Nel's New Day

June 23, 2015

‘Roe v. Wade’ May Survive

The Supreme Court may have already made a decision about the closure of women’s clinics across the state of Texas in a little-watched case, Los Angeles v. Patel, about hotels. That case concerns a city ordinance requiring hotel operators to keep records, such as names and addresses of guests, and make these records “available to any officer of the Los Angeles Police Department for inspection.” Refusal could give hotel operators up to six months in jail and a $1,000 fine. A 5-4 decision, including the four more liberal justices joined by Kenney, determined that the ordinance violates the Fourth Amendment’s safeguards against unreasonable searches and seizures because it does not afford these hotel operators “an opportunity to obtain precompliance review before a neutral decisionmaker.”

Justice Sonia Sotomayor wrote that the plaintiffs may bring a “facial” challenge to the Los Angeles ordinance. These challenges seek to totally invalidate a law whereas “as-applied” challenges seek a decision about whether a law is applied only to a specific plaintiff or plaintiffs. The court’s precedents were not clear before Patel about the appropriateness of facial challenges, and one case indicated that “the challenger must establish that no set of circumstances exists under which the Act would be valid.”

Sotomayor explained that in the court’s assessment of a facial challenge, it “considered only applications of the statute in which it actually authorizes or prohibits conduct.” In the major abortion case Planned Parenthood v. Casey, the court struck down the part of Pennsylvania’s law requiring a woman to notify her husband before getting an abortion. Supporters of the law argued that facial relief was wrong because most women tell their husbands if they are getting an abortion. That means the law does not impose an undue burden on these women. The court disagreed because constitutional law should be considered by its impact on people who it affects. “The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”

This statement can also be used as a rebuttal to the decision about closing women’s clinics in Texas by three George W. Bush-appointed judges on the 5th Circuit Court of Appeals. The panel ruled that facial challenges can almost never be brought against anti-abortion laws. Although 900,000 women of reproductive age would have to travel more than 150 miles for an abortion, the lower court reasoned that these 900,000 women are only 17 percent of the 5.4 million women of reproductive age in the state. To these three men, 17 percent isn’t enough to allow a facial challenge because it doesn’t provide a sufficient burden to most of the women in Texas.

Justice Sotomayor’s opinion in Patel repudiates this analysis by the 5th Circuit. If “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant,” as the Court held in Patel, then the Fifth Circuit erred by focusing on how certain aspects of Texas’s law would influence women that they do not impact.

Although the Patel case did not have a unanimous vote, the position on facial challenge apparently did. Even Justice Antonin Scalia’s dissent in Patel agrees that a litigant’s “self-description” of his lawsuit as a “facial” challenge provides no “independent reason to reject it, unless we [are] to delegate to litigants our duty to say what the law is” (invoking Marbury v. Madison without citing it). In a separate dissent Justice Samuel Alito, joined by Justice Clarence Thomas, notes that he sees “serious arguments” that the fact-specific Fourth Amendment is “inconsistent with facial challenges” and so he proceeds only by “assuming” that “such facial challenges ever make sense conceptually.”

Roe v. Wade is still at risk across the country, but Patel is a good beginning. Perhaps a majority of the Supreme Court won’t be as restrictive as the 5th Circuit Court of Appeals. Patel’s decision may also be the foundation for overturning the decision from the 5th Circuit to highly restrict the reproductive rights of women in Texas and other states.

Last Friday, the 5th Circuit refused, by two to one, to delay its June 9 ruling closing many of the women’s clinics although it modified it by giving a clinic in McAllen more time to adapt to new restrictions. Ten of the remaining 19 clinics in Texas are still required to close on July with some of them never reopening. The case has been appealed to the Supreme Court through Scalia who handles emergency legal filings from the 5th Circuit.  He can act on his own or consult with the other justices. The Supreme Court is currently considering whether to review a Mississippi case to replace a state abortion law that would close the last clinic in the state.

In Texas, the issues are whether clinics performing abortions must have facilities equal to those in surgical centers and whether doctors performing abortions must have patient-admitting privileges at a nearby hospital. These limitations will reduce Texas abortion facilities by 75 percent in just two years, causing “a severe shortage of safe and legal abortion services.” Clinics and doctors argue that the two provisions are not medically necessary at women’s clinics. The state had 41 abortion clinics before the new law began taking effect. A temporary Supreme Court order putting limits on the state law allowed some clinics to reopen last October. Ten of the remaining 19 clinics were closed by the 5th Circuit decision.

Abortions are a minor part of women’s clinics, and Gov. Greg Abbott is creating more health risks for low-income women. He just signed a budget proposal ousting Planned Parenthood from Texas’ Breast and Cervical Cancer Services program, which provides cancer screenings for uninsured, low-income women. Any clinics affiliated with abortion providers will no longer receive funding for cancer screening services.


As more and more states close women’s clinics, the United States is rapidly becoming a Third World country for women’s reproductive rights. Drones might help solve the problem. In Poland, Women on Waves, the Dutch group advising women in countries where abortion is illegal on how to safely terminate their own pregnancies, is dropping medication-abortion packets for women’s groups to distribute to those who want abortions. In Europe, only Poland, Ireland, and Malta fail to have legalized abortions.

Telemedicine abortion is an easy way to safely end abortions early in a pregnancy as shown in Iowa, but 16 states have outlawed the practice. In states that have not yet outlawed the method, Utah has a mandatory face-to-face meeting with a doctor, followed by a 72-hour wait, but lacks any prohibition on doing a medication abortion without a doctor present.

Six states have just one legal abortion clinic each. Louisiana is following Texas in a fight to close down most of the women’s clinics. Four states have three-day waiting periods. Texas and Louisiana are in the courts fighting to close most of their clinics down. In the United States, women can technically legally end their own pregnancy legally as long as they do it well before viability. If this sounds medically dangerous, think about how much worse illegal abortions can be because safe and clean women’s clinics are gradually closed throughout the United States.


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