit Gosnell, and the Northeast). Although it comes out of Texas, the Supreme Court’s resolution of this case will have nationwide effects, including on Pennsylvania’s post-Gosnell ambulatory surgical-facilities law. Yet Kermit Gosnell and the Pennsylvania ambulatory surgery-facility law enacted in response to him make no appearance in Greenhouse and Siegel’s analysis.

Planned Parenthood’s absence

Nor would one know from their analysis why it is that no Planned Parenthood affiliate in Texas is a party in this case – a case purportedly about the legacy of Planned Parenthood of Southeastern Pennsylvania v. Casey. That absence is an odd feature of a case challenging laws that will purportedly destroy abortion-provision infrastructure in Texas. In fact, however, Planned Parenthood’s affiliates in the major population areas of Texas are potential economic beneficiaries of a Supreme Court decision upholding the challenged Texas provisions. Because they chose to comply with those provisions rather than seek deregulation through due process litigation, they are well positioned to increase their market share vis-à-vis their more poorly capitalized competitors.

Severability doctrine’s importance

A third revealing absence from the Greenhouse and Siegel doctrinal analysis is another Planned Parenthood case: Ayotte v. Planned Parenthood of Northern New England. Justice Sandra Day O’Connor’s opinion for a unanimous Supreme Court in Ayottte is an important guide to the application of the “undue burden” standard that she contributed to the Casey plurality decision. In particular, Ayotte controls the analysis of what to do with laws, like those challenged in Texas, that present no constitutional problem in the vast majority of their applications, but may be unconstitutional in others. The right approach to such laws, in brief, turns on severability – another concept absent from the Greenhouse and Siegel analysis.

To understand the importance of severability, it is first necessary to understand how to implement the “undue burden” framework that O’Connor set forth in the Casey plurality decision and applied with modification in Ayotte. This Ayotte-inflected version of undue-burden analysis is the version also applied by Kennedy in his opinion for the Court in Gonzales v. Carhart.

Once the implementing doctrine for the undue-burden framework is in place, the centrality of severability comes into focus. In the remainder of this symposium contribution, I sketch out the doctrinal principles appropriate for analysis of undue burden and severability of the abortion regulations at issue in this case.

  1. “Undue burden” analysis is woman-centered, not abortion-provider-centered (Casey). Abortion-provider plaintiffs and their advocates regularly focus on the number of clinics in Texas that would close rather than comply. But this upstream focus on the providers is incomplete. Constitutionally speaking, clinic closures matter to the extent that they result downstream in a substantial obstacle to abortion access for women seeking abortions, but no further. The focus on actual effects on abortion access for women makes a difference in this case because the clinics that everyone acknowledges will remain open (mostly Planned Parenthood affiliates) are located in the major population centers of Texas. Largely ignored by the challengers in their case below, these clinics are centers where abortion access remains available and legally unimpeded for the women who live in their areas of operation or within a reasonable travel distance.
  1. Facial invalidation of a provision regulating abortion is unwarranted unless it operates unconstitutionally in a large fraction of its applications (Casey). From day one of the district court trial, Texas argued that there is no basis for finding an undue burden on the eighty-four percent or so of Texas women of reproductive age who will live within 150 miles of an open clinic that complies with the admitting-privileges and ambulatory surgery-center requirements. The Fifth Circuit correctly adopted a version of this argument, and the Supreme Court should affirm that ruling.
  1. The denominator of the “large fraction” is the set of all applications of a challenged provision (Casey, Ayotte, Carhart II). The plurality opinion in Casey introduced its new “large fraction” approach to facial invalidation in a confusing way that left lower courts scratching their heads about the denominator of the fraction. But the best reading of Ayotte is that the denominator of the facial-invalidation fraction should be the set of all applications of a challenged provision. O’Connor treated the lack of a health exception in a state parental-notification law as a problem with respect to certain applications of the statute – those in which a medical emergency would leave no time for notification or bypass – rather than the statute itself. O’Connor reasoned that the lower courts’ facial invalidation based on a “very small percentage of cases” of potential unconstitutionality had been unwarranted. Although the Ayotte opinion speaks in terms of percentages rather than fractions, its import for facial invalidation is the same. O’Connor’s Ayotte analysis assesses the proportion of unconstitutional to constitutional applications relevant for facial invalidation by reference to all pregnant minors seeking abortions. Applying the same approach in this case would require treating the denominator for facial invalidation as all pregnant women in Texas seeking an abortion, not just those who live outside of reasonable driving distance from a clinic that remains open.
  1. Unconstitutional provisions or applications are to be severed after as-applied adjudication, leaving the remaining provisions enforceable and the constitutional applications untouched (Ayotte, Carhart II). Another legacy of Ayotte is the Court’s insistence that “when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” This means that the Court prefers “to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.”
  1. Severability of a state law or regulation is a question of state law. This point of severability law is uncontroversial, but the dependence of severability on state law, together with the Court’s preference in Ayotte for partial invalidation, could matter greatly in Whole Woman’s Health v. Cole. Texas law includes two on-point severability provisions. One is in the statute; another is in the implementing regulations for the ambulatory surgery-center provision. Both are detailed and comprehensive, establishing unmistakable intent to leave in place any provision or application of a provision that is not unconstitutional. If the challenged laws are found to impose an undue burden on some women in more rural areas of Texas, for instance, the statutory severability provision could enable the challenged laws to continue in force in the major metropolitan areas and nearby. Or if the ambulatory surgery-center construction requirements are found to impose an undue burden because they are believed to impose clinic-closing costs (notwithstanding the counter-example of Planned Parenthood’s major Texas affiliates), the regulatory severability provision could enable the non-construction-related requirements to remain in effect.

* * *

The foregoing analysis points out why leading conventional wisdom is based on incomplete analysis. Fuller consideration shows that there are good reasons to believe that the challenged Texas provisions in this case might survive their trip to the Supreme Court no worse off than after their trip to the Fifth Circuit.

But who knows? While there is a way, it remains to be revealed whether there is a will.

Posted in Whole Woman’s Health v. Hellerstedt, Featured, Whole Woman's Health v. Cole symposium

Recommended Citation: Kevin Walsh, Symposium: Kermit Gosnell, Planned Parenthood, and severability doctrine – A fresh look at Whole Woman’s Health v. Cole, SCOTUSblog (Jan. 5, 2016, 3:11 PM),