Border checkpoints and substantive due process: abortion rights in the border zone.

• Author: Huddleston, Kate
• Position: III. H.B. 2 and Border Checkpoints as Unconstitutional Condition through Conclusion, with footnotes, p. 1776-1803

3. H.B. 2 AND BORDER CHECKPOINTS AS UNCONSTITUTIONAL CONDITION

   In the specific doctrinal context of abortion jurisprudence, then, H.B. 2 as applied to the border zone violates the Fourteenth Amendment's substantive due process guarantee because it has the effect of creating a substantial obstacle for undocumented women. Another means of thinking of the harm of H.B. 2 for undocumented women in the border zone, though, is not merely through the ramifications of the legislation--the functional inability to access abortion services--but, more broadly, as creating a choice that is constitutionally suspect: a choice between exercising one's fundamental right and avoiding exposure to immigration enforcement. Thus, another way to conceive of the problem--ultimately arriving at the same conclusion, but with an analysis generalizable to rights burdenings beyond the abortion context-is through the doctrine of unconstitutional conditions. Framing the problem in more general terms and examining H.B. 2 on these grounds demonstrates the way that state legislation with spatially disparate effects may, more generally, create constitutional problems given the reality of internal checkpoints. Such legislation gives rise to unconstitutional conditions that impermissibly pressure rights. The key insight of this Part is that we ought to conceive of barriers to access engendered by the confluence of spatially disparate state legislation and federal internal immigration checkpoints as an unconstitutional-conditions problem.

   Evaluating the problem through the lens of unconstitutional conditions provides a separate ground for H.B. 2's unconstitutionality, independent of the Casey analysis. Whether undocumented women are in fact deterred from seeking an abortion by the closure of all clinics south of border checkpoints is not the relevant inquiry under unconstitutional-conditions doctrine--instead, the question is whether women must choose between a discretionary benefit and the exercise of a constitutional right. (137) The de facto requirement created by Texas law that a woman without legal status must pass through an internal Border Patrol checkpoint to reach abortion services creates an unconstitutional condition on the exercise of the fundamental right, because of the coercive nature of the choice. Such an unconstitutional condition is a violation of a woman's right to choose to terminate her pregnancy.

   This mode of analysis indicates that the situation that H.B. 2 creates for undocumented women in southern Texas is one instantiation of a larger problem: the way that the conjunction of internal checkpoints and state legislation with spatially disparate effects on access to rights may create a constitutionally impermissible choice for undocumented individuals. This insight--that unconstitutional-conditions doctrine provides an alternative means of evaluating the problem--and the subsequent evaluation require further interrogation. This Part's analysis turns first to the nature of the benefit at stake, then to an evaluation of whether there is sufficient germaneness for an unconstitutional condition, and finally to the additional complication of the multiple state actors who together give rise to the condition.

   The functional requirement that an individual choose between exercising a fundamental right-in this case, the right to obtain an abortion-and forgoing questioning by Border Patrol officers as to one's immigration status implicates this transsubstantive doctrine. The underlying idea of unconstitutional-conditions doctrine is, essentially, that the government cannot create an impermissibly rights-pressuring choice. (138) As the Supreme Court recently explained in Koontz v. St. Johns River Water Management District, in the individual-rights context the doctrine bars "the government [from] deny[ing] a benefit to a person because he [or she] exercises a constitutional right." (139) For example, a state may not make public employment contingent on an individual's giving up her right to free speech. (140) Such a choice is impermissible even if the benefit is not one to which the person has a "right ... and even though the government may deny him the benefit for any number of reasons." (141) Moreover, it is impermissible regardless of what the individual ultimately chooses--whether she opts to pass up the benefit or instead to forgo exercise of the right. (142) Recent takings cases have required a "nexus" and "rough proportionality" between the relinquishment of the rights exercise and the granting of the benefit. (143)

