While predicting that a case will be accepted by the Supreme Court is a dubious form of fortune-telling (I just had a case denied review this week), the decision yesterday in the Fifth Circuit upholding the Texas law imposing restrictions on abortion clinics has the highest possible chances for such a review. It could also represent a major opportunity for those seeking to limit the pro-choice cases extending back to Roe v. Wade. The decision (written by Judge Edith Jones) is Planned Parenthood of Greater Texas v. Abbott, 2014 U.S. App. LEXIS 5696.
The case involves a state law imposing new obligations on clinics that reportedly resulted in the closure of 20 such clinics in the state. On July 12, 2013, H.B. 2 was enacted with two provisions challenged in this case. First, the law requires that a physician performing or inducing an abortion have admitting privileges at a hospital no more than thirty miles from the location where the abortion is provided. Second, the law requires that the administration of abortion-inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA), with limited exceptions.
Five other states have recently passed laws substantially laws but federal courts have largely enjoined the laws. Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416 (S.D. Miss. 2013) (admitting privileges); Planned Parenthood Se., Inc. v. Bentley, 951 F.Supp.2d 1280 (M.D. Ala. 2013) (admitting privileges); MBK Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900 (D. N.D. 2013) (admitting privileges); Planned Parenthood of Wis., Inc. v. Van Hollen, No. 13-CV-465- WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (admitting privileges); Planned Parenthood Sw. Ohio Region v. DeWine, No. 1:04-CV-493; 2011 WL 9158009 (S.D. Ohio May 23, 2011) (medication abortion).
In this case, the Fifth Circuit had countermanded the district court’s decision to enjoin the law — a decision that has already made it to the Supreme Court. After U.S. District Judge Lee Yeakel ruled that the law was unconstitutional, the Fifth Circuit allowed enforcing just three days later. Four justices then issued a dissent from the decision of the Court to allow the enforcement of the law. Associate Justice Stephen Breyer stated “It is a question, I believe, that at least four members of this court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.” He was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
The case therefore leaves the Fifth Circuit with enough justices already on record as expressing their likely opposition to the decision. That would, once again, leave Associate Justice Anthony Kennedy in the position of swing voter. The four liberal justices may want to reconsider whether this is the case to test Kennedy’s current views on the subject. I would expect that Kennedy would find the appellate decision compelling in some respects.
Take the residency requirements. To win, Planned Parenthood must prevail by showing that there is no rational basis for the requirement — the lowest burden for a state. That state submitted a detailed record on that rationale. There is clearly room to disagree with those assertions by the state experts. However, Judge Edith Jones stressed:
Nothing in the Supreme Court’s abortion jurisprudence deviates from the essential attributes of the rational basis test, which affirms a vital principle of democratic self-government. It is not the courts’ duty to second guess legislative factfinding, “improve” on, or “cleanse” the legislative process by allowing relitigation of the facts that led to the passage of a law. Heller v. Doe, 509 U.S. 312, 320 (1993) (providing that a state “has no obligation to produce evidence to sustain the rationality of a statutory classification”). Under rational basis review, courts must presume that the law in question is valid and sustain it so long as the law is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As the Supreme Court has often stressed, the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (citing cases). Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to “prove” that the objective of the law would be fulfilled. Id. at 315 (holding that “a legislative choice is not subject to courtroom fact-finding”). Most legislation deals ultimately in probabilities, the estimation of the people’s representatives that a law will be beneficial to the community. Success often cannot be “proven” in advance. The court may not replace legislative
predictions or calculations of probabilities with its own, else it usurps the legislative power. Heller, 509 U.S. at 319 (stating that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices”); Beach Commc’ns, 508 U.S. at 315 (explaining that judicial deference to legislative choice “preserve[s] to the legislative branch its rightful independence and its ability to function”). A law “based on rational speculation unsupported by evidence or empirical data” satisfies rational basis review. Beach Commc’ns, 508 U.S. at 315. The fact that reasonable minds can disagree on legislation, moreover, suffices to prove that the law has a rational basis. Finally, there is no least restrictive means component to rational basis review. Heller, 509 U.S. at 321 (holding that courts must accept a legislature’s generalizations under rational basis review “even when there is an imperfect fit between means and ends” or where the classification “is not made with mathematical nicety”).
This rule of restraint is particularly important in the realm of constitutional adjudication for a simple reason. If legislators’ predictions about a law fail to serve their purpose, the law can be changed. Once the courts have held a law unconstitutional, however, only a constitutional amendment, or the wisdom of a majority of justices overcoming the strong pull of stare decisis, will permit that or similar laws to again take effect.
Once again, there are ample arguments on the other side and Jones is a bit of a lightning rod for many moderate and liberal jurists. However, Kennedy may be inclined to see the case as an opportunity to draw some lines in favor of state authority with the finding of the court that the law “on its face does not impose an undue burden on the life and health of a woman.” The closure however of the clinics will counterbalance those arguments, making this a closer case.
Here is the opinion: Planned Parenthood v. Abbott