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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A51

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

ae U.o.
ore oe pe § 253
OFFICE OF THE CLE“%
IN THE
Supreme Court of the United States
eo

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.

lv

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.

1

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

2

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.

3

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

5

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

6

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.

7

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.”).

8

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.

10

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.

11

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.”).

12

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

13

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’).

14

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.”).

15

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).

16

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

17

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.

18

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).

19

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).

20

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).

21

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’
factual findings in these cases is inappropriate.”®©
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).

22

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).

23

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).

24

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

25

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.

26

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.”).

8© 461 U.S. 190 (1983).

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).

27

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.

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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).

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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

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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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A51. Public record. Not legal advice.