Casey and the clinic closings: when 'protecting health' obstructs choice.

• Author: Greenhouse, Linda
• Position: Continuation of II. The Clinic Closings: Prevention, Not Persuasion through Conclusion, with footnotes, p. 1454-1480

1. The Justification for Admitting Privileges Laws

   States claim to protect women's health by requiring abortion providers to have admitting privileges at a local hospital. (121) Yet there are deep questions about whether evidence supports the alleged benefits to women's health. Abortion during the first trimester of pregnancy, when eighty-nine percent of abortions take place, (122) is extremely safe, with complications that require a hospital visit occurring in less than (0). (05) % of early abortions. (123) Of this small number of complications, many are minor, presenting symptoms similar to those of early miscarriage, which is a common reason for emergency-room visits and a condition that emergency-room physicians are accustomed to treating. (124)

   Despite the safety of abortion procedures, states single out abortion for restrictions not imposed on procedures of comparable risk. In Texas, the district court found that at the time of passage of the state law imposing admitting privilege and ambulatory surgical center requirements on abortion, "abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.... [It was] much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny." (125) (As the state's safety record might suggest, prior to passage of the Texas law, abortion procedures were already subject to rigorous health regulation.) (126) The district court found that, despite this safety record, the legislature had singled out abortion clinics for restrictions that were not imposed on facilities providing comparable medical services. (127) In Wisconsin, the state stipulated before trial that for no other outpatient procedures were doctors required to have hospital admitting privileges. (128) The state explained neither the reason for singling out abortion for special treatment nor the rush to pass its law, which was enacted "precipitously" in 2013. (129)

   In defending the need for admitting privileges, states assert that the requirement serves important credentialing and monitoring functions, assures necessary "continuity of care," and prevents patient abandonment.* 130 While the states' claims imply that doctors who receive admitting privileges are superior in quality, that is not necessarily the case. Requirements for admitting privileges may have nothing to do with quality of care. (131) Many hospitals condition the award of admitting privileges on a certain number of patient admissions, setting quotas impossible for most abortion providers to meet when their patients so rarely need hospital care. (132) Hospitals may refuse to extend admitting privileges to doctors who perform a procedure to which the hospital's governing body has religious objections, (133) or may withhold admitting privileges for other unspecified reasons. (134) Patient care is not likely to be improved by requirements that are medically unnecessary and sufficiently burdensome to shut down the very facilities at which patients seek care. (135)

   A further concern about the quality of the evidence supporting admitting privilege requirements has emerged in recent litigation. An activist named Vincent Rue has organized the set of witnesses who testify across state lines in support of the admitting privilege statutes. (136) Decades ago, Rue played a central role in developing "post-abortion syndrome" or "PAS," the claim that abortion traumatizes and inflicts psychological harm on women. (137) Rue not only l'ecruits witnesses to appear in court, but sometimes ghostwrites their testimony, (138) and his conduct has drawn reproach from judges in Alabama, Texas, and Wisconsin. (139) For example, Judge Thompson, rejecting one Rue-recruited expert, said, "Whether Anderson lacks judgment, is dishonest, or is profoundly colored by his bias, his decision to adopt Rue's supplemental report and submit it to the court without verifying the validity of its contents deprives him of credibility." (140) In the Texas case, Judge Yeakel had this to say:

   The credibility and weight the court affords the expert testimony of the State's witnesses Drs. Thompson, Anderson, Kitz, and Uhlenberg is informed by ample evidence that, at a very minimum, Vincent Rue, Ph.D., a non-physician consultant for the State, had considerable editorial and discretionary control over the contents of the experts' reports and declarations. The court finds that, although the experts testified that they personally held the opinions presented to the court, the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts' opinions. Further, the court is dismayed by the considerable efforts the State took to obscure Rue's level of involvement with the experts' contributions. (141) B. Judicial Review of Admitting Privileges Litigation

   How does the dispute over the justification for admitting privileges laws arise in litigation over the laws' constitutionality? Factual questions concerning the health justification of such laws are distinct from questions concerning their impact on abortion access--the "effects" prong of the undue burden inquiry.

