Amicus Curiae Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274)

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OFFICE OF THE CLE“%

IN THE

Supreme Court of the United States

WHOLE WOMAN’S HEALTH; AUSTIN WOMEN’S HEALTH CENTER;

KILLEEN WOMEN’S HEALTH CENTER; NOVA HEALTH SYSTEMS

d/b/a REPRODUCTIVE SERVICES; SHERWOOD C. LYNN, JR., M.D.;

PAMELA J. RICHTER, D.wv.; and LENDOL L. Davis, M.D., on behalf

of themselves and their patients, ie

Petitioners,

_—

KIRK COLE, M.D., COMMISSIONER OF THE TEXAS DEPARTMENT OF

STATE HEALTH SERVICES; MARI ROBINSON, EXECUTIVE DIRECTOR

OF THE TEXAS MEDICAL BOARD, in their official] capacities,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR AMICUS CURIAE INFORMATION

SOCIETY PROJECT AT YALE LAW SCHOOL

IN SUPPORT OF PETITIONERS

PRISCILLA J. SMITH

Counsel of Record

YALE LAW SCHOOL

319 Sterling Place

Brooklyn, New York 11238

(718) 399-9241

priscilla.smith@yale.edu

Attorney for Amicus Curiae

Information Society Project

at Yale Law School

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...0.0...........ccsecssseseeeees lil

INTEREST OF AMICUS CURIAE .............0cccccccc0es 1

SUMMARY OF ARGUMENT................cccceeesseeeeeees 1

TE irildisciiesinsdsiisiiesniciniiinincianionininiinenennannseen 5

I. The Undue Burden Standard Requires an

independent Judicial Inquiry Into

Whether a Health-Justified Abortion

Regulation Actually Serves the State’s

Interest in Women’s Health........................... 5

A. Casey Places Important, But Different,

Limitations on Permissible Means of

Serving the Valid Interests in

Potential Life and Women’s Health. ......... 7

B. Independent Judicial Review of

Health-Justified Restrictions Protects

the Decisional Right Casey

eS Serer eereree am 13

C. Independent Judicial Review of

Health-Justified Restrictions Informs

the Undue Burden Inquiry. ..................... 15

D. Carhart Does Not Support the Fifth

Circuit's Rational Speculation Review....21

E. Courts Often Conduct Independent

Review of Fit to Preserve

Constitutional Limits.......................00ee000 26

Il. If the Plaintiff Shows that a Health-

Justified Abortion Regulation Targets

Abortion Only, the Burden Should Shift

to the Government to Prove that the

Regulation Actually Promotes’ the

Interest in Women’s Health.......................... 28

CSAP cccncsessssscntavantsreoiceshnnenaueelaan 32

TABLE OF AUTHORITIES

Cases

Dolan v. City of Tigard,

I i ererennnsneseonnnenee 27, 31

English v. Gen. Elec. Co.,

I nena 27

Entergy Nuclear Vermont Yankee, LLC v.

Shumlin,

ee 27

Gonzales v. Carhart,

ee passim

Kelo v. City of New London,

a 26, 27

Keyes v. Sch. Dist. No. 1, Denver, Colo. I,

A | ee 4

Koontz v. St. Johns River Waier Mgmt.,

rece 27

Mazurek v. Armstrong,

nr 25, 26

Pacific Gas and Electric Co. v. State Energy

Resources Conservation and Development

Commission,

EET 27

Planned Parenthood v. Danforth,

A 12,13

Planned Parenthood v. Strange,

9 F. Supp.3d 1272 (M.D. Ala. 2014) .................... 5,19

ill

Planned Parenthood v. Strange,

33 F Supp.3d 1330 (M.D. Ala. 2014). ............0000..... 5

Planned Parenthood Ariz., Inc. v. Humble,

753 F.3d 905 (9th Cir. 2014)..........00000000000.. 19, 20, 22

Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott (Abbott ID),

748 F.3d 583 (5th Cir. 2014)..................00.2. 21, 23, 24

Planned Parenthood of the Heartland, Inc. v.

Iowa Bd. of Med.,

865 N.W.2d 252 (Iowa 2015).................-.sssssssssssseees 20

Planned Parenthood of Se. Pa. v. Casey,

5O5 U.S. 833 (1992) ........cceccceccoessessecsessesseeoeeans passim

Planned Parenthood of Wis. v. Van Hollen,

94 F. Supp. 3d 949 (W.D. Wisc. 2015),

affd sub nom, Planned Parenthood of Wisc.

v. Schimel, 806 F.3d 908 (7th Cir. 2015)............ 2,17

Planned Parenthood of Wis. v. Van Hollen,

738 F.3d TOS C7ths Cie. BOUA) ........000000000cecccccccsccceeee. 19

Planned Parenthood of Wis. v. Schimel,

806 F.3d 908 (7th Cir. 2015). ...............00. 16, 17, 18

Roe v. Wade,

eer 5, 6, 9, 11

United States v. Virginia,

518 U.S. 515

REL ee ee aE Ce 30

Whole Woman’s Health v. Cole,

790 F.3d 563 (5th Cir. 2015), mandate stayed

pending judgment by 185 S. Ct. 2923, and cert.

granted, 2015 WL 5176368 (U.S. Nov. 13,

I 21, 24, 25

Whole Woman's Health v. Lakey,

46 F. Supp. 3d 673 (D. Tex. 2014), affd

in part, vacated in part, rev'd in part

sub nom. Whole Woman's Health v.

Cole, 790 F.3d 563 (5th Cir. 2015),

mandate stayed pending judgment by

135 S. Ct. 2923, and cert. granted,

2015 WL 5176368 (U.S. Nov. 13, 2015)

SL SUIT caceieteitsetisseieilchpiaseiiiaileseeaibdnat 2, 18, 20, 25

Whole Woman's Health v. Lakey,

769 F.3d 285 (5th Cir. 2014),

vacated in part, 135 S. Ct. 399 (2014).................... 21

Statutes and Regulations

Act of July 12, 2013, 83d Leg., 2d C.S.,

ch. 1, §§ 1-12, 2013 Tex. Sess. Law Serv.

4795-802 (West) (codified at TEX. HEALTH

& SAFETY CODE ANN. §§ 171.0031, 171.041-.048,

171.061-.064, & amending §§ 245.010-.011;

Tex. Occ. CODE amending §§ 164.052

ai ei 2

PARTIAL BIRTH ABORTION BAN ACT OF 2003,

PuB. L. 108-105 (Nov. 5, 2003), ..................cceseeeeeees 23

Other Authorities

Ronald J. Allen, Presumptions, Inferences and

Burden of Proof in Federal Civil Actions--An

Anatomy of Unnecessary Ambiguity and a

Proposal for Reform, 76 Nw. U. L. REV.

