Author: Colin P. Pool*
The Fifth Circuit’s March 2014 decision in Planned Parenthood v. Abbott[1] garnered attention[2] due to the controversial legislation that it upheld as constitutional: Texas H.B. 2, which in part required abortion providers to have admitting privileges at a hospital located within thirty miles of their clinic.[3] Critics have argued that this requirement is a legislative charade intended to force abortion providers to close,[4] continuing a broader debate regarding the constitutionality of abortion regulations.[5] This article reevaluates Abbott’s use of rational basis review in scrutinizing H.B. 2 by comparing it to the Fifth Circuit’s March 2013 decision in St. Joseph Abbey v. Castille,[6] where the court used the heightened “rational basis with bite” test to find a Louisiana funeral industry regulation unconstitutional.[7] In light of this comparison, Abbott’s rational basis analysis demonstrates a judicial double standard, and likely manifests the court’s political agenda.[8]
Rational Basis Review vs. “Rational Basis with Bite”
The Supreme Court has held that all state legislation that neither infringes on a fundamental right nor discriminates against a suspect class need only be “rationally related to a legitimate state interest” to withstand constitutional scrutiny.[9] Therefore, it may be based on “rational speculation unsupported by evidence and empirical data” and will be invalidated only if there is no “reasonably conceivable state of facts that could provide a rational basis for the classification.”[10] The inquiry ends once a “plausible reason[]” for legislation has been identified, and the plaintiff bears the burden of negating “every conceivable basis which might support it.”[11]
However, the Court has invalidated several state laws while ostensibly applying rational basis review.[12] In these cases, it often identifies rational basis review as the proper test but then proceeds to apply something greater—“rational basis with bite”[13]—which entails: a search for the law’s actual purpose; a careful evaluation of whether that purpose is permissible; a review of the record for factual evidence of a bona fide nexus between the classification and its purpose; and a shift of the evidentiary burden from the plaintiff to the State.[14] The common trigger for “rational basis with bite” is evidence of “animus” against a targeted group.[15] While the Court’s jurisprudence disfavors applying meaningful scrutiny to state economic and social welfare regulations,[16] circuit courts have used “rational basis with bite” case law to do just that. In Merrifield v. Lockyer,[17] the Ninth Circuit invalidated a California pest control regulation, noting that “economic animus”—i.e., imposing barriers to competition in a lawful market—was likely the law’s true purpose.[18] The Sixth Circuit’s invalidation of a Tennessee casket sales regulation in Craigmiles v. Giles[19] came to a similar conclusion, though the court did not use the term “animus.”[20]
Abbott’s Rational Basis Analysis
Abbott was concerned in part with whether H.B. 2’s admitting privileges requirement was irrational.[21] The Fifth Circuit began by discussing the plaintiffs’ extensive evidence that the requirement was unnecessary.[22] It then discussed the State’s competing evidence—based largely on the testimony of one expert—that the law was rationally related to a legitimate state interest.[23] The panel noted that the district court had permanently enjoined the admitting privileges requirement in part because it found “no evidence” of a “rational relationship . . . between an abortion provider’s admitting privileges . . . and improved patient care at emergency facilities handling patient complications.”[24]
The panel held, however, that “[t]he district court[] . . . took the wrong approach to the rational basis test.”[25] It explained that the “proper”[26] rational basis test “seeks only to determine whether any conceivable rationale exists for an enactment. . . . [T]he state is not required to prove that the objective of the law would be fulfilled.”[27] It held that Texas’s “articulation of rational legislative objectives . . . easily supplied a connection between the admitting-privileges rule and the desirable protection of abortion patients’ health,”[28] and “conclude[d] that the State acted within its prerogative to regulate the medical profession.”[29]
The court then criticized the Seventh Circuit’s 2013 Planned Parenthood v. Van Hollen decision for “suggesting that [Wisconsin] needed to offer factual or statistical evidence” to support its admitting privileges requirement and “ignor[ing] case law from its own circuit . . . that there is never a role for evidentiary proceedings under rational basis review.”[30] It then dismissed the law’s unprecedented nature—i.e., that doctors who perform outpatient services other than abortions are not required to have local admitting privileges—by noting that “[t]here is no requirement . . . that a state legislature address all surgical procedures if it chooses to address one.”[31]
Its criticism of a sister circuit aside, Abbott’s rational basis analysis is superficially unremarkable. It correctly articulates the “traditional” rational basis test, and is consistent with other circuit courts’ applications of it.[32] It is not surprising, then, that this portion of the Abbott opinion has received little to no attention in scholarly analysis.
