A Battle Royale in Texas: Fighting the New Pro-Abortion Strategy
Texas Alliance for Life
Bioethics in Law & Culture
Fall 2018 vol. 1 issue 4
Photo by Kevin Lamarque/Reuters
The case of Whole Woman’s Health Alliance v. Paxton is currently pending before The United States District Court for the Western District of Texas. The Plaintiffs, by using unproven legal theories, challenge virtually all of Texas’ pro-life statutes and rules. The sheer number of laws that are contested may seem to be the most significant issue about this case. But what is truly important about this case is how it attempts to create new precedent that could be used to attack the laws of any state that has multiple laws designed to protect unborn children and their mothers. In particular, the Plaintiffs argue that the undue burden standard should be applied not only to each law individually but also collectively to all the laws that a plaintiff chooses to challenge. Plaintiffs further argue that an adverse impact analysis should for the first time should be applied in context of abortion law. No doubt emboldened by Whole Woman’s Health v. Hellerstedt, which significantly changed the standards to be applied in abortion law cases, Plaintiffs go far beyond Hellerstedt to invite the courts to severely limit the ability of states to protect unborn children and their mothers.
The Defendants counter these arguments and ask that the issue of standing in the abortion context be revisited. The courts have long held that abortion providers have standing to represent the interest of their clients. The Defendants argue that changes in the requirements for standing make this proposition no longer supportable. This is well illustrated in the present case which seeks to overturn laws that are clearly designed to protect women seeking abortions. Paxton is a mammoth case not primarily because of the number of laws at issue, but mostly because of the significant legal issues raised.
The Laws Challenged
Paxton, which was filed on June 14, 2018, is currently in the pleading stage. It challenges over 60 individual laws and regulations, including an entire chapter of administrative regulation and the procedural rules of the Texas Supreme Court regarding judicial-bypass procedures for minors seeking abortion. These laws can be broken down into twenty categories:
1. Physician-only abortion
2. Facility licensing requirements
3. Ambulatory surgical center requirements for abortions after 18 weeks
4. Reporting requirements
5. Medication abortion dosage and administration restrictions
6. Medication abortion physician examination requirement
7. Medication abortion manufacturer’s label distribution requirement
8. Medication abortion follow-up visit requirement
9. Telemedicine ban
10. Informed consent information requirement
11. Informed consent state-printed materials requirement
12. Ultrasound requirement
13. 24-hour waiting requirement
14. Procedure requirements for informed consent
15. Parental notice equipment for minors
16. Parental consent requirement for minors
17. Identification requirement for verification of age
18. Judicial bypass procedures for minors
19. Criminal penalties for non-compliance
20. Funding limitations concerning State Medical Schools
This listing of laws challenged is perhaps more interesting for what it does not contain than for what it does contain. The only funding issue raised by the Plaintiffs is a provision of the General Appropriations Act that denies funding to state medical schools that give academic credit for the learning of how to perform abortions. This is not the only way Texas ensures its funds are not used to support abortion. Texas is a national leader in ensuring tax dollars do not fund abortions. Texas has chosen not to fund abortion both directly and indirectly. It may well be that Texas’ decision to cut off funding to the abortion industry is a major reason why the abortion industry is not doing well in Texas. Since both the United States Supreme Court and the Texas Supreme Court have determined that there is no constitutional right to abortion funding, the Plaintiffs have good reason not to attack funding laws generally.
Direct Abortion Funding
Perhaps there is also another reason for the Plaintiff’s choice. Perhaps the Plaintiffs wish to obscure how important the cutoff of taxpayer funds is to the Texas abortion industry. As soon as the Hyde Amendment was first passed, Texas restricted direct funding for abortion. This was not because Texas immediately passed its own Hyde Amendment prohibiting state funds from being used to fund abortion. Texas law had long prohibited expending Texas funds for medical purposes unless federal funds were available to in part defer the expense. As soon as the Hyde Amendment was passed, Texas stopped directly funding abortion because there no longer were federal funds for abortion. But the Hyde Amendment was not passed until 1976. This was three years after Roe v. Wade was decided. The establishment of Texas’ first abortion facilities was directly subsidized by both state and federal money.