CR IES henna eT: 28

AM. PSYCHOLOGICAL ASS’N, REPORT OF THE

APA TASK FORCE ON MENTAL HEALTH AND

ABORTION 6 (2008), http://www.apa.org/pi/

women/programs/abortion/mental-

Teresa Stanton Collett, Previability Abortion

and the Pain of the Unborn, 71 WASH. & LEE

As SI ita ieee iirilteincidinind 14

Steven Ertelt, Abortion has Caused

300K Breast Cancer Deaths Since Roe,

LIFENEWS (Jan. 17, 2011, 4:44 PM),

http://www.lifenews. com/2011/01/17/abortion-

Steven Ertelt, Abortions Cause Severe

Depression for Women, New Study Shows,

LIFENEWS (Jan. 2, 2006, 9:00 AM), http://www.

lifenews.com/2006/01/02/nat-1941/. ................22.020 14

Fact Sheet: Abortion, Miscarriage, and

Breast Cancer Risk, NAT'L CANCER INST. (last

updated Jan. 12, 2010),

http://www.cancer.gov/cancertopics/

factsheet/Risk/abortion-miscarriage

Se I IY i Ci eettecscnsnnccnicctiniancensenaionne 13

1 FEDERAL EVIDENCE § 3:3 (4th ed.). ............:00000000- 29

Linda Greenhouse & Reva B. Siegel, Casey

and the Clinic Closings: When “Protecting

Health” Obstructs Choice, 125 YALE L.J.—

rere eee 5, 21

Susan J. Lee, et al., Fetal Pain: A Systematic

Multidisciplinary Review of Evidence, 294

J. AM. MED. ASS’N 947 (2005).............cccccscscsesseeeeeees 14

Leo P. Martinez, Tax Collection and Populist

Rhetoric: Shifting the Burden of Proof in Tax

Cases, 39 HASTINGS L.J. 239, 255 (1988). ....4, 28, 29

J.P. McBaine, Burden of Proof: Degrees of

Belief, 32 CAL. L. REV. 242 (1944).......00.000000cccccceeeee 29

Priscilla J. Smith, If the Purpose Fits: the

Two Functions of Casey’s Purpose Inquiry,

71 WASH. & LEE L. REV. 1135, 1140-43 (2014)......... 5

Priscilla J. Smith, Js the Glass Half-Full?:

Gonzales v. Carhart and the Future of

Abortion Jurisprudence, 2 HARV. L. & POL’y REV.

(Online) (2008), available at

http://ssrn.com/abstract=1357506 .......................... 22

Marshall S. Sprung, Taking Sides: The Burden

of Proof Switch in Dolan v. City of Tigard, 71

8 6 ef ee 4, 28, 31

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INTEREST OF AMICUS CURIAE!

Amicus is the Information Society Project

(ISP) at Yale Law School,? an intellectual center

exploring the implications of new technologies for

law and society. The ISP focuses on a wide range of

issues such as the intersections between the

regulation and dissemination of information, health

policy, privacy concerns, First Amendment and

reproductive rights jurisprudence, and technology

policy. Many of the scholars associated with the ISP

have special expertise in First, Fourth and

Fourteenth Amendment jurisprudence and share an

interest in ensuring that the constitutionality of

abortion regulations is determined in accordance

with settled Fourteenth Amendment principles.

SUMMARY OF ARGUMENT

Rather than communicating the state's

preference for childbirth over abortion by attempting

to dissuade women from obtaining abortions, the

State of Texas has enacted regulations that, if

upheld, will restrict access to abortion by closing

more than 75% of abortion clinics in Texas. These

1 Written consent to file this brief was obtained from both

parties pursuant to S. Ct. Rule 37 and accompanies the filing of

this brief. No counsel for a party authored the brief in whole or

in part; no party or party’s counsel contributed money to fund

preparing or submitting the brief; and no person other than the

amicus curiae or their counsel contributed money intended to

fund preparing or submitting the brief.

2 This brief has been filed on behalf of a Center affiliated with

Yale Law School but does not purport to present the school’s

institutional views, if any.

3 Letter from Stephanie Toti to U.S. Court of Appeals for the

Fifth Circuit (Jun 12, 2015), JA 1429-34.

regulations are part of a new generation of abortion

restrictions that single out abortion for onerous

requirements that the state justifies on health

grounds, but that are neither imposed on other

medical procedures of comparable risk, nor reflect

generally accepted medical practice. The State of

Texas claims these regulations promote the state’s

interest in women’s health, but trial courts, in this

case and other similar cases, held that the evidence

of a link between the regulations and health is

“feeble,” “weak,” “tenous,” and “speculative.”5 A

fundamental question here is whether the trial

courts’ findings matter or whether, as the Fifth

Circuit held below, courts should defer entirely to a

State’s claim that restrictions further the interest in

health, transforming the undue burden standard

announced in Planned Parenthood v. Casey® into the

rational basis review advocated by the dissenters.’

4 See, e.g., Act of July 12, 2013, 83d Leg., 2d C.S., ch. 1, §§ 1-12,

2013 Tex. Sess. Law Serv. 4795-802 (West) (codified at TEX.

HEALTH & SAFETY CODE ANN. §§ 171.0031, 171.041-.048,

171.061-.064, & amending §§ 245.010-.011; TEx. Occ. CODE

amending §§ 164.052 & 164.055).

5 Whole Woman's Health v. Lakey, 46 F. Supp.3d 673, 684 (W.D.

Tex. 2014) (concluding that the State of Texas’ primary interest

in health is “misplaced” and that the State’s concerns are

“largely unfounded and are without a reliable basis.”), affd in

part, vacated in part, rev'd in part sub nom. Whole Woman's

Health v. Cole, 790 F.3d 563 (5th Cir. 2015), mandate stayed

pending judgment by 135 S. Ct. 2923, and cert. granted, 2015

WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274). See also Planned

Parenthood of Wis., Inc. v. Van Hollen, 94 F.Supp.3d 949, 980

(W.D. Wisc. 2015) (finding “tenuous link, if any, between the

proffered justifications and the State’s evidence’).

6 505 U.S. 833 (1992).

7 Jd. at 966 (Rehnquist, C.J., concurring in part and dissenting

in part) (arguing that “[a] woman's interest in having an

This Court should reject the Fifth Circuit’s radical

position and reaffirm Casey’s balance.

First, Casey’s undue burden standard, its text,

application in Casey and Gonzales v. Carhart,® and

its logic—the balance it struck between the woman’s

“free choice”? and the state’s interest in promoting

potential life over childbirth—requires courts to

independently examine whether a health-justified

abortion restriction actually serves the state’s

asserted health interests. A regulation that does not

actually promote women’s health, but instead

promotes an interest in potential life by shuttering

clinics, thus hindering the woman’s decision rather

than informing it, is invalid under Casey and

Carhart..° Failure to serve the health interest

entirely or a weak connection between the restriction

and the health interest is relevant to both the

purpose and effects prongs of the undue burden

standard. The Fifth Circuit’s approach mandating

extreme judicial deference is inconsistent with the

Supreme Court’s decisions in Casey and Carhart and

must be rejected.

Second, this Court should clarify the order of

proof required by Casey to guide review of health-

justified, as opposed to potential life-justified,

abortion is a form of liberty protected by the Due Process

Clause, but States may regulate abortion procedures in ways

rationally related to a legitimate state interest.”).

8 550 U.S. 124, 146 (2007).

® Casey, 505 U.S. at 877.

10 Jd. The determination of health fit is relevant to both the

purpose and effects prongs of Casey's undue burden standard.