St. Joseph Abbey’s “Rational Basis with Bite”
However, comparing Abbott to the Fifth Circuit’s prior rational basis analysis in St. Joseph Abbey v. Castille[33] casts Abbott in a different light. St. Joseph Abbey was concerned with the constitutionality of a Louisiana law that gave licensed funeral directors an exclusive right to intrastate casket sales.[34] The court outlined, with considerable detail and sympathy, the plaintiff’s “burdens.”[35] A Benedictine Abbey wanted to sell caskets at a considerable discount from the prices charged by funeral homes.[36] Louisiana’s casket regulations prevented the business from operating, even though the State did not otherwise regulate casket use or interstate casket sales.[37] The Abbey failed to spur curative legislative reform,[38] so it filed suit, alleging “that the licensure requirements . . . bear no rational relationship to any valid governmental interest.”[39] The State “responded that the challenged rules . . . [were] rationally related” to consumer protection and public safety. [40] The District Court ruled in the Abbey’s favor, but the State appealed.[41]
The Fifth Circuit began by stating that:
although rational basis review places no affirmative evidentiary burden on the government, plaintiffs may nonetheless negate a seemingly plausible basis for the law by adducing evidence of irrationality. . . . Our analysis does not proceed with abstraction for hypothesized ends and means do not include post hoc hypothesized facts. Thus, we will examine the State[]’s rationale informed by the setting and history of the challenged rule.[42]
The court then explained, at considerable length, how the State had failed to establish that its intrastate casket sales restrictions were rationally related to its proffered objectives.[43] In doing so, it extensively cited to the record to demonstrate that the State’s justifications were “betrayed by the undisputed facts.”[44] It then affirmed the district court,[45] concluding: “The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule . . . nor does it require courts to accept nonsensical explanations for regulation.”[46] Consistent with Merrifield and Craigmiles, commentators have identified St. Joseph Abbey as an application of “rational basis with bite.” [47] Like those opinions, St. Joseph Abbey also noted its suspicion that the true purpose of the law was to prevent competition in the intrastate casket market.[48]
Reevaluating Abbott: The Fifth Circuit’s Double Standard
The Fifth Circuit’s double standard[49]—evidenced through its inconsistent rational basis jurisprudence—is an improper discrimination against a class of plaintiffs. In other words, the court is playing favorites when determining which claims are entitled to meaningful judicial review. There is no justification for the Fifth Circuit to extend one plaintiff this courtesy and not the other when both were engaged in a lawful trade; both were being regulated out of business by state legislation; and both introduced evidence that the challenged statutes did not actually further their stated objectives and in fact may have had improper ulterior motives—specifically, forcing lawful participants out of the market.
St. Joseph Abbey took great care to demonstrate that Louisiana’s casket regulation was irrational. It extensively demonstrated that the State’s proffered objectives were “betrayed” by the evidentiary record.[50] It implied that the true purpose of Louisiana’s restriction on casket sales was to prevent competition in the intrastate casket market.[51] It further highlighted that Louisiana had chosen not to otherwise regulate caskets,[52] and found that this choice led “to [the] conclu[sion] that no rational relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments.”[53]
But evidence of irrationality was also present in Abbott. The court noted the evidence “that women face an ‘extremely low’ risk of experiencing some type of complication after an abortion,” and that “for those abortion patients who need hospital care . . . the appropriate course of action would be to refer the woman to a nearby emergency room because . . . ER physicians are qualified to treat most post-abortion complications . . . .”[54] It discussed that H.B. 2’s requirements would force the closure of numerous abortion providers,[55] and that the “specter of Dr. Kermit Gosnell[56] informed the [State’s] testimony . . . .”[57] It then pointed out that the law does not require other outpatient surgical facilities to have admitting privileges, but determined this was irrelevant because “[t]here is no requirement . . . that a state legislature address all surgical procedures if it chooses to address one.”[58]
Thus, the Fifth Circuit, confronted with evidence of irrationality and improper motivation by both plaintiffs, found this evidence vital in St. Joseph Abbey, but ruled it to be of no consequence in Abbott. The court did so despite acknowledging that H.B. 2’s regulations were potentially unnecessary; that they would force lawful businesses to close; that the law did not apply to other outpatient surgical providers; and that inflammatory evidence—the Gosnell case—motivated Texas’s actions.[59] Even more perplexing, Abbott criticized the Seventh Circuit’s Van Hollen opinion for “ignor[ing] case law from its own circuit,” while simultaneously ignoring case law from its own circuit by failing to mention St. Joseph Abbey and its meaningful treatment of the plaintiff’s claims. This differential treatment implies that state legislatures are entitled to greater deference when regulating abortion, but Supreme Court abortion precedent—which requires a two-pronged inquiry[60]—indicates otherwise.
