Symposium: “Overlay of regulations” and the abortion industry

Misha Tseytlin is Solicitor General of the State of Wisconsin.

In a symposium article for this blog posted in advance of the oral argument in Whole Woman’s Health v. Hellerstedt, I explained that for the abortion industry to win this case, the Supreme Court would have to adopt a more searching level of scrutiny for abortion regulations than it has for laws affecting other sorts of businesses. I argued that this would be an unfortunate and inequitable approach.

In a critical portion of its opinion invalidating Texas’s requirement that abortion providers must obtain admitting privileges at local hospitals, a majority of the Supreme Court confirmed this concern. Responding to the argument that mandating admitting privileges furthers the goal of stopping another Dr. Kermit Gosnell from slipping through the cracks in the regulatory artifice – because, after all, a local hospital may well know if a monster like Gosnell was regularly sending women to its emergency room – the Court offered the following response:

Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.

It takes little imagination to see how this same logic would just as well apply to invalidate regulations affecting other businesses. After all, many businesses – sometimes rightly, sometimes wrongly – argue that laws impose needless burdens on their operations without any commensurate public benefit. Yet, under modern Supreme Court doctrine, these businesses do not typically get the benefit of the “overlay of regulations” inquiry that the Court offered in this case.

While the Supreme Court’s decision is deeply disappointing, there are at least two important silver linings that should not be lost.

First, the vast majority of abortion regulations will continue to survive judicial review. While this “overlay of regulations” rationale may appear novel in a Supreme Court decision in 2016, similar analysis of regulations – not limited to any particular industry – was once a feature of our legal system. During the so-called Lochner era, courts regularly looked at health-and-safety laws that businesses questioned as “unlikely” to produce sufficient additional benefits. Yet, as modern defenders of this much-maligned era have correctly pointed out, most health-and-safety regulations enacted at the time survived this form of review. There is every reason to think that the overwhelming majority of abortion regulations – from parental-consent requirements to reporting mandates to ultrasound provisions – will similarly overcome any court challenges.

Second, contrary to the arguments put forward by the abortion industry, the majority of the Supreme Court declined to attack the motives of the Texas legislature for enacting its law. The abortion industry’s lead argument in its brief before the Court was that the Texas law had an “impermissible purpose”: imposing burdens on women. In its opinion, the Court took an entirely different tack, accurately explaining that the “purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure.”

In an amicus brief that the State of Wisconsin submitted before the Supreme Court in this case, we argued that when states like Wisconsin and Texas adopted admitting-privileges requirements, that is precisely the laudable goal they were attempting to forward. We further explained that the Seventh Circuit’s attack upon Wisconsin’s motives for enacting its own admitting-privileges requirement was unjustified. So while Wisconsin is disappointed that we did not get to make the case to the Supreme Court that our particular law advances this vital state interest, we can take some solace from the fact that the Court signaled that legislatures should be treated with respect in discussing their motives for regulating abortion. [Wisconsin’s petition asking the Supreme Court to review the Seventh Circuit’s invalidation of Wisconsin’s admitting-privileges requirement was denied the day after the Supreme Court issued its decision in this case.]

Finally, I would like to highlight the passage that concludes Justice Clarence Thomas’s forceful dissenting opinion in this case:

Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989).

Justice Antonin Scalia regularly bemoaned the Court’s abortion case law, under which the Court suspended long-settled legal doctrines in order to protect abortion providers from the rules that the rest of us must comply with. Thomas’s quotation from Scalia’s iconic essay defending the rule of law is a powerful, if understated, requiem for one of this nation’s greatest Justices. Scalia’s passing was, indeed, the loss of something essential. It is for the rest of us to ensure that the ideals he fought for so eloquently are not similarly lost.