See infra at II.C.

abortion restrictions.'! The balance Casey struck

and the general considerations of “policy and

fairness” that guide allocations of burdens of proof}?

require that if the plaintiff first shows that the

health-justified regulations target abortion alone,

imposing restrictions on its provision that do not

apply to procedures of comparable risk “as with any

medical procedure,”'* the inference is raised under

Casey that the regulation was not designed to

promote women’s health, and that it instead

invalidly promotes life by hindering the woman’s

decision, rather than informing it. In such a case,

the burden of proof shifts to the government to prove

that health-justified abortion regulations actually

serve the state’s valid interest in women’s health,

despite being applied only to abortion.'* If the

health-justified regulation on the other hand is

similar to those that apply to procedures of

comparable risk, the burden of proof remains with

the plaintiff to prove that despite the comparability

of the regulation it nonetheless fails to promote the

interest in health, or that it has the purpose or the

\! The order of proof is different for health-justified regulations

than potential life-justified ones.

12 Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 209

(1973) (quoting 9 J. Wigmore, Evidence § 2486, at 275 (3d ed.

1940)). See also Marshall S. Sprung, Note, Taking Sides: The

Burden of Proof Switch in Dolan v. City of Tigard, 71 N.Y.U. L.

REV. 1301 (1996); Leo P. Martinez, Tax Collection and Populist

Rhetoric: Shifting the Burden of Proof in Tax Cases, 39

HASTINGS L.J. 239, 255 (1988).

13 Casey, 505 U.S. at 878 (allowing “as with any medical

procedure, the State may enact regulations to further the

health or safety of a woman seeking an abortion”) (emphasis

added).

4 See Casey, 505 U.S. at 878.

effect of imposing an undue burden on the woman’s

“free choice.” Clarifying the order of proof in this

way will reduce uncertainty in the doctrine, increase

the quality of judicial factfinding, and best maintain

the balance Casey struck.

ARGUMENT

I. The Undue Burden Standard Requires an

Independent Judicial Inquiry Into Whether a

Health-Justified Abortion Regulation Actually

Serves the State’s Interest in Women’s Health.

As this Court recognized in Carhart, Casey

struck a balance!® between the woman’s right to

obtain a previability abortion announced in Roe uv.

Wade'* and the state’s interest in protecting

potential life, also acknowledged in Roe.!? While the

Justices preserved the core of Roe’s protections,'® the

‘5 Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (“Casey, in

short, struck a balance. The balance was central to its

holding.”). See generally Linda Greenhouse & Reva B. Siegel,

Casey and the Clinic Closings: When “Protecting Health”

Obstructs Choice, 125 YALE L.J. — (forthcoming 2016) (exploring

Casey logic and rationale); Priscilla J. Smith, If the Purpose

Fits: the Two Functions of Casey’s Purpose Inquiry, 71 WASH. &

LEE L. REV. 1135, 1140-43 (2014) (discussing Casey’s “middle

ground”); Planned Parenthood v. Strange (Strange IJ), 33 F

Supp.3d 1330, 1337-38 (M.D. Ala. 2014) (undue burden

standard is “middle ground” between sstrict-scrutiny and

rational basis review) (quoting Planned Parenthood v. Strange,

9 F. Supp. 3d 1272, 1282 (M.D. Ala. 2014)).

16 410 U.S. 113 (1973).

17 Jd. at 163 (acknowledging important interest in potential

life); id. at 159 (“The pregnant woman cannot be isolated in her

privacy.”).

18 See Casey, 505 U.S. at 869-74. See also id. at 856; id. at 852

(recognizing that the abortion decision “originate{s] within the

Court emphasized that the portion of Roe that

“speaks with clarity in establishing .. . the State’s

‘important and legitimate interest in potential life,’

.. . has been given too little acknowledgment and

implementation by the Court in its subsequent

cases.”'° To expand opportunities for state regulation

to further the “profound interest in potential life,””°

the Court abandoned strict scrutiny review and the

“rigid trimester framework” allowing regulation

furthering this interest throughout pregnancy.?! The

Court made clear that:

[rlegulations which do no more than

create a structural mechanism by which

the State, or the parent or guardian of a

minor, may express profound respect for

the life of the unborn are permitted, if

they are not a substantial obstacle to

the woman’s exercise of the right to

choose. ?2

Importantly, the Court also declined to adopt the

rational relationship test advocated by Chief Justice

Rehnquist in dissent.22 From now on, the “undue

zone of conscience and belief”); id. at 850 (recognizing that “men

and women of good conscience can disagree”).

19 Casey, 505 U.S. at 871 (quoting Roe v. Wade, 410 U.S. 113,

163 (1973)).

20 Jd. at 878.

21 The Court directly overruled those portions of Akron and

Thornburgh that struck down laws imposing a mandatory delay

and requiring provision of state-mandated information before a

woman could have an abortion. See id. at 883.

22 See e.g., Casey, 505 U.S. at 877; Gonzales, 550 U.S. at 157-58

(holding law properly promoted respect for life).

23 See Casey, 505 U.S. at 845 (distinguishing analysis from that

the rational relationship test advocated by Chief Justice

burden” standard would govern review of abortion

regulation.?4

The undue burden inquiry requires two

inquiries. As the Court wrote:

And a statute which, while furthering

the interest in potential life or some

other valid state interest, has the effect

of placing a substantial obstacle in the

path of a woman's choice cannot be

considered a permissible means of

serving its legitimate ends.”5

Thus, a Court must first determine whether an

abortion regulation furthers the interest in potential

life or health through permissible means, and second

evaluate whether it has the purpose or effect of

imposing an undue burden on the woman’s choice.

A. Casey Places Important, But Different,

Limitations on Permissible Means of

Serving the Valid Interests’ in

Potential Life and Women’s Health.

Different limitations apply within the undue

burden framework to _ potential _life-justified

restrictions and health-justified restrictions and

recognizing the differences is central to maintaining

Casey's balance. Reflected here is the notion that

there is a special moral valence to abortion that,

Rehnquist); cf. id. at 966 (Rehnquist, C.J., concurring in part

and dissenting in part).

24 Jd. at 878 (plurality opinion) (emphasis added).

25 Id. at 877.

because it concerns the unborn, warrants special

forms of regulation not imposed on other health

procedures. But these special forms of regulation are

limited to those that seek to vindicate the interest in

protecting potential life. The Court does not permit

health-justified abortion regulations to function as

an additional means of protecting the interest in

potential life. Instead, Casey allows health-justified

regulation of abortion where consistent with the

ordinary regulation of the practice of medicine. This

is because the aspect of abortion that is distinct is

the aspect involving potential life, not the medical

aspects of the procedure itself. The risks of the

abortion procedure itself can be compared with risks

of other procedures, apples to apples.

First, to further the interest in potential life,

“the means chosen by the State ... must be

calculated to inform the woman’s free choice, not

hinder it.”26 Moreover, the government must employ

modes of persuasion that are consistent with the

dignity of women. For example, the Court stressed

that information is calculated to inform “free choice”

only if it is “truthful and not misleading.”?? Finding

that mandatory information requirements and a

twenty-four hour waiting period required after

receipt of the information were reasonable measures

“to ensure an informed choice, one which might

26 Id. at 877; id. at 878 (“[Mjeasures designed to advance this

interest will not be invalidated as long as their purpose is to

persuade the woman to choose childbirth over abortion.”).