Reevaluating Abbott in this light demonstrates a results-oriented jurisprudence. The Fifth Circuit, already known as the most politically conservative federal appeals court,[61] continues to live up to this characterization.[62] As challenges to H.B. 2 continue,[63] the Fifth Circuit should perform its own reevaluation of Abbott and begin subjecting H.B. 2 to meaningful scrutiny. Denying this courtesy to H.B. 2’s challengers not only harms women by irrationally limiting their access to healthcare, but validates a skewed view of the federal Constitution’s protections. This is an unacceptable status quo that the court should immediately rectify.
* J.D., University of Cincinnati College of Law. Mr. Pool is an attorney licensed in Ohio.
[1] 748 F.3d 583 (5th Cir. 2014).
[2] E.g., Ryan Goellner, The Burden of Applying Casey’s “Undue Burden” Standard, U. Cin. L. Rev. Blog (June 7, 2014), http://uclawreview.org/2014/06/07/the-burden-of-applying-caseys-undue-burden-standard; Josiah Peterson, Health Regulations and Roe: The Fifth Circuit Got it Right in Planned Parenthood v. Abbott, Public Discourse (Apr. 23, 2014), http://www.thepublicdiscourse.com/2014/04/13065.
[3] Abbott, 748 F.3d at 587.
[4] E.g., Court Should Strike Down State’s Admitting Privileges Law, Milwaukee Journal Sentinel (July 8, 2014), http://www.jsonline.com/news/opinion/court-should-strike-down-states-admitting-privileges-law-b99306912z1-266326001.html.
[5] See, e.g., id.; Sandhya Somashekhar, Admitting-Privileges Laws Have Created High Hurdle for Abortion Providers to Clear, Wash. Post (Aug. 10, 2014), http://www.washingtonpost.com/national/2014/08/10/62554324-1d88-11e4-82f9-2cd6fa8da5c4_story.html.
[6] 712 F. 3d 215 (5th Cir. 2013).
[7] Id. at 226–27.
[8] See infra, nn. 61, 62.
[9] Pennel v. City of San Jose, 485 U.S. 1, 14 (1988). “[I]n the post-1937 period we have had a dichotomy between the judicial review of classifications employed in economic and general social welfare regulation and review of classifications that either touch upon fundamental constitutional values or use a criterion for classification which itself violates a fundamental constitutional value. Classifications of the first type will be upheld so long as they arguably relate to a legitimate function of government. Classifications of the second type, however, will be subjected to independent judicial review, which means that the Court will not give great deference to legislative choices in such cases.” Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3(a)(i) (5th ed. 2012). This “tiered scrutiny” model of judicial review applies to all challenges to a state law’s constitutionality under the federal Fourteenth Amendment, whether the challenge is rooted in the Equal Protection Clause or the Due Process Clause. See id.
[10] F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 315 (1993).
[11] Id. at 314, 315.
[12] Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357 (1999); Austin Raynor, Economic Liberty and the Second-Order Rational Basis Test, 99 Va. L. Rev. 1065, 1070 (2013).
[13] This phrase originates from Gerald Gunther, The Supreme Court, 1971Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 12 (1972).
[14] Farrell, supra note 12, 359, 373 (1999); See also Raynor, supra note 12, at 1072 (2013).
[15] See Raynor, supra note 12, at 1080.
[16] In Williamson v. Lee Optical of Oklahoma, Inc., the Court stated that “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” 348 U.S. 483, 488 (1955). See also City of New Orleans v. Dukes, 427 U.S. 297, 305 (1976). However, both Williamson and Dukes predate the Court’s 1985 City of Cleburne v. Cleburne Living Center decision, which is a foundational “rational basis with bite” opinion. 473 U.S. 432 (1985); see id. at 458 (Marshall, J., concurring) (noting that “the rational basis test invoked [in Cleburne] is most assuredly not the rational-basis test of Williamson . . . .”).
[17] 547 F.3d 978 (9th Cir. 2008).
[18] Id. at 989, 991. Merrifield has been identified as an example of “rational basis with bite.” Steven Menashi & Douglas H. Ginsubrg, Rational Basis with Economic Bite, 8 N.Y.U. J. L. & Liberty 1055, 1069–74 (2014).
