"Undue" delegation: private delegation and other strategies to challenge admitting-privileges laws.

• Author: Ma, Jacqueline Y.

INTRODUCTION

In November 2015, the Supreme Court granted certiorari to Whole Woman 's Health v. Cole (1) the first reproductive rights case to reach the court since Gonzales v. Carhart (2) eight years before. In the intervening time, states have passed an astonishing number of laws and regulations that encroach on women's access to abortion. Many such laws ostensibly aim to protect the woman and her fetus. Yet these same laws do so by imposing medically unnecessary and onerous procedural requirements on women, (3) which can erect massive barriers to abortion access for individuals. Other state laws aim to regulate not the activities of women, but those of abortion providers, who are not a protected class. The reproductive rights movement terms these laws Targeted Regulations of Abortion Providers, or TRAP laws. (4) State legislatures' passage of TRAP laws accelerated after the Supreme Court's decision in Carhart, which was taken to signal judicial willingness to uphold state laws that aim to protect an unborn fetus at the expense of reducing a woman's ability to choose. (5)

This Note focuses on admitting-privileges laws, a type of TRAP law that requires physicians who provide abortions to obtain staff privileges at a hospital within a certain distance from their clinics. Without these required privileges, physicians performing abortions risk civil and criminal penalties. These laws are especially concerning because they give area hospitals an effective veto over a clinic's operations, effectively outsourcing the power to deny licenses to private entities. Admitting-privileges decisions are often discretionary for hospital administrators; a hospital's denial of admitting privileges also lacks state oversight or external appeals.

Admitting-privileges laws are being ratified throughout many states, but have proven resistant to traditional substantive due process challenges. In addition to traditional "undue burden" analysis, a multipronged approach to reproductive rights litigation and advocacy is necessary. Part I of this Note sets forth a brief history of the right to choose an abortion and the current federal legal framework. Then, it details recent state legislative and ballot initiatives aimed at regulating abortion providers. Part II explains the complications of using the "undue burden" doctrine in constitutional challenges to state action, as illuminated by recent cases litigating admitting-privileges laws. It further introduces private-delegation challenges as an alternative method to examine the constitutionality of these laws. Part III looks at the history of private-delegation challenges with respect to admitting- privileges laws and touches on other possible avenues to challenge admitting-privileges regulations.

1. Abortion in the Post-Roe Era

   In 1973, the Supreme Court decided Roe v. Wade, which recognized that the Due Process Clause of the Fourteenth Amendment protects a right to privacy that extends to a woman's decision to have an abortion. (6) Roe's effect was remarkable. Before Roe, each individual state regulated abortions and the accessibility thereof with their traditional police powers. At the time of the decision, four states had repealed anti-abortion laws, while thirteen had begun reforms of their abortion laws. (7) Almost all the rest banned abortion in most cases. (8) After the Supreme Court identified a right to choose an abortion grounded in the federal Constitution, the annual number of legal abortions rose through the 1970s, leveling off in the 1980s. (9) After Roe, the Supreme Court also decided Doe v. Bolton, (10) which assessed the elaborate procedural barriers to abortion erected by the state of Georgia and invalidated some of them for being not reasonably related to the state interest (11) or redundant. (12) Doe has been interpreted to signal that "just as states may not prevent abortion by making the performance a crime, states may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers." (13)

   1. Relevant Federal Statutes and Regulations

   Despite Doe's warning, pro-life lobbyists have encouraged the passage of numerous federal statutory limits on abortion. First, Congress passed laws restricting the use of federal funds for elective abortions. (14) Only four years after Roe, Congress passed the Hyde Amendment, banning the use of any federal funds for abortion absent a pregnancy that is the result of incest, rape, or that endangers the woman's life. (15) Because the law governs Medicaid spending, its effects are disproportionately felt among the poorest populations. (16) Over the years, the reach of the Hyde Amendment has extended to limit the use of federal funds for abortion for federal employees and women in the Indian Health Service. (17)