27 Id. at 882-83 (upholding mandatory information and twenty

four hour waiting period requirements, noting that “[i]Jf the

information the State requires to be made available to the

woman is truthful and not misleading, the requirement may be

permissible.”).

cause the woman to choose childbirth over abortion,”

the Court upheld these portions of the law.”* In

addition, the Court struck down a spousal notice

requirement because persuasion under these

conditions perpetuates the husband’s historic, but

now unconstitutional, forms of authority over his

wife, violating the woman’s dignity and equality.?9

Thus, in Casey, the Court reaffirmed the

Constitution’s protection for a woman’s decision on

whether to carry a pregnancy to term,” allowed

mandatory imposition of dissuasive methods to

influence a woman’s decision whether to carry a

pregnancy to term in ways that Roe had previously

barred, and prohibited the government from

protecting potential life through dissuasive means

that deny women’s dignity by, for example,

prohibiting the use of false or misleading information

or the perpetuation of male authority over women’s

decisionmaking.

Second, though less attention has been paid to

the limitations on the means by which a state may

permissibly further its interest in women’s health, at

least until the recent wave of health-justified

abortion regulations, these limitations are also vital

to maintaining Casey’s balance. The joint opinion

makes clear that some health-justified regulations

28 Casey, 505 U.S. at 882-83; id. at 885 (upholding mandatory

24 hour delay after receipt of information, and noting that

although this presented a closer question, “[t]he idea that

important decisions will be more informed and deliberate if

they follow some period of reflection does not strike us as

unreasonable.”).

29 Id. at 898.

30 Roe, 410 U.S. at 153.

are permissible throughout pregnancy, while others

are not, and invites judges to distinguish between

health-justified restrictions enacted “as with other

medical procedures”! and those that are

“unnecessary * or pretextual, i.e., have “no purpose

other than to make abortions more cifficult.”*

Indeed, in Casey the Court accepts the

recordkeeping and reporting requirements at issue

primarily because they are consistent with common

medical practices.* The Court distinguished the

health interest from the state’s interest in protecting

potential life by dissuading women from ending a

pregnancy: “/ajlthough [the requirements] do not

relate to the State’s interest in informing the woman’s

choice, they do relate to health."* The Court then

emphasized that “[t}he collection of information with

respect to actual patients is a vital element of

medical research.” Thus, the Court finds that it

cannot be said that the “requirement serves no

purpose other than to make abortions more

difficult.”%* Actual service of the interest in health,

which is presumed where the regulation is consistent

with general regulation of medicine, is enough to

establish a proper purpose of the statute. In other

words, regulations that are similar to those applied

to procedures of comparable risk, are not suspect.

Previous Court decisions also treated potential

life-justified regulations that placed additional

31 505 U.S. at 878.

32 Jd.

33 Jd. at 900-01.

% Id.

35 Id.

% Id.

requirements on abortion to insure a woman's

decision was “fully informed” differently from health-

justified abortion regulations.*? For example in a

portion of Planned Parenthood v. Danforth, 428 U.S.

52 (1976), which Casey cites approvingly, the Court

upheld a written consent requirement even though

written consent did not appear to be universally

required for all surgeries.** It was targeted at what

the Court sees as different about abortion, that it

terminates the gestation process, preventing

potential life from developing into a person, potential

life that many people strongly and sincerely believe

has the equivalent moral value of a person. In light

of the strong opinions on the issue, the Court has

held that the State has a legitimate interest in

ensuring the woman’s decision is made with “full

knowledge of its nature and consequences”:

The decision to abort, indeed, is an

important, and often a stressful one,

37 Both Roe and Casey clearly distinguish between the state's

interest in protecting women's health and in protecting unborn

life. In Roe, the Court authorized the state to regulate abortion

in the interests of protecting women’s health and protecting

unborn life at different stages of pregnancy. Roe, 410 U.S. at

163-64. While eliminating the trimester framework and

authorizing government regulation promoting each of these

interests throughout pregnancy, Casey continues to treat the

two state interests as analytically distinct. Casey, 505 U.S. at

878-79.

38 The Court noted that with minor exceptions, no other statute

required written consents to surgery, and was unconcerned

with contentions that obtaining written consent was a general!

practice. It was enough to the Court that the consent was

targeted to the special circumstance of insuring women were

fully informed of what they were doing. Danforth, 428 U.S. at

67.

and it is desirable and imperative that

it be made with full knowledge of its

nature and consequences. The woman is

the one primarily concerned, and her

awareness of the decision and its

significance may be assured,

constitutionally, by the State to the

extent of requiring her prior written

consent. 39

This deference on the issue of obtaining proper

informed consent was not mirrored in the Court’s

extensive review of the evidence presented to support

the State’s ban on a particular method of abortions,

saline abortions. At that time, before more modern

second trimester methods developed, the Court

struck down the ban after finding:

particularly in the light of the present

unavailability as demonstrated by the

record of the prostaglandin technique, the

outright legislative proscription of saline

fails as a reasonable regulation for the

protection of maternal health. It comes

into focus, instead, as an unreasonable or

arbitrary regulation designed to inhibit,

and having the effect of inhibiting, the

vast majority of abortions after the first 12

38 Danforth, 428 U.S. at 67; see also id. (“We could not say that

a requirement imposed by the State that a prior written

consent for any surgery would be unconstitutional. As a

consequence, we see no constitutional defect in requiring it only

for some types of surgery as, for example, an intracardiac

procedure, or where the surgical risk is elevated above a

specified mortality level, or, for that matter, for abortions.”).

weeks. "40

B. Independent Judicial Review of

Health-Justified Restrictions Protects

the Decisional Right Casey

Recognizes.

The logic of Casey/Carhart cautions against

conflating the interest in potential life and the

interest in women’s health. The deference that the

Court extends to the state’s interest in protecting

potential life, accepting a persuasive regulation as

long as it informs choice and does not violate dignity,

see supra, does not logically extend to the state’s

interest in regulating abortion to protect women’s

health.

The difficulty currently facing courts

reviewing the permissibility of a health-justified

abortion regulation is that the state can always

claim that it intends to promote women’s health to

justify a given restriction even where the claim is

contradicted by science, and many who are motivated

by strong good-faith moral opposition will support

them. Indeed, the ease of hiding motive is great in

contentious fields like abortion where one can always

find an expert willing to testify to scientifically

refuted facts, like that abortion causes breast

cancer,‘! that abortion causes suicidality,*? or that a

40 Td. at 78-79.

‘1 Compare Fact Sheet: Abortion, Miscarriage, and Breast

Cancer Risk, NATL CANCER INST. (last updated Jan. 12, 2010),

http://www.cancer.gov/cancertopics/ factsheet/Risk/abortion-

miscarriage (last visited Feb. 4, 2014) (reporting that expert

panel of National Cancer Institute (NCI) “concluded that

having an abortion or miscarriage does not increase a woman's

fetus at twenty weeks feels pain.*® If Casey's

rejection of rational basis scrutiny** is to mean

anything, it must require more than bald speculation

by the state that a regulation serves an interest in

maternal health. To ensure that Casey’s standard is

met, that the law in fact serves a velid health

interest of sufficient importance to warrant any

subsequent risk of developing breast cancer”), with Steven

Ertelt, Abortion has Caused 300K Breast Cancer Deaths Since

Roe, LIFENEWS (Jan. 17, 2011, 4:44 PM), http://www.lifenews.

com/2011/01/17/abortion-has-caused-300k-breast-cancer-deaths-

since-roe/ (last visited Feb. 4, 2014).

