Symposium: Will the Supreme Court deliver a decisive victory for women’s health and safety?

Mailee R. Smith is Staff Counsel for Americans United for Life. She represented Texas legislators as amici in the Fifth Circuit appeal in this Whole Woman’s Health v. Cole.

Whole Woman’s Health v. Cole is about more than applying ambulatory surgical center standards and admitting privileges to Texas abortion clinics. While these provisions of Texas House Bill (HB) 2, enacted in 2013, are certainly front and center in the case, what is at stake is the very standard that federal courts will use to review abortion regulations. The Supreme Court will be considering whether a state can enact rational abortion regulations aimed at protecting the health and safety of women, or whether it will reverse its previous decisions and require states to preemptively prove the absolute effectiveness of a safety regulation, even before that regulation goes into effect.

In legal semantics, abortion providers are essentially arguing for a strict-scrutiny standard of review for abortion regulations. What they ignore – and the Fifth Circuit got right – is that the Supreme Court has explicitly rejected this approach and has repeatedly affirmed the states’ interests in protecting maternal health and regulating the medical profession through commonsense abortion regulations.

The Court’s support for these interests is clear. In Planned Parenthood v. Casey and Gonzales v. Carhart, the Court reaffirmed an “essential holding” of Roe v. Wade: the principle that a state has a legitimate interest from the outset of pregnancy in protecting the health of the woman.

You only need to look to Roe itself to see the practical application of the state’s legitimate interest. In Roe, the Court held that the state’s legitimate interest in regulating abortion to ensure “maximum safety” for the woman “obviously extends at least to [regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.”

Preceded by the phrase “at least,” these examples set a floor, not a ceiling, for the “obvious” interests a state maintains in protecting maternal health. HB2’s admitting-privileges requirement and mandate that abortion clinics meet the same standards as ambulatory surgical centers — which simply require abortion clinics to meet commonsense standards for safety and cleanliness — certainly fall within the regulation of abortion providers and facilities approved in Roe.

After Roe, many courts failed to give adequate deference to a state’s interest in maternal health and instead “decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest.” However, the Supreme Court held in Casey that “[n]ot all of the cases decided under that [strict-scrutiny] formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her.”

Holding that previous decisions went “too far” and invalidated regulations “which in no real sense deprived women of the ultimate decision,” the plurality in Casey rejected strict-scrutiny review and instead introduced the “undue burden” standard: only when a state regulation imposes an undue burden on a woman’s ability to choose abortion does a state overreach.

Given that the “undue burden” standard established a new framework for evaluating abortion regulations, the plurality provided “guiding principles” to help direct federal courts as to what constitutes a “substantial obstacle” to a woman’s abortion. Of particular importance in the Texas case now before the Court is the principle that “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.” Only “unnecessary” regulations which have the “purpose or effect of presenting a substantial obstacle to a woman” pose an undue burden.

In Gonzales, the Court elaborated on the significant state interests that support an abortion regulation and clarified that a rational-basis inquiry has an important place in reviewing abortion regulations. After recognizing that the state has a “significant role” to play in regulating the medical profession, the Court determined that a state may enact abortion regulations aimed at protecting the health and safety of women “[w]here it has a rational basis to act, and it does not impose an undue burden.”

Further, the Court explicitly held that state and federal lawmakers are given “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” In other words, if there is disagreement in the medical community regarding the effect of a particular abortion regulation, a court must defer to state officials. At the very least, such medical disagreement catapults the state past the rational-basis inquiry and places an incredibly high burden on any challengers to substantiate an undue burden. If members of the medical community believe that a regulation is beneficial to a woman considering an abortion, there is no undue burden. Here, the burden was on the abortion providers to prove that no such belief is held in the medical community — a burden they failed to meet.

Such deference to state officials was not a new or anomalous construct when recognized in Gonzales. In the 1997 case Mazurek v. Armstrong, the Court upheld a Montana law that restricted the performance of abortions to licensed physicians despite abortion advocates’ contention that “all health evidence contradicts the claim that there is any health basis” for the law. In other words, deference to the state is appropriate even when a challenger contends that a law is not based upon scientific facts.

Notably, this “wide discretion” predates Casey. In the 1983 case Simopoulos v. Virginia, the Court held that, in view of a state’s interest in protecting the health of its citizens, it “necessarily has considerable discretion in determining standards for the licensing of medical facilities.” Significantly, the Court upheld a second-trimester ambulatory surgical center requirement in Simopoulos.

Abortion providers’ claims in this case do not simply ignore the rational-basis inquiry and wide discretion afforded to states under Casey and Gonzales. They are, in reality, asking the Court to reverse itself and re-implement the strict-scrutiny standard it rejected more than twenty years ago in Casey. They assert that the Fifth Circuit erred by refusing to consider whether and to what extent the provisions in HB2 “actually serve the government’s interest in promoting health” – which is simply another way of placing the burden on the state to prove the provisions are narrowly tailored to achieve the state’s interest (i.e., strict scrutiny).

In the face of abortion providers’ claims, the Fifth Circuit maintained proper respect for the legislative determinations of Texas officials. After a thorough review of the Supreme Court’s jurisprudence from Roe to the present (which is glaringly missing from Judge Richard Posner’s recent decision in Planned Parenthood v. Schimel, a Seventh Circuit case which adopts a strict-scrutiny standard), the Fifth Circuit carefully followed the Court’s deferential framework for evaluating abortion regulations.

For example, the Fifth Circuit examined the rational bases supporting HB 2 — for example, the state’s interest in raising the standard and quality of care and protecting the health and welfare of women seeking abortions through the ambulatory surgical center provision. In doing so, the Fifth Circuit concluded that Texas had adequately defined and supported the medical basis for the provision. Further, it concluded that this medical basis supported a legitimate purpose.

Moreover, the Fifth Circuit rightfully found that it was the abortion providers’ burden to prove that the provisions of HB2 impose an undue burden on women – and not the state’s burden to prove the effectiveness of the law.

Citing the “wide discretion” standard so clearly enunciated in Gonzales, the Fifth Circuit also explained that the Supreme Court has made clear that medical uncertainty underlying a statute should be resolved by legislatures, not the courts. Here, there is ample evidence of “medical disagreement” in the medical community. Testimony in the legislative record — including statements of physicians — highlighted the medical benefit of HB2’s ambulatory surgical-center standards and admitting-privileges requirement. The district court heard medical testimony from both sides during trial. Amicus briefs were submitted by medical organizations supporting the state in the Fifth Circuit appeal, and more amicus briefs explaining the medical benefit of ambulatory surgical center standards and admitting privileges will be filed with the Supreme Court. At most, abortion providers have demonstrated that there is medical disagreement – and in so doing, they simply make the case that the Texas legislature must be afforded wide deference and HB2 must be upheld. To rule otherwise would require reversing the Court’s longstanding abortion decisions.

In sum, the Fifth Circuit followed the Supreme Court’s guidance in Casey and Gonzales to the letter — and it is the petitioners that advocate turning the Court’s abortion jurisprudence on its head.