   Originally applied in the context of economic substantive due process, (144) unconstitutional-conditions doctrine--or, as it is sometimes termed, the conditional-offer problem (145)--applies to a situation in which the exercise of an individual constitutional right is conditioned. Apparently not limited to any particular subset or constellation of rights, the doctrine is a "multi-function doctrine" (146) useful in evaluating situations in which state action leads to a situation that conditions rights on forgoing a benefit, or vice versa. The Supreme Court has used unconstitutional-conditions analysis to evaluate claims that state action violates freedom of speech, (147) free exercise of religion, (148) the right to refrain from self-incrimination, (149) the right to travel, (150) and the Takings Clause. (150) Federal courts of appeals have recognized the applicability of unconstitutional-conditions analysis to claims of violations of freedom of speech, petition, assembly, and association; (152) the Establishment Clause; (153) freedom from unreasonable search and seizure; (154) the Takings Clause; (155) the Sixth Amendment right to trial; (156) the right to appeal; (157) and the right to access to a federal forum. (158)

   One theorist has described unconstitutional-conditions doctrine as triggered when governmental action creates the biconditional "if ~x, then y; and if x, then ~y." (159) This formulation dovetails with the Supreme Court's most recent explication of the doctrine, in Justice Alito's majority opinion in Koontz: that whether the individual whose rights are under pressure chooses the benefit or the right is irrelevant. (160) Under this conceit, the sort of situation created by border checkpoints and H.B. 2 is a quintessential unconstitutional-conditions problem. If the individual chooses to undergo questioning as to immigration status by the Border Patrol, she may travel north to access abortion services; if she declines to exercise her right to access an abortion, she may protect herself from such immigration enforcement by remaining in the border zone. (161) A state actor presumably could not directly create a barrier to an individual's travel to access abortion. (162) The unconstitutional-conditions doctrine means that the indirect creation of a barrier, by legislating out of existence all the clinics within a given area and consequently giving rise to the biconditional, is likewise impermissible. (163)

   This straightforward formulation, though, elides some of the messiness of the unconstitutional-conditions doctrine as formulated and explicated by the federal courts. (164) First, and least problematically, we might question whether abortion access is a right that falls within the scope of unconstitutional-conditions doctrine at all. Next, we might wonder whether the biconditional formulation is appropriate here--whether not having to cross immigration checkpoints is a "discretionary benefit" for the purposes of the doctrine. We might then ask whether there is any conditioning at all and, if so, whether that conditioning is in fact constitutionally impermissible. And, lastly, we ought to consider the fact that the application of the unconstitutional-conditions doctrine in this circumstance, where the decisions as to the grant or denial of the benefit and the creation of the condition are due to the independent actions of a state and a federal actor, implicates the role of intentionality in the doctrine.

   The unconstitutional-conditions analysis deserves a caveat. The doctrine both is part of constitutional common law and applies in a variety of doctrinal contexts regarding individual rights. (165) Consequently, it is not the most straightforward area of doctrinal analysis; like all human constructs, it is imperfectly articulated. But it is a methodological tool that sheds particular light on situations in which individual rights seem constrained rather than expanded by choice. This Part's analysis starts from the basic premises that unconstitutional-conditions doctrine, while not perfectly contoured in all respects, is an ordinary feature of constitutional law, and that its implications for the border zone deserve attention. (166)

   1. The Right

      Unconstitutional-conditions doctrine has particular salience in the abortion context, as is relevant to the fact-specific problem of H.B. 2. Two selective-funding cases--Maher v. Roe, challenging Connecticut's funding of pregnancy expenses but not abortions for indigent women, (167) and Harris v. McRae, challenging similar federal funding restrictions in the Medicaid program (168)--have been interpreted as paradigmatic unconstitutional-conditions cases that shed light on a germaneness requirement for a condition to be constitutional. (169) Rust v. Sullivan, which held that restrictions on federal funding for abortion counseling did not violate individuals' abortion rights because the restrictions did not change women's available choices, also used unconstitutional-conditions reasoning. (170) More recently, the Seventh and Eighth Circuits have applied unconstitutional-conditions reasoning to determine whether abortion rights were impermissibly burdened. (171) The benefit involved in these cases, selective funding, is different from that at stake in the context of border checkpoints and H.B. 2. But the cases demonstrate that for the right at...