42 Compare AM. PSYCHOLOGICAL ASS’N, REPORT OF THE APA

TASK FORCE ON MENTAL HEALTH AND ABORTION 6 (2008),

http://www.apa.org/pi/women/programs/abortion/mental-

health.pdf (noting that evidence indicates that the relative risk

of mental health problems due to an abortion is similar to the

risk associated with an unplanned pregnancy; risk increases in

certain limited circumstances) and Gonzales v. Carhart, 550

U.S. 124, 183 n.7 (2007) (Ginsburg, J., dissenting), with Steven

Ertelt, Abortions Cause Severe Depression for Women, New

Study Shows, LIFENEWS (Jan. 2, 2006, 9:00 AM),

http://www.lifenews.com/2006/01/02/nat-1941/ (last visited Feb.

4, 2014) (reporting that a New Zealand study found women who

had abortions to be more likely to become severely depressed).

43, Compare Susan J. Lee, et al., Fetal Pain: A Systematic

Multidisciplinary Review of Evidence, 294 J. AM. MED. ASS’N

947, 947-54 (2005) (“[e]vidence regarding the capacity for fetal

pain is limited but indicates that fetal perception of pain is

unlikely before the third trimester” and “probably does not exist

before twenty-nine or thirty weeks”), with Teresa Stanton

Collett, Previability Abortion and the Pain of the Unborn, 71

WASH. & LEE L. REV. 1211 (2014).

44 See Casey, 505 U.S. at 874 (1992) (adopting the undue burden

standard despite Chief Justice Rehnquist's argument in

dissent); id. at 966 (Rehnquist, C.J., concurring in the judgment

in part and dissenting in part) (arguing in dissent that “the

Constitution does not subject state abortion regulations to

heightened scrutiny’).

burden it creates, courts must look behind these

claims and conduct independent judicial inquiry into

whether health-justified restrictions on abortion in

fact serve health-related ends and do not instead

protect potential life by unconstitutional means,

without attempting to reason with women about

their decision.

Singling out abortion for onerous regulation

not applied to other medical procedures of similar

risk is suspect in the Casey framework, both because

it is regulation that is inconsistent with ordinary

medical practice, unlike the health regulations that

have been upheld before and that Casey authorizes,

and because casting a regulation as health-justified

could, without confirmation that it is health-justified,

allow a state to do an end-run around the limitations

on potential life-justified restrictions.

C. Independent Judicial Review of Health-

Justified Restrictions Informs the Undue

Burden Inquiry.

As noted above, the Court held that even if an

abortion regulation furthers a valid state interest in

potential life or health, it is still impermissible if it

has the purpose or effect of imposing an “undue

burden” on the woman’s decision.*® The Court allows

regulation that actually promotes health, even if the

45 Jd. at 877 (noting “a law designed to further the State's

interest in fetal life which imposes an undue burden on the

woman's decision before fetal viability” is unconstitutional); id.

at 878 (“Regulations designed to foster the health of a woman

seeking an abortion are valid if they do not constitute an undue

burden.”).

health regulation had the incidental effect of

increasing abortion’s cost “by a slight amount,”

reserving the question of the conditions under which

increased costs become a substantial obstacle,*6

when the burden becomes undue.

Courts outside the Fifth Circuit, including the

Seventh and Ninth Circuits, recognize that the

existence and extent of the relationship between a

health-justified regulation and the interest in

women’s health informs the undue burden inquiry in

two ways. First, unequal application of health

restrictions, singling out abortion or a weak factual

basis for the health interest asserted, may supply

objective evidence of a purpose to impose a

substantial obstacle, in other words a purpose to

serve the interest in potential life with invalid

means, by hindering women seeking abortions.*’

Inconsistent conduct, singling out abortion, or weak

factual support for the restriction can supply

objective evidence of unconstitutional purpose. As

Judge Posner noted:

Opponents of abortion reveal their true

objectives when they procure legislation

limited to a medical procedure—

abortion—that rarely produces a

medical emergency. A number of other

46 Id. at 900—01.

47 See e.g., Planned Parenthood of Wis. Inc. v. Schimel, 806 F.3d

908 (7th Cir. 2015) at *13 (‘A number of other medical

procedures are far more dangerous to the patient than abortion,

yet their providers are not required to obtain admitting

privileges anywhere”); id. at 6 (citing case of colonoscopies in

particular where rate of complications resulting in

hospitalization is four times that of 1** trimester abortion).

medical procedures are far more

dangerous to the patient than abortion,

yet their providers are not required to

obtain admitting privileges anywhere,

let alone within 30 miles of where the

procedure is performed. 4

The district court judge reviewing Wisconsin's

admitting-privileges law, despite “being highly

reticent to presume both for personal and pubiic

policy reasons to discern the ‘collective intent’ of

another branch of government, even in the face of an

almost completely one-sided record,” held that the

“Act’s purpose was to prevent women from accessing

abortion,” and found the case to be an “extreme”

one.*? The court rested this judgment on classic

indicia of pretext: a) the legislative record was

“devoid of any medical rationale”;5° b) there was a

“tenuous link, if any” between the health

justifications and the evidence presented at trial;5! c)

the law targeted abortion providers without similarly

regulating procedures of comparable or greater

risk,52 and d) the law gave plaintiffs no time to

48 Schimel, 806 F.3d. at 921 (“Wisconsin appears to be

indifferent to complications of any other outpatient procedures,

even when they are far more likely to produce complications

than abortions are.”).

49 Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F.Supp.3d

949, 995 (W.D. Wis. 2015), affd sub nom Planned Parenthood of

Wis. V. Schimel, 806 F.3d 308 (7th Cir. 2015).

5© Td. (finding legislative record “devoid of any medical rationale

for the bill,” opposition by all Wisconsin medical organizations,

and that “any assertion that the impact on health overall would

be positive was dubious from the beginning’).

51 Jd. at 980.

52 Jd. (noting law “inexplicably singles out abortion when

evidence shows abortion “is at least as safe as, and often much

attempt to comply with the rules, showing an intent

to cripple the clinics.

Similarly, the district court in this case

criticized the state for attempting to supplement

health-protective justifications with fetal-protective

justifications, reasoning that under Casey it was

unconstitutional for the state to protect unborn life

by creating “obstacles to previability abortion” rather

than by counseling against the decision to seek an

abortion. The ambulatory surgical center

requirement, the court found, “was intended to close

existing licensed abortion clinics.”

Second, the strength of the evidentiary

showing that the regulation actually serves an

interest in women’s health is relevant to determining

whether any burden on abortion created by the

regulation was “undue.” As Judge Posner wrote for

the Seventh Circuit:

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

safer than, other outpatient procedures” not similarly

regulated).

53 Jd. at 995 (noting plaintiffs given only two days to comply

with the requirement as showing intent to cripple clinics).