Indirect Abortion Funding
But direct funding for abortion is not the only way abortion facilities received federal and state funding. Many abortion facilities also provided family planning services. Family planning services in Texas receive considerable federal and state funds. Abortion facilities realized early on that family planning income could help support their abortion business. The business model was a unified abortion and family planning business often operating at the same location. Instead of two buildings, two parking lots, two waiting rooms, two sets of administrative staff for billing, insurance, and scheduling, and two of many other expenses, one of each resulted in considerable savings. Further, the unified business strategy provided synergy. If family planning failed, a woman had a pre-established relationship with an abortion provider. Having both the family planning and abortion business operate under the same name meant that whenever one business was advertised the other business would benefit also. The result of this business structure was that both state and federal money ended up indirectly funding the abortion industry.
Federal Family Planning Funding
The first challenge to this use of indirect funding came in 1988 when the Secretary of Health and Human Services issued rules to ensure that federal funds were not used to support abortion. The rules required physical separation between family planning operations and abortion operations, no abortion counseling, and no abortion referrals. These rules were upheld by the United States Supreme Court in the case of Rust v. Sullivan. The Court recognized that in return for receiving federal funds an entity cannot be required to give up its constitutional rights. That would be an unconstitutional condition. But the Court also found that when the government uses its money to create a program, the government can create the program it wishes to create. Hence, just because the government funds after school programs it does not have to fund the Ku Klux Klan After School Program to be held in the same building where the Klan conducts its meetings and rituals. The government can require real separation between an organizations programs. While Health and Human Services rules were upheld by the Supreme Court, they were repealed by the Clinton Administration.
State Family Planning Funding
The State of Texas has successfully eliminated almost all indirect funding for abortion by adopting laws based on the federal rules upheld in Rust and laws which prioritize funding to organizations that provide more services to women than the abortion industry is willing to offer.
In 2003, Texas adopted a rider to the General Appropriations Act modeled on Rust:
8. Prohibition on Abortions.
a. It is the intent of the Legislature that no funds shall be used to pay the direct or indirect costs (including overhead, rent, phones and utilities) of abortion procedures provided by contractors of the department.
b. It is also the intent of the legislature that no funds appropriated under Strategy D.1.2., Family Planning, shall be distributed to individuals or entities that perform elective abortion procedures or that contract with or provide funds to individuals or entities for the performance of elective abortion procedures.
It restricted family planning funds that Texas distributed under Title X of the Public Health Act and Title XX of the Social Security Act. While this law was immediately challenged in court, the law was substantially upheld in Planned Parenthood v. Sanchez. The court ruled since the rider could be interpreted as allowing Planned Parenthood to create affiliates that provided abortion counseling and referrals that the law was constitutional. Planned Parenthood and the Texas Department of Health reached a settlement regarding affiliates, which allowed Planned Parenthood to create affiliates but did not require much separation from affiliates.
In 2011, the Texas Legislature the Texas Legislature passed a law that limits funding if affiliates perform or promote abortion:
The department shall ensure that money spent for purposes of the demonstration project for women's health care services under former Section 32.0248 or a similar successor program is not used to perform or promote elective abortions, or to contract with entities that perform or promote elective abortions or affiliate with entities that perform or promote elective abortions.
The implementing rules specified what was required to ensure funds were not used to promote abortion. In particular;
The regulations define “promote” as to [a]dvocate or popularize by, for example, advertising or publicity.” 1 Tex. Admin. Code sec. 354.1362(6). They define “affiliate” as:
(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:
(i) Common ownership, management or control;
(ii) A franchise; or
(iii) The granting or extension of a license or other agreement that authorizes the affiliate to use the other entity’s brand name, trademark, service mark, or other registered identification mark.
These rules were immediately challenged and were enjoined by a federal district court. The Plaintiff’s main argument was that the rules created an unconstitutional condition. The Fifth Circuit in Planned Parenthood v. Suehs, rejected this argument finding that because “Planned Parenthood” is phrase commonly associated with the pro-abortion point of view that funding such an organization undercuts Texas’ choice to disfavor abortion. The court cited Rosenberger v. Rector and Visitors of Univ. of Virginia for the proposition, “When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.”