   Congress also passed "conscience" laws, including the Church Amendments, (18) which codify exemptions from any hypothetical federal requirement to provide abortions, if a hospital receiving certain federal funds or their employees object on the basis of religious or moral beliefs. Importantly, the Church Amendments also govern hospital personnel decisions. They prohibit any entity receiving money from certain federal entities from discriminating against any physician or other health care worker on the basis of their decision either to perform or abstain from performing an abortion. (19)

   Over the years, Congress has also introduced more targeted legislation regulating elective abortions. Certain second trimester abortions are criminalized by the Partial-Birth Abortion Act of 2003 (20)--namely the procedure of intact dilation and extraction, or partial-birth abortion, upheld by the Supreme Court in 2007 and discussed infra. (21) Most recently, the Patient Protection Affordable Care Act (PPACA (22)) was passed into law, creating collateral consequences for access to abortion that largely preserved the status quo. (23) Under the PPACA, coverage for abortion services may not be required as part of the federally established essential benefits package. (24) Although private health plan providers may choose to fund abortions, at least one plan within a state Marketplace must be limited in its coverage only to those types of abortions funded by federal law. (25) State Medicaid is likewise constrained by the Hyde Amendment; under that law, Medicaid may not cover abortions beyond the cases of life endangerment, rape, or incest. (26) If providers do cover procedures in situations beyond those permitted by federal law, these procedures must be paid from a separate funding pool segregated from federal funds. (27)

   Progress of federal abortion legislation remains stalled. First, the PPACA leaves state abortion regulations untouched. States may continue to pass laws that completely prohibit insurance coverage for any abortions by plans sold in their state Marketplace, even for pregnancies that result from rape or incest, or threaten a woman's life. (28) Moreover, legislation directly concerning the right to choose an abortion has stalled. Senate Democrats recently blocked a bill that would have banned most abortions after twenty weeks of pregnancy. (29) The Hyde Amendment Codification Act, which aims to make the Hyde Amendment permanent law instead of a yearly rider, was referred to the Committee on Health, Education, Labor, and Pensions in January and has not since emerged. (30) Meanwhile, the same Congress is also considering S. 1696, or the Women's Health Protection Act, which aims to prohibit state regulations passed under the pretext of protecting women's health that suppress abortion provision. (31) The Act was reintroduced in Congress in 2015 and has also not yet emerged from the Subcommittee on Health. (32) Most recently, the House of Representatives has passed the Born-Alive Abortion Survivors Protection Act, (33) which requires health care practitioners present when a fetus is "born alive" following an abortion to exercise the same degree of care necessary to preserve the life of a fetus born at the same gestational age. (34)

2. State Regulations of Abortions

   Although abortion services expanded significantly after Roe, (35) state-level restrictions have also increased--especially recently--under the impetus of pro-life lawmakers and advocates. (36) Two years before Roe, Americans United for Life (AUL) was established to spread pro-life policies, aiming to overturn Roe through federal legislation. (37) AUL also claims credit for pioneering the state-based model legislative strategy (38) that has spread largely identical abortion regulations throughout the States and is likewise espoused by the American Legislative Exchange Council (ALEC). Established the same year that Roe was decided, ALEC is known for uniting conservative legislators, policy analysts, and representatives from corporations to create model state legislation embodying conservative policies. (39) Together with other conservative lobbying groups such as National Right to Life (NRTL), (40) these organizations create and promote pro-life model legislation implemented throughout the states.

   In the years following Roe, lower federal courts have invalidated many abortion regulations. State legislators responded in turn by limiting public funding for abortions or regulating the primary conduct of women with measures such as mandatory counseling periods. (41) In the 1990s, AUL pivoted to a strategy of incrementally increasing state-imposed restrictions on a woman's right to choose. (42) Concurrently, state focus on regulating clinics and other elective abortion providers (rather than the woman herself) reemerged in the 1990s and has accelerated since. (43)

   1. State Measures

      Due to deadlock at the federal level, the real arena of the abortion access struggle is state-by-state. In the last two decades, state statutes regulating abortion have become more artfully drafted under the influence of multi-pronged pro-life legislative and...