54 Whole Woman's Health v. Lakey, 46 F. Supp.3d at 685.

slight, to be “undue” in the sense of

disproportionate or gratuitous.°®

Similarly, in examining health-justified regulations

mandating the use of outdated protocols for

medication abortion in Planned Parenthood of

Arizona v. Humble,®® the Ninth Circuit relied on

Casey’s “unnecessary health regulations language” in

applying a weighted balancing test, reasoning that

“the more substantial the burden, the stronger the

state’s justification for the law must be to satisfy the

undue burden test; conversely, the stronger the

state’s justification, the greater the burden may be

before it becomes ‘undue.”5’ The court noted

“Arizona has introduced no evidence that the law

55 Planned Parenthood of Wis. v. Van Hollen, 738 F.3d 786, 798

(7th Cir. 2013) (citations omitted) (citing Casey and Mazurek v.

Armstrong, 520 U.S. 969 (1997)). See also id. (finding in the

case of the admitting privileges requirement before it that the

medical evidence was “feeble,” while “the burden [was] great.”);

id. at 789 (requirement would shut down two of state’s four

abortion clinics).

56 753 F.3d 905 (9th Cir. 2014).

57 Jd. at 912 (observing “in the context of a law purporting to

promote maternal health, a law that is poorly drafted or which

is a pretext for anti-abortion regulation can both place obstacles

in the way of women seeking abortions and fail to serve the

purported interest very closely, or at all”) (internal quotations

omitted). See also Strange I, 9 F. Supp.3d at 1296 (in reviewing

an admitting privileges requirement, holding “it 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.”) (citing Van Hollen); id. at 1296—

97 (‘the court. . determines whether the obstacle is more

significant than is warranted by the justifications.”) (citing Van

Hollen); Planned Parenthood of the Heartland, Inc. v. Iowa Bd.

of Med., 865 N.W.2d 252, 264 (lowa 2015).

advances in any way its interest in women’s

health.”5®° In this case, where there is similarly

“tangential,” “weak,” or “speculative” evidence that

either restriction actually serves women’s health,®®

and overwhelming evidence that the only impact of

the regulations is to close clinics unnecessarily, the

burden is “undue.”

A weighted balancing test of this kind

faithfully implements Casey’s directions to judges to

distinguish between necessary and unnecessary

health regulations. Undue means unwarranted,

disproportionate. Undue is a relative judgment. The

question of what adverse effects are “undue” depends

on the strength of the state’s demonstration of a

health justification for the restriction on abortion—

on whether and to what extent a restriction is

necessary to protect women’s health.

58 Humble, 753 F.3d at 916. The court found “Here, the

‘medical grounds thus far presented’ are not merely ‘feeble.’

They are non-existent.” Id. at 917.

59 E.g., Lakey, 46 F. Supp.3d at 684 (ASC requirements “have

such a tangential relationship to patients safety as to be nearly

arbitrary”); id. at 685 (“[ajt most, the court finds the

credentialing rationale weak and speculative”).

60 See Casey, 505 U.S. at 878 (“As with any medical procedure,

the State may enact regulations to further the health or safety

of a woman seeking an abortion. Unnecessary 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.”). The Ninth Circuit similarly

justifies the weighted balancing test it employs to enforce Casey

as following from the Court’s instructions to bar “undue”

burdens and “unnecessary” health regulations. Planned

Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 912—13 (9th

Cir. 2014).

D. Carhart Does Not Support the Fifth

Circuit’s Rational Speculation Review.

To justify its use of hyper-deferential rational

basis review,®! the Fifth Circuit invokes Gonzales v.

Carhart, the Supreme Court’s 2007 decision that

upheld the federa] Partial Birth Abortion Ban Act.

But the Fifth Circuit’s hyper-deferential rational

basis review is inconsistent with the Court’s decision

in Carhart, and eliminates the crucial distinction

between the state’s interests in protecting potential

life and its interest in women’s health, thereby

permitting Texas to violate the limitations Casey

imposes on the means by which the state may protect

unborn life.

In the Supreme Court’s opinion in Gonzales v.

Carhart,® issued fifteen years after Casey, the Court

accepted the continuing authority of Casey's undue

61 The Fifth Circuit’s claims about rational basis are not

entirely clear. See Greenhouse and Siegel, Clinic Closings, at

Part II.C.1. (discussing Judge Jones’ opinion in Planned

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott

(Abbott IJ), 748 F.3d 583 (5th Cir. 2014), Judge Elrod’s opinion

in Whole Woman's Health v. Lakey, 769 F.3d 285, 304—05 (5th

Cir. 2014) (overturning District Court injunction against Texas

ambulatory-surgical-center requirement), vacated in part, 135

S. Ct. 399 (2014), and the per curiam opinion in Whole Woman's

Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015), mandate

stayed pending judgment by 135 S. Ct. 2923, and cert. granted,

2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274), which goes

out of its way to reaffirm Abbott II's rational basis reasoning.

Whichever account the Circuit embraces, its rational-basis

claims flout both Casey and Carhart).

62 550 U.S. 124 (2007).

burden framework® and the protection it provides

for a woman’s choice in obtaining previability

abortions. In addition, the Court declined the

government’s call to defer categorically to claims

supporting the legislation made in Congressional

Findings of Fact. Instead, in upholding the Partial

Birth Abortion Ban Act, the Court observed, “The

Court retains an independent constitutional duty to

review factual findings where constitutional rights

are at stake. .. . Uncritical deference to Congress’

The Carhart Court probed and, in two instances,

rejected congressional findings invoked by the

government as reasons for enacting the Partial Birth

63 See id. at 146 (observing that Casey’s undue burden standard

“struck a balance” between protecting “the woman's exercise of

the right to choose” and the ability of the state to “express

profound respect for the life of the unborn” (quoting Casey, 505

U.S. at 877)); see also id. (“Casey, in short, struck a balance.

The balance was central to its holding. We now apply its

standard to the case at bar”).

64 Jd. at 153—54 (construing the statute to avoid constitutional

questions and protect ordinary second-trimester abortions). See

Smith, Priscilla J., Js the Glass Half-Full?: Gonzales v. Carhart

and the Future of Abortion Jurisprudence, 2 HARV. L. & POL’Y

REV. (Online), (2008), available at

http://ssrn.com/abstract=1357506 (noting that decision

upholding statute preserved viability of Casey’s framework

while rejecting plaintiffs’ claim that there was a significant

medical distinction between banned procedures and allowable

procedures).

6 550 U.S. at 165-66 (2007) (“In cases brought to enforce

constitutional rights, the judicial power of the United States

necessarily extends to the independent determination of all

questions, both of fact and law, necessary to the performance of

that supreme function.”) (quoting Crowell v. Benson, 285 U.S.

22, 60 (1932)); see also Planned Parenthood Ariz., Inc. v.

Humble, 753 F.3d 905, 913 (9th Cir. 2014) (discussing Carhart).

