Wednesday, June 24, 2015

Whole Woman’s Health: Casey, Res Judicata, and Supreme Court Review

Neil Siegel

The Fifth Circuit’s recent abortion decision in Whole Woman’s Health v. Cole, which upheld key provisions of Texas House Bill 2, ought to raise two eyebrows—one from a constitutional law perspective, and the other from a federal courts perspective.

As a constitutional law case, the decision tees up the question whether the purpose and effect prongs of the undue burden standard set forth in Planned Parenthood v. Casey, 505 U.S. 833 (1992), have any teeth when abortion restrictions are justified as protecting women’s health, as opposed to fetal life.  Under Casey, including Casey as applied by the Court in Gonzales v. Carhart, 550 U.S. 124 (2007), an abortion restriction imposes an undue burden and thus is unconstitutional if it has the purpose or effect of imposing a substantial obstacle in the path of a woman who seeks an abortion before fetal viability.

In upholding Texas’s requirement that abortion clinics comply with the standards set for ambulatory surgical centers (the “ASC requirement”), the Fifth Circuit simply deferred to Texas’s assertion that the purpose of the law is to protect women’s health.  The court deferred even though:

(1) there is scant evidence that the law will protect women’s health;

(2) there is much evidence that the law will harm women’s health by closing most of the clinics in Texas and requiring women to endure drives of up to 150 miles one way to obtain an abortion;

(3) there is substantial evidence that the law will reduce access to abortion in the state;

(4) proponents of the law celebrate it publicly as protecting unborn life by reducing access to abortion in the state; and

(5) Texas in this very case is defending the law in part by arguing that women in the vast part of the state west of San Antonio can simply go to New Mexico to obtain an abortion—a jurisdiction in which Texas has no control over whether abortion facilities, doctors, and procedures adequately protect women’s health.

The Fifth Circuit was similarly—that is, almost entirely—deferential in applying the effects prong of Casey.  In what must be record time, the Texas law will reduce the number of clinics in an enormous state from more than forty to less than ten.  Even so, the Fifth Circuit, with one exception, found no effect of imposing a substantial obstacle in the path of women seeking an abortion before fetal viability—again, because women in Texas can take very long journeys or go to New Mexico. 

As Linda Greenhouse and Reva Siegel argue in a recent post, Casey and Carhart require more of a court that is duty bound to subject abortion restrictions to judicial review.

The Fifth Circuit’s opinion also appears dubious from a federal courts perspective.  The court’s rejection of a facial challenge to the ASC requirement was actually an alternative—that is, unnecessary—holding.  Before reaching the merits, the court held that the plaintiffs had previously challenged the Texas law in federal court without attacking the ASC requirement even though they could have, so that the current challenge was barred by a procedural doctrine called res judicata. 

As a general matter, res judicata (also known as claim preclusion) bars a party from bringing a claim against another party that was brought—or could have been brought—in earlier litigation between those parties that resulted in a final judgment on the merits by a court of competent jurisdiction.  The Fifth Circuit, in the course of holding that res judicata barred the plaintiffs’ challenge to the ASC requirement, dismissed—and, unfortunately, demeaned—the contrary arguments of the plaintiffs as either “disingenuous” or “rather obliquely raised.” 

It is striking that a court unwilling to deem disingenuous the state’s shaky defense of its statute would gratuitously adjudge disingenuous certain of the plaintiffs’ arguments.  It is also striking that the court would describe as “rather obliquely raised” the plaintiffs’ ripeness argument—that is, their argument that, like eating green bananas, it would have been too soon to raise their challenge to the ASC requirement in earlier litigation.  In their opening brief to the Fifth Circuit, the plaintiffs clearly—not obliquely—wrote that “[p]rior to adoption of the final regulations, Plaintiffs’ claims against the ASC requirement were not ripe.”

The plaintiffs have addressed arguments about res judicata that appear not only genuine and direct, but persuasive as well.  For example, res judicata bars the current challenge to the ASC requirement only if enforcement of the ASC requirement is part of the same transaction or series of linked transactions (in legal terminology, the “same nucleus of operative facts”) as enforcement of other parts of the Texas law that were challenged in the earlier litigation—particularly, the admitting privileges requirement.  That does not appear to be the case, however, because the ASC requirement has a different effective date, requires its own implementing regulations to give it legal effect, operates independently of the admitting privileges requirement, and requires different proof to determine its constitutionality.  Contrary to what the Fifth Circuit seemed to think, the fact that different provisions of a law are part of the same overall statute is not critical for res judicata purposes.

Moreover, the plaintiffs sensibly explain (this is the ripeness argument) that, following common practice, they did not challenge the ASC requirement in earlier litigation because Texas had yet to issue the ASC regulations required by the law.  Such regulations might have created a way for at least some existing abortion clinics in Texas to obtain grandfathering or waivers from the ASC requirement.  If the regulations had made available some such exemptions from the statute’s ASC requirement, less litigation over the constitutionality of the statutory provision may have been necessary. 

Whatever the Fifth Circuit’s purpose in Whole Woman’s Health in issuing alternative holdings on res judicata and the merits, its having done so should not have the effect of insulating its judgment from Supreme Court review—that is, of “cert proofing” the case.  The Fifth Circuit’s res judicata ruling is sufficiently suspect that it should not impose a barrier to the Supreme Court’s consideration of its holding on the merits.

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