Just by using the term “Planned Parenthood” in its family planning operation, Planned Parenthood conveyed a pro-abortion message that the State of Texas rejects. Planned Parenthood was not willing to use another name in its family planning operations and to comply with the rule’s requirements of real separation between its family planning and abortion operations. As a result, it no longer receives the disputed funding. While this significantly reduced the indirect funding of the abortion industry, it did not eliminate all such funding as it did not address all funding sources.
Texas has also taken steps to ensure that its own funds do not directly or indirectly fund abortions. Texas has prohibited grants concerning school-based health centers from going to abortion providers. Texas has prohibited hospital districts from funding abortion.
Texas looked at how health care was being provided overall and decided it was best for women and families that health care be provided by organizations which offered a wide variety of services. Comprehensive care has great advantages. In one trip, a woman can often take care of not only her medical needs but also the needs of her children. Texas, therefore, decided to prioritize family planning funding. The first priority is public entities. The second priority is nonpublic entities that provide comprehensive primary and preventative care services in addition to family planning services. The last priority is nonpublic entities that do not provide comprehensive primary and preventative care services. Since the abortion providers, like Planned Parenthood, do not provide comprehensive primary and preventative care services they fall in the last category for funding. If they were to apply, it is highly unlikely that there would be any family planning funds available to them because they are in the lowest funding priority.
These laws have accomplished what they set out to do. Family planning services are being provided and women and children have easy access to truly comprehensive primary and preventative care services. At the same time, Texas is not indirectly funding organizations that do something it finds abhorrent. Nothing is stopping Texas abortion providers from operating family planning facilities that are truly separate from their abortion operations. The Texas abortion facilities have simply not chosen to do so. This is further evidence that the reason abortion facilities operate family planning services is not because they care about family planning, but because they want to enhance their abortion business.
Why Have Abortion Facilities Not Reopened?
Plaintiffs argue that before the laws struck down in Hellerstedt were passed there were over forty abortion facilities in Texas. After the laws were passed, Texas abortion facilities declined to less than twenty. Plaintiffs contend that when Hellerstedt overturned these laws, that most abortion facilities did not reopen because “staff members had been let go; buildings and equipment were sold; doctors had moved on.” Plaintiffs argue that Texas' abortion laws are the reason why new abortion facilities are not opening. However, a more likely explanations for the failure of abortion facilities to reopen is that abortion facilities are no longer being subsidized in Texas; the abortion rate is declining across the nation; and alternatives to abortion are more available.
Now that both direct and indirect funding for abortion has been largely cutoff from Texas abortion providers, it is not at all surprising that abortion facilities have not sprung up to replace those shut after the enactment of the laws stuck down by Hellerstedt. This is not to say that no abortion facilities have been reestablished. Whole Woman’s Heath has reopened its Austin abortion facility. In fact, Plaintiffs pleadings only mention this one abortion facility opening. However, Planned Parenthood has opened four new abortion facilities. It also has received a $9 million-dollar donation to open two more new facilities. This points out an interesting fact. Planned Parenthood, the leading abortion provider in Texas, is not a party to this lawsuit. Perhaps what this lawsuit is really about is that Whole Woman’s Health cannot effectively compete against Planned Parenthood under the current Texas abortion regulations, but believes it could do better if abortion was unregulated in Texas.
Previously, abortion facilities in Texas were nourished by millions of tax dollars each year. Now abortion facilities have to compete for every dollar they earn. If there is not now sufficient demand to support abortion facilities in all the cities where they formerly existed perhaps the reason is that there was never sufficient demand and the only reason those facilities grew and survived was because of taxpayer funding. Perhaps the only significant obstacle to obtaining an abortion in Texas is the law of supply and demand.
This does even consider the fact that when the abortion industry developed in Texas there were few Pregnancy Help Centers. Now there is an abundance of Pregnancy Help Centers. These nonprofit organizations provide emotional and material support to women who have crisis pregnancies. While these organizations are mostly funded by donations, the State of Texas has recently doubled its funding to these organizations. Perhaps it is harder to sell an abortion when caring assistance is offered.