Abortion Ban Act.® Probing Congress’s reasons

behind enacting the challenged statute is not

minimal rational basis review of the kind that the

Fifth Circuit mandates.*®

Moreover, Carhart did not concern a health-

justified abortion regulation. Instead, that case

concerned a potential life-justified law that the Court

held furthered the interest in protecting the

“integrity and ethics of the medical profession.”®

The law as construed by the Court concerned a

rarely employed method of performing abortions late

in the second-trimester of pregnancy. The Court

held that due to the availability of alternative safe

% Carhart, 550 U.S. at 165-66 (drawing on evidence presented

in the district courts to reject the claim that no medical schools

provided training in the abortion method the statute banned,

and the claim that “the prohibited procedure is never medically

necessary.”). Moreover, despite the legislative finding that

“partial-birth abortion remains a disfavored procedure that is

not only unnecessary to preserve the health of the mother, but

in fact poses serious risks to the long-term health of women and

in some circumstances, their lives,” Partial] Birth Abortion Ban

Act of 2003, Pub. L. 108-105, at § 2(2) (Nov. 5, 2003), the Court

did not consider that the statute might be health-justified.

8? Planned Parenthood of Greater Tex. Surgical Health Servs. v.

Abbott (Abbott IJ), 748 F.3d 583, 594 (5th Cir. 2014) (citations

omitted) ((“[a] law ‘based on rational speculation unsupported

by evidence or empirical! data’ satisfies rational basis review.”).

8 550 U.S. at 157. By banning a procedure that had a

“disturbing similarity to the killing of a new born infant,” and

which “implicate[d] additional ethical and moral concerns that

justiffied] a special prohibition,” the Court held that the law

furthered the government's “legitimate interest in regulating

the medical profession in order to promote respect for life,

including life of the unborn.” Jd. at 158 (law “draw({s} a bright

line that clearly distinguishes abortion and infanticide.”)

(internal citations omitted).

abortion procedures, the law did not restrict any

woman’s access to abortion before viability.°® Both

references to “rational basis” and regulation being

within “legislative competence” in Carhart” are

carefully limited to the specific context at issue

there, a law involving the substitution of one

procedure for another where only “marginal safety”

considerations separated the two.’! Carhart’s

statements about a potential life-justified regulation

simply do not apply to the health-justified

regulations here that would shut down three

quarters of the clinics in the state of Texas.

Nor does the language in Carhart discussing

the “wide discretion” that state and federal

legislatures have to pass legislation in areas where

there is medical and _ scientific uncertainty,””

support the Fifth Circuit’s call for judicial deference

in this case.72 The condition of medical uncertainty

in Carhart is unrelated to the question of whether

the law promoted women’s health. It related to the

® Carhart, 550 U.S. at 154-56.

7 Id. at 158; cf. Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott (Abbott IJ), 748 F.3d 583, 590 (5th Cir.

2014) (characterizing Carhart as “holding that the State may

ban certain abortion procedures and substitute others provided

that ‘it has a rational basis to act, and it does not impose an

undue burden” (quoting Carhart, 550 U.S. at 158)).

7! See Carhart, 550 U.S. at 158, 166.

72 Id. at 163.

73 Whole Woman's Health v. Cole, 790 F.3d 563, 587 (5th Cir.

2015) (chastising the trial court for “substituting its own

judgment for that of the legislature” and asserting “medical

uncertainty underlying a statute is for resolution by

legislatures, not the courts”), mandate stayed pending judgment

by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (US.

Nov. 13, 2015) (No. 15-274).

question of whether health was endangered enough

by the law in certain circumstance to require an

exception to the ban where the woman’s health was

at risk. Moreover, the fact of medical uncertainty

was itself established through extensive and detailed

judicial review, through the fact finding of the

District Courts. By contrast, the Fifth Circuit finds

uncertainty by ignoring the fact-finding of the

District Court. If appellate courts can justify

deference to the legislature by invoking medical

uncertainty that is untethered to facts found and

credibility determinations made by the trial court,”®

they can easily erode protections for constitutional

rights. Whatever deference Carhart might be read to

warrant on the issue of promotion of the interest in

potential life, it cannot be the extravagant deference

to the legislature that the Fifth Circuit practices

here.’6

™ See Cole, 790 F.3d at 587 (explaining why Abbott I/

“disavowed the inquiry employed by the district court” to

evaluate admitting privileges requirement); see id. at 584-86

(same with reference to ASC requirement).

76 The District Court found that the testimony of the state's key

expert witnesses lacked “the appearance of objectivity and

reliability” because a non-physician third party exerted

“considerable editorial control” over the contents. Lakey, 46

F. Supp.3d at 680 n.3. In finding “medical uncertainty,” the

Fifth Circuit rejected the findings of the District Court and

endorsed the state's evidence without ever mentioning adverse

credibility findings made by Judge Yeakel. See Cole, 790 F.3d at

585 (5th Cir. 2015).

76 Nor does Mazurek v. Armstrong, 520 U.S. 968 (1997), support

the Fifth Circuit’s position. In a brief per curiam opinion, that

case upheld a Montana law providing that only a doctor could

perform an abortion. The Court noted that physician-only

requirements of various kinds had been sustained in its prior

cases, including both Roe and Casey. Id. at 973-74

E. Courts Often Conduct Independent

Review of Fit to Preserve Constitutional

Limits.

Courts often examine the evidence to

determine whether a statute actually serves a valid

interest in order to preserve limitations of a

constitutional rule. For example, courts examine the

means/ends fit in the context of takings under

eminent domain powers. The government may not

take property “under the mere pretext of a public

purpose, when its actual purpose was to bestow a

private benefit.” 7’ The disposition of these cases,

therefore, “turns on the question whether the City’s

development plan serves a ‘public purpose.””® Even

in applying “meaningful” rational basis review under

the Public Use Clause, one Justice emphasized that a

detailed review of legislative motivation is required

to ascertain whether an illegitimate purpose is

(emphasizing that “fojur cases reflect the fact that the

Constitution gives the States broad latitude to decide that

particular functions may be performed only by licensed

professionals, even if an objective assessment might suggest

that those same tasks could be performed by others” (emphasis

omitted) (quoting Casey, 505 U.S. at 885)). As the regulation at

issue in Mazurek would not force any woman to travel to a

different facility, the Court judged its effects minimal. Jd. The

Court declined to find Montana’s physician-only requirement

unconstitutional in purpose in light of: the Supreme Court's

several cases sanctioning physician-only requirements, the

requirement’s minimal effects on abortion access, and the fact

that similar rules existed in forty other states. Jd. at 973.

7 Kelo v. City of New London, 545 U.S. 469, 477-78 (2005).

78 Jd. at 480.

animating state takings using eminent domain

power. ’9

Similarly, in preemption cases, courts

frequently conduct detailed evaluations of legislative

purpose by combining evaluation of whether

legislation serves its intended purpose with inquiries

into subjective legislative intent. For example, in

Pacific Gas and Electric Co. v. State Energy

Resources Conservation and Development

Commission,™ “the Court carefully analyzed the

congressional enactments relating to the nuclear

industry in order to decide whether a California law

that conditioned the construction of a nuclear power

plant on a state agency's approval of the plant’s

nuclear-waste storage and disposal facilities fell

within a pre-empted field.”*! The Court conducts a

similar analysis under Fifth Amendment exactions

doctrine, a doctrine that seeks to balance individual

property rights against the government’s legitimate

important interest in mitigation of the impact of a

proposed development on the public. Koontz v. St.

