Gillian E. Metzger, Abortion, Equality, and Administrative Regulation

• Publication year: 2007

ABORTION, EQUALITY, AND ADMINISTRATIVE REGULATION

Gillian E. Metzger^*

Abortion and equality are a common pairing; courts as well as legal scholars have noted the importance of abortion and a woman's ability to control whether and when she has children to her ability to participate fully and equally in society. Abortion and administrative regulation, on the other hand, are a more unusual combination. Most restrictions on abortion are legislatively imposed, while guarantees of reproductive freedom are constitutionally derived, so administrative law does not frequently figure in debates about access to abortion.

Administrative regulation of abortion merits closer study. Fights over reproductive rights are increasingly occurring in administrative contexts. The recent struggle over the federal Food and Drug Administration's (FDA's) refusal to grant over-the-counter access to emergency contraception is a prime example, with recent expansions in state licensing requirements for abortion clinics being another.¹Such licensing requirements can be quite onerous, forcing clinics to undertake costly renovations or imposing conditions that clinics are unable to meet.²Yet instances also exist of administrative regulation being used affirmatively to foster women's reproductive rights, such as Illinois's recent rule requiring pharmacists to dispense emergency contraception if they dispense other forms of contraception.³

This trend towards increasing administrative control is reason enough to pay greater attention to the interaction of administrative law and reproductive rights. Perhaps more relevant to this Symposium, focusing on administrative abortion regulation is additionally worthwhile because it demonstrates unexpected obstacles to successfully challenging abortion restrictions as unconstitutional gender discrimination. Numerous grounds exist on which to conclude that measures singling out abortion for regulation should constitute gender discrimination for purposes of equal protection analysis. As Reva Siegel has argued, abortion restrictions could be viewed as gender discriminatory because they are often animated by traditional-and constitutionally illegitimate-views concerning women's proper roles.⁴

Relatedly, abortion restrictions could be seen as discriminatory because the ability to control their reproductive capacity is central to women achieving full and equal status in society.⁵Alternatively, on a more basic physiological level, abortion-specific regulation could be viewed as gender discriminatory because it exclusively targets women: "Only women become pregnant; only women have abortions."⁶Further, as Cass Sunstein has argued, this means that abortion regulations represent facial or de jure sex classifications, making any additional demonstration of discriminatory purpose unnecessary.⁷

Of course, these arguments failed to persuade the Supreme Court, which in its 1974 Geduldig v. Aiello decision insisted that not every pregnancy classification was in fact sex based.⁸In Geduldig, the Court rejected a gender equal protection challenge to a government disability program that denied benefits for disabilities connected to pregnancy, famously concluding that the program did not distinguish between men and women but instead between "pregnant women and nonpregnant persons."⁹The Court has also upheld abortion-specific restrictions without seeming to find it necessary to subject such measures to established gender equal protection scrutiny.¹⁰Yet more recently, the Court has indicated greater awareness of the relationship between regulation of reproduction and sex discrimination. Most notably, Planned

Parenthood of Southeastern Pennsylvania v. Casey invoked women's equality concerns in concluding that access to abortion should continue to receive constitutional protection under the Due Process Clause.¹¹On other occasions, the Court has reinforced constitutional prohibitions on sex-role stereotyping, as well as underscored how stereotypes based on women's roles as mothers and caregivers restrict their employment opportunities.¹²

These recent decisions might suggest that the time has come to try to recast abortion rights in equality terms, as many scholars have long argued.¹³An additional impetus is the diminished protection for abortion rights under due process that resulted from Casey's replacing the trimester framework of Roe v. Wade with the undue burden standard.¹⁴Moreover, administrative abortion measures might appear particularly susceptible to gender equal protection challenge. Administrative regulation of abortion is overwhelmingly health regulation; the focus is on abortion as a medical procedure, and the government's only stated interest is protecting the health of women obtaining abortions (as opposed to that of preserving fetal life, the other recognized government interest in this area). This health focus is not coincidental; administrative agencies typically play a major role in health regulation.¹⁵But this focus means that the unique aspects of abortion-its impact on the fetus and the social, moral, and psychological effects of terminating potential life- are largely absent in regard to administrative abortion regulations. Although abortion involves women's reproductive organs, that does not distinguish it under a health perspective. Instead, the question is what risks and complications are associated with abortion compared to other forms of surgery (or, in the case of medical abortion, compared to other prescription drugs). Widespread agreement on the minimal risks associated with first and early second trimester abortions provides an objective basis for concluding that regulations targeting such abortions represent instances where medical procedures sought by women are being singled out for unwarranted burdens.

What this line of argument fails to account for, however, is the regulatory and administrative character of abortion health measures. Paradoxically, rather than underscoring their gendered nature, emphasizing these measures' health focus serves to immunize them against constitutional challenge. Doing so makes these measures appear as a species of ordinary regulation with the effect that courts assess their constitutionality against the background of the government's broad power to regulate in the name of health as well as doctrines of deference to administrative expertise. Framed in this fashion, regulations targeting abortion on health grounds become simply a manifestation of the government's leeway to regulate in a case-by-case, incremental fashion, instead of grounds for suspicion.

The net result is that erasing abortion's uniqueness to foster a gender equal protection challenge serves to undermine the claim that it is illegitimate to target abortion for regulation. Put differently, the perception of abortion as unique has a dual-edged character; it allows abortion to be singled out for regulation, but also simultaneously singles out abortion for protection against regulation. This suggests that equal protection analysis is unlikely to offer greater prohibitions on abortion targeting than are available under abortion- specific jurisprudence rooted in due process. More generally, while courts may come to recognize the importance of reproductive rights to women's equality, such recognition is more likely to come by integrating equality concerns into current due process frameworks than by independent equal protection challenges.

Yet at the same time, the perception of abortion health measures as ordinary regulation opens up the possibility of challenging these measures in more straightforward administrative law terms. Administrative law does not offer the permanent protections of constitutional law and can be quite deferential to administrative determinations. Nonetheless, administrative law's requirements of explanation and reasoned decisionmaking may in the end offer the greatest protection against regulations that single out abortion for disfavored treatment.

Part I of this Article describes the increasing prevalence of administrative regulation of abortion, focusing in particular on measures that target abortion for regulation in the name of protecting women's health and recent federal regulation of drugs relating to reproduction. Part II then takes up the puzzle of why such abortion health regulations have not proved susceptible to gender equal protection challenges. This Part discusses not only the impediments created by Geduldig and the Court's abortion precedent, but also the less frequently recognized obstacles created by these regulations' health focus and administrative character. Part III addresses the question of whether administrative law represents a more auspicious vehicle for challenging measures that single out abortion for regulatory burdens.

I. RECENT INSTANCES OF ADMINISTRATIVE ABORTION REGULATION: TARGETED REGULATION OF ABORTION PROVIDERS AND FDA REGULATION OF REPRODUCTIVE DRUGS

Administrative regulation of abortion is not a new phenomenon. Although triggering criminal penalties, abortion bans pre-Roe were also administratively implemented through license revocation proceedings for doctors who provided abortions.¹⁶Post-Roe, states and local governments imposed numerous requirements on abortion in the name of protecting women's health. Many of these measures were legislatively imposed; indeed, abortion and reproduction generally appear singular in the extent to which the substantive details of health regulation are legislatively determined rather than left to administrative discretion.¹⁷Nonetheless, in the post-Roe period, abortion providers were occasionally subjected to administrative restrictions as well.¹⁸Recently, however, abortion regulation justified on health grounds-and more specifically, abortion health regulations promulgated by administrative agencies-seem to be growing more prevalent. Two particular instances of such administrative regulation deserve special note...