Monday, June 27, 2016

Whole Woman's Health, Gonzales v. Carhart, and Medical Uncertainty

Priscilla Smith

Just a quick note here, in response to Mark Graber's post below, to say that Whole Woman's Health's understanding of Gonzales v. Carhart is in fact right on.  The Fifth Circuit tried to use Carhart in a number of ways to support the application of rational basis review to Texas' abortion regulations.  Here is the section of our YLS Information Society Project amicus brief explaining the Fifth Circuit's distortions, including its claims about "medical uncertainty."  Glad to see that Court, including the author of Gonzales, agreed.  (Full disclosure, I was the (losing) attorney in Carhart.):

A.   Carhart Does Not Support the Fifth Circuit’s Rational Speculation Review.

To justify its use of hyper-deferential rational basis review,[1] the Fifth Circuit invokes Gonzales v. Carhart, the Supreme Court’s 2007 decision that upheld the federal Partial Birth Abortion Ban Act.  But the Fifth Circuit’s hyper-deferential rational basis review is inconsistent with the Court’s decision in Carhart, and eliminates the crucial distinction between the state’s interests in protecting potential life and its interest in women’s health, thereby permitting Texas to violate the limitations Casey imposes on the means by which the state may protect unborn life.
In the Supreme Court’s opinion in Gonzales v. Carhart,[2] issued fifteen years after Casey, the Court accepted the continuing authority of Casey’s undue burden framework[3] and the protection it provides for a woman’s choice in obtaining previability abortions.[4]  In addition, the Court declined the government’s call to defer categorically to claims supporting the legislation made in Congressional Findings of Fact.  Instead, in upholding the Partial Birth Abortion Ban Act, the Court observed, “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to Congress’ factual findings in these cases is inappropriate.[5] The Carhart Court probed and, in two instances, rejected congressional findings invoked by the government as reasons for enacting the Partial Birth Abortion Ban Act.[6] Probing Congress’s reasons behind enacting the challenged statute is not minimal rational basis review of the kind that the Fifth Circuit mandates.[7]
Moreover, Carhart did not concern a health-justified abortion regulation.  Instead, that case concerned a potential life-justified law that the Court held furthered the interest in protecting the “integrity and ethics of the medical profession.”[8]  The law as construed by the Court concerned a rarely employed method of performing abortions late in the second-trimester of pregnancy.  The Court held that due to the availability of alternative safe abortion procedures, the law did not restrict any woman’s access to abortion before viability.[9] Both references to “rational basis” and regulation being within “legislative competence” in Carhart[10] are carefully limited to the specific context at issue there, a law involving the substitution of one procedure for another where only “marginal safety” considerations separated the two.[11]  Carhart’s statements about a potential life-justified regulation simply do not apply to the health-justified regulations here that would shut down three quarters of the clinics in the state of Texas.
Nor does the language in Carhart discussing the “wide discretion” that state and federal legislatures have to pass legislation in areas where there is medical and scientific uncertainty,”[12] support the Fifth Circuit’s call for judicial deference in this case.[13]  The condition of medical uncertainty in Carhart is unrelated to the question of whether the law promoted women’s health. It related to the question of whether health was endangered enough by the law in certain circumstance to require an exception to the ban where the woman’s health was at risk. Moreover, the fact of medical uncertainty was itself established through extensive and detailed judicial review, through the fact finding of the District Courts. By contrast, the Fifth Circuit finds uncertainty by ignoring the fact-finding of the District Court.[14] If appellate courts can justify deference to the legislature by invoking medical uncertainty that is untethered to facts found and credibility determinations made by the trial court,[15] they can easily erode protections for constitutional rights. Whatever deference Carhart might be read to warrant on the issue of promotion of the interest in potential life, it cannot be the extravagant deference to the legislature that the Fifth Circuit practices here.[16]