Johns River Water Mgmt., 13 S. Ct. 2586, 2595

(2013). See also Dolan v. City of Tigard, 512 U.S.

79 See id. at 491-92 (Kennedy, J., concurring) (noting that the

trial court reviewed evidence from six different sources before

concluding that benefitting a private company was not “the

primary motivation or effect of this development plan” (internal

quotation marks omitted)); see also id. at 497 (“[a]n external,

judicial check on how the public use requirement is interpreted,

however limited, is necessary if this constraint on government

power is to retain any meaning.”).

81 English v. Gen. Elec. Co., 496 U.S. 72, 80 (1990) (discussing

Pacific Gas). See also Entergy Nuclear Vermont Yankee, LLC v.

Shumlin, 733 F.3d 393 (2d Cir. 2013).

374, 391-93 (1994) (conducting searching inquiry into

state’s asserted interests and finding state did not

show why public rather than private greenway was

required in the interest of flood contro)).

Il. If the Plaintiff Shows that a Health-

Justified Abortion Regulation Targets

Abortion Only, the Burden Should Shift

to the Government to Prove that the

Regulation Actually Promotes’ the

Interest in Women’s Health.

Generally, the plaintiff bears the burden of

proof, but there are many circumstances where, once

the plaintiff successfully makes a certain showing,

the burden properly shifts to the defendant.® It is

generally understood that the “ultimate allocation

depends on general considerations of fairness,

convenience, and policy,”® all of which counsel a

burden shift in this case. For example, the burden of

proof “may be placed upon the party who contends

that the more unusual event has occurred,”™ “who

82 Ronald J. Allen, Presumptions, Inferences and Burden of

Proof in Federal Civil Actions--An Anatomy of Unnecessary

Ambiguity and a Proposal for Reform, 76 Nw. U. L. Rev. 892,

896 (1982) (noting that “[t]here are exceptions to the rule that

plaintiffs bear the] burden,” one of which is that “the burden of

production ... may be placed on one party if the means of

proving the issue are normally within his or her knowledge”);

Leo P. Martinez, Tax Collection and Populist Rhetoric: Shifting

the Burden of Proof in Tax Cases, 39 HASTINGS L.J. 239, 255

(1988) (noting lack of overriding principle in allocating burden

of proof).

83 See generally Marshall S. Sprung, Taking Sides: The Burden

of Proof Switch in Dolan v. City of Tigard, 71 N.Y.U. L. Rev.

1301 (1996); Martinez, 39 Hastings L.J. at 255.

8 McCormick on Evidence, § 337, at 950.

seeks to establish the improbable.”®®> The burden

shift recognizes what is probably true and shifts the

burden to the party who needs to disprove it to win

the case.™

Health-justified regulations that single out

abortion for restrictions not placed on procedures of

comparable risk are in a category of regulations that

Casey regards with skepticism and justifiably so.

The medical risks of abortion can and should be

regulated like the medical risks of all other

procedures. As Casey and Roe before it both

recognize, it is the state’s interest in potential life

that distinguishes abortion from other procedures,

and which justifies the extra latitude the state has to

regulate within the limitations of Casey.

As discussed above, the health interest is

different from the interest in potential life in that

abortion in its surgical aspects is similarly situated

to other medical procedures. Because targeted

health-justified regulations go beyond Casey's

allowance for health-justified abortion regulations

comparable to those adopted for “other procedures,”

they bear similarities to statutes that facially

discriminate on the basis of race and gender. They

85 See, e.g., Martinez, 39 Hastings L.J.at 252-53 (“The party

who seeks to establish the improbable generally is allocated the

burden of proof, all other things being equal.”).

8 | FEDERAL EVIDENCE § 3:3 (4th ed.). In this case, the

plaintiffs have provided more than sufficient evidence to carry

the burden of proving that the regulation does not in fact serve

the state’s valid interest in health. However, the Court should

clarify in its ruling that the ultimate burden on this issue in

fact lies with the Defendant. J.P McBaine, Burden of Proof:

Degrees of Belief, 32 CAL. L. REV. 242, 242 (1944).

raise an inference that they are designed not to

promote the valid state interest, but another

impermissible interest. In equal protection clause

challenges to policies that discriminate on their face

on the basis of race or gender, under both strict and

intermediate scrutiny, the burden of proof to justify

the law despite its facial discrimination falls on the

government. United States v. Virginia, 518 U.S. 515,

533 1996) (the burden of justification under both

intermediate and strict scrutiny “is demanding and

... rests entirely on the State.”).

A similar structure should apply here. If the

plaintiffs bear their burden of proving that an

abortion regulation justified on women’s health

grounds places more onerous restrictions on

abortion than on medical procedures of comparable

risk, they have established that it is unlikely that

the regulation actually promotes women’s health.

The burden should shift to the government to prove

the regulation actually promotes the state’s valid

interest in women’s health. If the plaintiffs cannot

prove that the health-justified abortion regulation

places more onerous restrictions on abortion than

comparable medical procedures, the burden remains

with them to prove that nonetheless, 1) the

restriction somehow still does not promote health; or

2) that the restriction has the effect of imposing a

burden that is undue, that is not sufficiently justified

by the benefit to health.

The same burden shift is not appropriate for

all statutes that target abortion of course because

the Supreme Court has noted that abortion can be

regulated differently from other medical procedures

in the interest of potential life.8’ The plaintiff

challenging a_ potential life-justified abortion

regulation carries the burden of proving that the

regulation violates Casey's terms: that the means

used is not designed to inform but rather to hinder

the abortion, that it is false or misleading, or that is

otherwise fails to respect the woman’s dignity and

equality, violating the balance between the woman’s

free choice and the state’s interest in promoting

life.® If the plaintiff cannot show that the regulation

fails to serve the interest in potential life, the

plaintiff could then only win by establishing that the

regulation nonetheless has the effect of imposing an

undue burden on the woman’s choice.®9

Burdens properly belong to the government

where there are concerns about government

overreach in an area, where the temptation of

appeasing powerful constituents is great, and where

without the burden the government could take rights

away by shouting one simple word, in this case,

“health!” This is the sort of situation that has led to

burden shifting in other circumstances.”

87 See supra at 1.A & L.B.

88 Supra at I.

89 See Casey, 505 U.S. at 878.

® A similar confluence of circumstances produced an actual

shift in the burden of proof in Takings cases. Sprung, 71 N.Y.U.

L. REV. at 1316 (internal citations omitted); id. (“Justice Scalia

infused takings law with a concern for government

overreaching that would naturally lead to a more intense

examination of the government’s actions.”). See also Dolan, 512

U.S. at 393 (holding that city had not met its burden of

establishing fit between burden and interest).

CONCLUSION

For the foregoing reasons, the Fifth Circuit's

deferential rational basis test advocated below must

be rejected and its decision overruled. Protecting

women’s dignity and maintaining the balance Casey

struck requires an independent inquiry into whether

and how effectively health-justified abortion

regulations serve women’s health.

Respectfully submitted,

PRISCILLA J. SMITH, ESQ.

(Counsel of Record)

YALE LAW SCHOOL

319 STERLING PLACE

BROOKLYN, NY 11238

Counsel for Amicus Curiae

January 4, 2016

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.