JURIST Guest Columnist Caitlin Borgmann of the City University of New York School of Law, discusses recent circuit court decisions addressing state abortion laws and predicts that one of the decisions may reach the US Supreme Court…

Federal Courts of Appeals have recently addressed two important abortion cases, either of which could end up before US Supreme Court. Last week, the US Court of Appeals for the Fifth Circuit heard oral arguments on the merits of a Texas law that requires abortion facilities to meet hospital-like building and construction standards. The US Court of Appeals for the Fourth Circuit issued a decision [PDF] in late December striking down a North Carolina pre-abortion ultrasound law that requires abortion providers to perform a sonogram before an abortion and to display and describe it to the woman. Each case is important for abortion rights in different ways, but a common theme the cases raise is the question of abortion exceptionalism: whether courts should treat abortion as an exceptional case when states purport to regulate it for health and safety reasons (in the Texas case) or when state restrictions encroach on the right against compelled speech (in the North Carolina case)?

The Texas law at issue in the Fifth Circuit case demands that abortion clinics meet the building and construction requirements of ambulatory surgical centers. It is one of a series of measures Texas and other states have enacted that target abortion providers and facilities with special regulations. These laws do not purport to promote the state’s interest in embryonic or fetal life (unlike a waiting period law, for example). At the same time they do not simply treat abortion like any other medical procedure. Rather they impose burdensome restrictions that do not apply to other medical procedures of comparable or even greater risk. It is clear that their true goal is to force clinics to shut down. In fact since Texas’s hospital admitting privileges requirement went into effect, about half of the state’s clinics have closed.

Under the 1992 Supreme Court decision Planned Parenthood v. Casey, a state can single out abortion for special regulation in order to promote its preference for childbirth. But Texas’s law does not purport to do that. The state claims it wants to make abortion safer, not harder to get. The question thus arises whether states should be allowed to target abortion for special, burdensome regulations in the name of health and safety and, if so, why? If there is anything medically exceptional about abortion it is that it is extraordinarily safe. A first-trimester abortion, for example, carries a less than 0.05 percent risk of major complications that might need hospital care. However vigorously Texas may assert that it aims to promote women’s health, it is clearly treating abortion differently than other medical procedures and not based on any evidence that stricter regulation is needed. The judges at last week’s oral argument directed some tough questions to Texas Solicitor General Jonathan Mitchell during oral arguments expressing skepticism about the state’s safety rationale. Such judicial skepticism of—not deference to—the states’ rationale for these laws is warranted.

Thus far however the Fifth Circuit has generally recognized states’ power to impose burdensome regulations on abortion in the name of women’s safety. Except in the case of Mississippi’s admitting privileges law, which would have shut down the state’s last remaining clinic, the Fifth Circuit has held that such abortion regulations do not impose an undue burden even when—as in Texas—they prompt a wave of clinic closures. In the case now pending before the Fifth Circuit, a different panel of judges previously ruled that the plaintiffs were unlikely to prevail in their undue burden challenge. Other courts, including the US Court of Appeals for the Seventh Circuit, have been more doubtful of states’ attempts to subject abortion to special regulations that do not apply to comparable procedures. These courts have seemed to recognize that the health justification is a subterfuge, hiding an illicit motive to hinder women’s access to abortion. This developing conflict in how courts of appeals are analyzing these laws is one the Supreme Court will likely feel compelled to resolve. If it does, the court should call upon states that purport to regulate abortion in order to protect women’s health to justify those regulations, given that the laws’ most glaring effect is to make abortion not safer but less accessible.

North Carolina’s pre-abortion ultrasound requirement, recently invalidated by the Fourth Circuit, raises a different issue about abortion exceptionalism. Plaintiff abortion providers challenged the law not under the undue burden standard but as a violation of the First Amendment right against compelled speech. The question here is whether such challenges to abortion restrictions should be treated differently than other compelled speech claims. This is a point of disagreement between the Fourth and Fifth Circuits, a difference that again increases the likelihood of Supreme Court review.

North Carolina’s law requires abortion providers to perform an ultrasound, display it, and describe the image in detail to women seeking abortions. Unlike the Texas regulation, North Carolina’s law was openly enacted to further the state’s interest in discouraging abortion. The Fourth Circuit panel found that the law unconstitutionally required “quintessential compelled speech” that is “ideological in intent and in kind.” The court applied intermediate scrutiny to the law because it considered it a “content-based regulation of a medical professional’s speech.” Importantly the court declined to treat the plaintiffs’ claim differently because the law at issue was an abortion regulation:

The fact that a regulation does not impose an undue burden on a woman . . . does not answer the question of whether it imposes an impermissible burden on the physician under the First Amendment.

In considering a Texas ultrasound mandate nearly identical to North Carolina’s, the Fifth Circuit took a very different approach and upheld the Texas law. The court effectively merged its analysis of abortion providers’ compelled speech claims with the undue burden standard, which addresses women’s access to abortion. This was true even though the plaintiffs did not challenge the ultrasound requirement as imposing an undue burden. Refusing to recognize the plaintiffs’ First Amendment claim as distinct, the court noted

[I]f [the law] would not violate the woman’s privacy right under the [Planned Parenthood v.] Casey plurality opinion, then Appellees would, by means of their First Amendment claim, essentially trump the balance Casey [which established the undue burden standard] struck between women’s rights and the states’ prerogatives.

The Fifth Circuit is not the first court to suggest that the undue burden standard occupies the field of constitutional claims whenever an abortion restriction is challenged. For example other lower courts have similarly interpreted the undue burden standard as displacing the analysis that would normally apply to bodily integrity or equal protection claims when those claims have been asserted against abortion restrictions. I have called this judicial move “undue burden preemption.” In contexts not involving abortion, the courts have traditionally recognized that challenges to state laws can implicate more than one constitutional provision and thereby call for different constitutional analyses. But in the abortion context courts applying undue burden preemption seem to view non-undue-burden claims with suspicion, as though plaintiffs are trying to gain an unfair advantage by avoiding the undue burden standard. If the Supreme Court takes up the pre-abortion ultrasound issue, it will face an important opportunity to affirm the Fourth Circuit’s position that there is no reason to treat compelled speech challenges to abortion restrictions any differently than similar claims in other contexts.

One or both of these cases are likely to end up before the Supreme Court. If so, the court should clarify that, even under current abortion precedent, abortion exceptionalism is inappropriate in either case.

Caitlin Borgmann is a Professor at the City University of New York School of Law. She is the editor of the Reproductive Rights Prof Blog. She was the State Strategies Coordinator at the Reproductive Freedom Project of the American Civil Liberties Union for six years.

Suggested citation: Caitlin Borgmann, Fourth and Fifth Circuits Confront Abortion Exceptionalism, JURIST – Academic Commentary, Jan. 15, 2015, http://jurist.org\/academic/2015/01/Caitlin-Borgmann-abortion-exceptionalism.php.