   Courts are divided over the need to assess factual justifications for the restrictions. Led by the Seventh Circuit, some courts require the state to demonstrate the factual basis of its claim that restricting abortion promotes women's health; these courts apply undue burden analysis in a weighted balancing test that attends to the strength of the state's showing that the restriction achieves that goal. (142) The Fifth Circuit, by contrast, asserts that it is wholly improper for judges to examine the factual basis of the state's claim that a restriction on abortion promotes women's health. The circuit applies deferential rational-basis review, simply credits the state's claim to regulate in the interests of women's health, and then determines whether the law's impact creates a substantial obstacle. (143) In short, the Seventh Circuit reads Casey as requiring courts to evaluate the factual basis of the state's claim to restrict abortion to promote women's health; the Fifth Circuit reads Casey to prohibit this very inquiry. In what follows, we contrast these two very different approaches to applying undue burden analysis to health-justified restrictions on abortion.

   The Seventh Circuit's approach to review of admitting privileges legislation, first articulated by Judge Posner, makes factual support for the state's health interest central in applying the undue burden test. In December 2013, the Seventh Circuit affirmed an order preliminarily enjoining enforcement of a recently enacted Wisconsin admitting privileges requirement. (144) Judge Posner observed that while the state justified the requirement solely on the ground of protecting women's health, the state's lawyer at oral argument "did not mention any medical or statistical evidence" and "[n]o documentation of medical need for such a requirement was presented to the Wisconsin legislature when the bill that became the law was introduced on June (4) of this year." (145) The medical evidence was "feeble," Judge Posner said, "yet the burden [was] great." (146) He explained that the judge had to consider the evidentiary basis of the state's claim that it had health justifications for restricting abortion when the judge applied the undue burden test:

   The cases that deal with abortion-related statutes sought to be justified on medical grounds require not only evidence (here lacking as we have seen) that the medical grounds are legitimate but also that the statute not impose an "undue burden" on women seeking abortions. The feebler the medical grounds, the likelier the burden, even if slight, to be "undue" in the sense of disproportionate or gratuitous. (147) Judge Posner derived from Casey two crucially important messages: that states seeking to justify a health-related restriction must produce evidence supporting the health basis of their restriction, and that the strength of this evidentiary showing is relevant in determining whether any related burden on access is, in Casey's terms, undue. Judge Posner reaffirmed this understanding in a subsequent opinion permanently enjoining enforcement of Wisconsin's admitting privileges law. (148)

   Judge Posner's opinion adopting this weighted balancing test in Planned Parenthood of Wisconsin v. Van Hollen has proven influential. Judge Thompson cited it in his Alabama admitting privileges decision three months later, observing, " [I]t is not enough to simply note that the State has a legitimate interest; courts must also examine the weight of the asserted interest, including the extent to which the regulation in question would actually serve that interest." (149) On this account, the "weight" of an interest turns on a question of fact: how well the challenged regulation would in fact--"actually"--advance the interest it is asserted to serve. Judge Thompson explained that the court was to take the evidence the state amassed justifying the regulation into account in applying the undue burden framework; he reasoned that "the court examines the severity of obstacles created by the regulation as well as the weight of the State's justifications for the regulation, and then determines whether the obstacle is more significant than is warranted by the justifications." (150)

   Another recent opinion requiring an inquiry into the factual basis for a health-justified abortion restriction came from the Ninth Circuit in June 2014. In Planned Parenthood of Arizona v. Humble, the panel preliminarily enjoined an Arizona law requiring doctors to use an outdated protocol for administering the medication that causes an early term abortion. (151) States have increasingly attempted to curb the growing popularity of medication abortion (152) by forbidding doctors to...