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, 304–05
(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 153–54 (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
http://ssrn.com/abstract=1357506 (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).
[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.