[1] The Fifth Circuit’s claims about rational basis are not entirely clear.  See Greenhouse and Siegel, Clinic Closings, at Part II.C.1. (discussing Judge Jones’ opinion in Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583 (5th Cir. 2014), Judge Elrod’s opinion in Whole Woman’s Health v. Lakey, 769 F.3d 285, 30405 (5th Cir. 2014) (overturning District Court injunction against Texas ambulatory-surgical-center requirement), vacated in part, 135 S. Ct. 399 (2014), and the per curiam opinion in Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015), mandate stayed pending judgment by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274), which goes out of its way to reaffirm Abbott II’s rational basis reasoning. Whichever account the Circuit embraces, its rational-basis claims flout both Casey and Carhart).
[2] 550 U.S. 124 (2007).
[3] See id. at 146 (observing that Casey’s undue burden standard “struck a balance” between protecting “the woman’s exercise of the right to choose” and the ability of the state to “express profound respect for the life of the unborn” (quoting Casey, 505 U.S. at 877)); see also id. (“Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the case at bar”).
[4] Id. at 15354 (construing the statute to avoid constitutional questions and protect ordinary second-trimester abortions).  See Smith, Priscilla J., Is the Glass Half-Full?: Gonzales v. Carhart and the Future of Abortion Jurisprudence, 2 Harv. L. & Pol’y Rev. (Online), (2008), available at (noting that decision upholding statute preserved viability of Casey’s framework while rejecting plaintiffs’ claim that there was a significant medical distinction between banned procedures and allowable procedures).
[5] 550 U.S. at 165–66 (2007) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.”) (quoting Crowell v. Benson, 285 U.S. 22, 60 (1932)); see also Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 913 (9th Cir. 2014) (discussing Carhart).
[6] Carhart, 550 U.S. at 165-66 (drawing on evidence presented in the district courts to reject the claim that no medical schools provided training in the abortion method the statute banned, and the claim that “the prohibited procedure is never medically necessary.”).  Moreover, despite the legislative finding that “partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives,” Partial Birth Abortion Ban Act of 2003, Pub. L. 108–105, at § 2(2) (Nov. 5, 2003), the Court did not consider that the statute might be health-justified.
[7] Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583, 594 (5th Cir. 2014) (citations omitted) ((“[a] law ‘based on rational speculation unsupported by evidence or empirical data’ satisfies rational basis review.”).
[8] 550 U.S. at 157.  By banning a procedure that had a “disturbing similarity to the killing of a new born infant,” and which “implicate[d] additional ethical and moral concerns that justif[ied] a special prohibition,” the Court held that the law furthered the government’s “legitimate interest in regulating the medical profession in order to promote respect for life, including life of the unborn.”  Id. at 158 (law “‘draw[s] a bright line that clearly distinguishes abortion and infanticide.’”) (internal citations omitted).
[9] Carhart, 550 U.S. at 154-56.
[10] Id. at 158; cf. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583, 590 (5th Cir. 2014) (characterizing Carhart as “holding that the State may ban certain abortion procedures and substitute others provided that ‘it has a rational basis to act, and it does not impose an undue burden’” (quoting Carhart, 550 U.S. at 158)).
[11] See Carhart, 550 U.S. at 158, 166.
[12] Id. at 163.
[13] Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015) (chastising the trial court for “substituting its own judgment for that of the legislature” and asserting “medical uncertainty underlying a statute is for resolution by legislatures, not the courts”), mandate stayed pending judgment by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274).
[14] See Cole, 790 F.3d at 587 (explaining why Abbott II “disavowed the inquiry employed by the district court” to evaluate admitting privileges requirement); see id. at 584–86 (same with reference to ASC requirement).
[15] The District Court found that the testimony of the state’s key expert witnesses lacked “the appearance of objectivity and reliability” because a non-physician third party exerted “considerable editorial . . . control” over the contents.  Lakey, 46 F. Supp.3d at 680 n.3. In finding “medical uncertainty,” the Fifth Circuit rejected the findings of the District Court and endorsed the state’s evidence without ever mentioning adverse credibility findings made by Judge Yeakel. See Cole, 790 F.3d at 585 (5th Cir. 2015).
[16] Nor does Mazurek v. Armstrong, 520 U.S. 968 (1997), support the Fifth Circuit’s position.  In a brief per curiam opinion, that case upheld a Montana law providing that only a doctor could perform an abortion. The Court noted that physician-only requirements of various kinds had been sustained in its prior cases, including both Roe and Casey.  Id. at 973–74 (emphasizing that “[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others” (emphasis omitted) (quoting Casey, 505 U.S. at 885)). As the regulation at issue in Mazurek would not force any woman to travel to a different facility, the Court judged its effects minimal.  Id. The Court declined to find Montana’s physician-only requirement unconstitutional in purpose in light of: the Supreme Court’s several cases sanctioning physician-only requirements, the requirement’s minimal effects on abortion access, and the fact that similar rules existed in forty other states.  Id. at 973.

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