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.
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.
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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.