Executions & Abortions: Motives Matter at SCOTUS

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By Kimberly Robinson

Feb. 24 — Death penalty abolitionists are like pro-life legislators, former acting U.S. Solicitor General Neal Katyal said at a Federalist Society event in September. Both groups have been accused of taking small steps to get to their larger goal.

For abolitionists, Justice Samuel A. Alito Jr. wondered aloud whether it was appropriate for the court to entertain what he called a “guerilla war” against the death penalty—making it difficult for states to obtain lethal injection drugs so that they then turn to more questionable ones—during oral argument in Glossip v. Gross, 83 U.S.L.W. 4656, 2015 BL 206563 (U.S. June 29, 2015) .

Although it remains unclear whether abolitionists' ultimate goal factored into Alito's opinion to uphold the constitutionality of the lethal injection cocktail at issue in Glossip, the ultimate motives of Texas legislators will factor into the abortion case being argued at the U.S. Supreme Court March 2, Whole Woman's Health v. Hellerstedt, No. 15-274.

Stigmatizing Abortion

In fact, the legislators' motives will be a “central piece” of the argument, American Constitution Society president Caroline Fredrickson of Washington told Bloomberg BNA.

The case centers on two Texas abortion regulations—one requiring abortion doctors to obtain “admitting privileges” at a nearby hospital, another requiring abortion clinics to meet the same standards as “ambulatory surgical centers.”

The stated purpose of these laws is to protect women's health and make abortions safer.

But there's clearly another purpose—to make abortion more costly and stigmatized, Fredrickson said.

The “requirements would close more than 75% of Texas abortion facilities and deter new ones from opening,” abortion clinics and doctors opposing the Texas regulations said in their Supreme Court brief.

Judge Richard A. Posner recently discussed legislators' motives in striking down similar Wisconsin abortion regulations in Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015)

Posner acknowledged that a “great many Americans” would like to overturn Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). But that's a “steep uphill fight,” he said.

So “some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them,” Posner said. “They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.”

Purpose Matters

“Purpose tests” looking at the actual intent of the law are quite common, “including under the First Amendment’s Establishment Clause, the Fourteenth Amendment’s Equal Protection Clause, and even the Dormant Commerce Clause,” constitutional law professor Michael C. Dorf, of Cornell Law School, Ithaca, N.Y., told Bloomberg BNA.

Dorf is part of a group of constitutional law scholars who filed an amicus brief in Whole Woman's Health supporting the abortion clinics and doctors challenging the law.

But Dorf said it's “useful to distinguish the subjective motives of the legislators who voted for a law and the objective purpose of the law.”

He said the court probably won't “delve into the subjective motive of the Texas legislature in this case,” but will instead look at the law's objective purpose.

In Casey, the court held that “a law that has the purpose or effect of imposing a substantial obstacle in the path of a woman seeking an abortion is an undue burden,” Dorf said. “Accordingly, it is appropriate to examine the legislative purpose.”

Dorf said it's “likely that the Court will examine legislative purpose, as inferred from how the Texas law actually functions.”

The “way in which the law actually functions makes its purpose apparent.” Here, the court may find that the law doesn't aim “to protect women’s health because it does not in fact protect or promote women’s health,” Dorf said.

Abortion Already Safe

In their brief, the abortion clinics and doctors challenging the law told the justices that there was no valid health reason for the regulations because abortions are already safe.

A “woman in Texas is currently 100 times more likely to die from carrying a pregnancy to term than from having an abortion in a licensed abortion facility,” their brief said.

Even though abortion is safe in Texas, the state requirements “single out abortion from all other outpatient procedures for more burdensome regulation,” the brief said.

“The fact that the Texas requirements target abortion for heightened medical regulation when abortion is safer than many other common medical procedures provides further evidence that the purpose of the requirements is to place substantial obstacles in the path of women seeking abortions in Texas,” the brief said.

Kermit Gosnell Scandal

But Texas said it's just one of a handful of states that passed stricter abortion regulations in response to the Kermit Gosnell scandal.

Gosnell was a doctor in an abortion clinic sentenced to life in prison in 2013 after an abortion patient received a lethal dose of pain medication. His clinic was referred to as a “house of horrors” by investigators, “with floors and walls stained with cat urine and blood,” according to a 2013 Bloomberg Business article.

“The Pennsylvania grand jury that indicted Gosnell for killing an abortion patient and three infants born alive specifically recommended that abortion clinics be held to the standards of ambulatory surgical centers,” Texas's Supreme Court brief said.

Pennsylvania and five other states—including Texas—followed that recommendation and “increased their regulations of abortion clinics following the Gosnell scandal,” the brief said.

“And nine States required abortion clinics to have doctors with admitting privileges at a nearby hospital”—“following the prior advice of the National Abortion Federation,” the brief said.

The National Abortion Federation is a pro-choice “professional association of abortion providers in North America,” according to its website. The federation filed an amicus brief in Whole Woman's Health, challenging the Texas regulation.

Thumb on Scale

Texas legislators, therefore, aren't engaging in a guerilla war against abortion, Alliance Defending Freedom's Steven Aden, of Washington, told Bloomberg BNA.

Aden and Alliance Defending Freedom filed an amicus brief in Whole Woman's Health on behalf of the American Association of Pro-Life Obstetricians and Gynecologists in support of the abortion regulations.

The real covert war happening in abortion jurisprudence is against pro-lifers, Aden said.

Roe v. Wade marked the beginning of special rules for abortion that favor pro-choice advocates, he said. It put the thumb on the scale for abortion providers, Aden said.

But abortion shouldn't have such an exalted status that it can be invoked to the detriment of all other rights, he said. And the Supreme Court seems to be coming around to that kind of thinking, Aden said.

Cases like Gonzales v. Carhart, 550 U.S. 124 (2007), upholding the federal Partial-Birth Abortion Ban Act, demonstrate that the Supreme Court has started to walk back abortion's special rules, Aden said.

There has been a “return to sanity” with how states can regulate abortion to protect women's health, Aden said. Whole Woman's Health is the culmination of that, he added.

States should, and do, have the authority to regulate health and safety, Aden said.

For support, Aden pointed to the Supreme Court's plurality opinion in Casey.

“As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion,” the Supreme Court said.

However, it added that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

All stakeholders here seem to agree on at least one thing: Whole Woman's Health will come down to what that statement in Casey means.

Bloomberg Philanthropies provides financial support for Planned Parenthood, which filed an amicus brief in support of the petitioners in Whole Woman's Health.

The author previously worked at the law firm of Morrison & Foerster LLP, which represents the petitioners challenging the Texas regulations in Whole Woman's Health.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full text of the Fifth Circuit's decision below at http://www.bloomberglaw.com/public/document/Whole_Womans_Health_v_Cole_790_F3d_563_5th_Cir_2015_Court_Opinion/1.

Full text of the Seventh Circuit's decision in Planned Parenthood of Wis., Inc. v. Schimel at http://www.bloomberglaw.com/public/document/Planned_Parenthood_of_Wis_v_Schimel_No_151736_2015_BL_385190_7th_.