[19] 312 F.3d 220 (6th Cir. 2002).
[20] Id. at 227–29 (6th Cir. 2002). Craigmiles has also been identified as an example of “rational basis with bite.” Menashi & Ginsburg, supra note 18, at 1069–71.
[21] Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 587 (5th Cir. 2014).
[22] Id. at 590–92.
[23] Id. at 592–93.
[24] Id. at 593.
[25] Id. at 593–94.
[26] Id. at 594.
[27] Id. at 594 (quotations and citations omitted).
[28] Id.
[29] Id. at 595.
[30] Id. (emphasis added).
[31] Id. (internal quotations and citations omitted).
[32] See e.g., Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 940–41 (2014); Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004).
[33] 712 F. 3d 215 (5th Cir. 2013).
[34] Id. at 217. As a curious aside, the law at issue in St. Joseph Abbey was functionally identical to the one at issue in Craigmiles, discussed supra, nn. 19–20 and accompanying text.
[35] St. Joseph Abbey, 712 F. 3d at 218.
[36] Id. at 217.
[37] Id. at 217–18.
[38] Id. at 219.
[39] Id. at 220.
[40] Id. at 220, 223.
[41] Id.
[42] Id. at 223 (emphasis added).
[43] Id. at 223–27.
[44] Id. at 223.
[45] Id. at 227.
[46] Id. at 226–27.
[47] See Menashi & Ginsburg, supra note 18, at 1069–77.
[48] St. Joseph Abbey, 712 F. 3d at 219. The Supreme Court declined to review Merrifield, Craigmiles, or St. Joseph Abbey, indicating at least tacit approval of their outcomes, despite their inconsistency with Williamson’s holding.
[49] “A set of principles permitting greater opportunity or greater lenience for one class of people than for another . . . .” Black’s Law Dictionary (9th ed. 2009).
[50] St. Joseph Abbey, 712 F. 3d at 223–27.
[51] Id. at 219.
[52] Id. at 217–18.
[53] Id. at 226.
[54] Planned Parenthood v. Abbott, 748 F.3d 583, 590–91 (5th Cir. 2014). Federal law requires emergency rooms to accept all patients that require emergency treatment. See 42 U.S.C. § 1395dd (2012).
[55] Abbot, 748 F.3d at 591–92.
[56] Gosnell “operated a[n abortion] clinic in West Philadelphia catering to poor women that prosecutors called a ‘house of horrors.’” He was “convicted [in May 2013] of three counts of first-degree murder in a case that became a sharp rallying cry for anti-abortion activists.” Pro-choice activists believe the intense media attention that abortion opponents directed at Gosnell’s case was motivated to “accelerat[e] restrictions at the state level to effectively end legal abortion.” Jon Hurdle & Trip Gabriel, Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures, N.Y. Times, May 14, 2013, at A12.
[57] Abbot, 748 F.3d at 595.
[58] Id. at 596.
[59] Id. at 595.
[60] See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[61] See, e.g., Mark Curriden, Meet the Chief Judge of the Nation’s Most Divisive, Controversial and Conservative Appeals Court, ABA Journal (Feb. 1, 2014, 10:40 AM), http://www.abajournal.com/magazine/article/meet_the_chief_judge_of_the_nations_most_divisive_controversial.
[62] Note that the 2012 Republican Platform repeatedly calls for reducing economic regulations, while simultaneously “salut[ing] the many States that have passed laws for . . . health-protective [abortion] clinic regulations.” 2012 Republican Platform i, 1, 5, 11, 14 (2012), available at https://cdn.gop.com/docs/2012GOPPlatform.pdf. See also Alliance for Justice, The Judges of the United States Court of Appeals for the Fifth Circuit 1 (Nov. 1, 2013), http://www.afj.org/wp-content/uploads/2013/11/Fifth-Circuit-Judges-Report-FINAL.pdf (stating that the Fifth Circuit’s “decisions often reflect a concerted effort by Republican administrations to impose a conservative policy agenda through the courts.”).
[63] The Fifth Circuit recently heard oral arguments in another case challenging H.B. 2, Whole Women’s Health v. Lakey, No. 14-50928. Veronica Zaragovia, Portions of Texas Abortion Law Under Scrutiny Again by Federal Judges, KUT.org (Jan. 8, 2015, 1:50 PM), http://kut.org/post/portions-texas-abortion-law-under-scrutiny-again-federal-judges. This case could provide the Fifth Circuit a perfect opportunity to meaningfully reevaluate H.B. 2.