Plaintiffs note that in the United States the abortion rate has sharply declined since 2008. They claim the reason is improved access to contraception. Assuming without finding that Plaintiffs have correctly found the reason for the sharp decline, is not a nationwide decline in business another reason why more abortion facilities are not reopening in Texas? Is it really the time to invest in new facilities during a bear market? That there are not more abortion facilities in Texas is well explained by the removal of subsidies, increased competition by alternatives, and a general decline in business.
Plaintiffs offer the theory that the undue burden standard should be applied collectively to all abortion laws that a petitioner chooses to challenge and not just to each law. Before considering whether the undue burden standard should be expanded, it is first necessary to determine what is the undue burden standard. The undue burden standard first appeared in the plurality opinion in Planned Parenthood v Casey, but it has been modified in Hellerstedt. In Casey, the plurality determined that a regulation was facially invalid if “in a large fraction of the cases in which it is relevant, it will operate as a substantial obstacle.” Such a substantial obstacle is an undue burden. However, Casey does not say what a substantial obstacle is. In a recent 5th Circuit case, June Medical Services v Gee, the court notes that the majority in Hellerstedt adopted the Casey plurality standard and further explicated the standard:
WWH’s analysis is rooted in Casey, 505 U.S. 877, which defined an “undue burden” as “shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Court in WWH explained that Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
The Gee court found this to create a balancing test where both the burdens and benefits of the law must be considered. Evaluating the burdens and benefits of a regulation to determine whether a substantial obstacle is created is hardly a bright line test. Even with the additions of Hellerstedt and Gee, it is not clear how does one distinguish a substantial burden from unsubstantial burden? Perhaps looking at examples of what courts have found to be undue burdens and what was found not to be an undue burden would be helpful.
In Casey, the Court upheld the medical emergency definition, informed consent, 24-hour waiting period, parental consent, and reporting requirements. The Court did not uphold the spousal notification requirement. Arguments for and against each of the laws at issue creating an undue burden can be made. Why the Court found the five laws created no undue burden, but one law created an undue burden is hardly apparent from decision. But at least, in Casey the question was whether each law by itself created an undue burden and not the combined effect of all the laws the plaintiffs chose to contest.
Expanded Undue Burden
The undue burden standard as interpreted by Hellerstedt and Gee is significantly more difficult for a state regulation to pass than the usual standard for a facial challenge to a law. Normally, the standard is:
A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [a legislative] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.
United States v. Salerno, 481 U.S. 739, 745 (1987). The undue burden standard does not require a finding that there is no set of circumstances under which the act is valid in order to invalidate the law. It is a much stronger standard. But the Plaintiffs seek an even more generous standard for the abortion industry. The Plaintiffs believe that any combination of laws identified by a plaintiff should be invalidated if the laws in question collectively constitute an undue burden. There is simply no support in precedent for Plaintiff's’ argument to expand the undue burden standard. Further, why is there a need to expand an already overly generous standard?
Collective Undue Burden Unworkable
Plaintiffs would have a court strike down thirty pro-life laws if the court found that collectively some combination of thirty laws created an undue burden. How is it just to extinguish such laws drafted and passed by the people’s elected officials when none of the laws themselves place a burden that is anywhere near an undue burden? The collective undue burden standard is nothing more than excuse to declare unconstitutional laws that individually are in no serious way problematic.
Further, it is an invitation for piecemeal litigation. What if the court in Paxton were to apply the collective undue burden standard to the present case and determine that there was no undue burden, could not a plaintiff file a new lawsuit the next day and assert that all the laws in the present lawsuit plus three others create an undue burden. In order to rule on this new suit the court would have to consider the interrelationship between the laws previously considered and the three additional laws. A second long and complex case would be the result.
As the Defendants point out, this idea of a collective undue burden is not new.  The notion was argued by Justice Blackmun in his dissent in Akron II. The majority in Akron II did not consider the argument worthy of a response.
Plaintiffs make an equal protection claim that Texas' abortion regulations have a disparate impact on minorities and the poor. The disparate impact doctrine is that a facially neutral rule may be struck down if it disproportionately affects a group. In the leading case of Griggs v. Duke Power, 401 U.S. 424 (1971), the Court was faced with a case of resistance to civil rights laws. Duke Power had historically only hired blacks for its lowest paid jobs. With the passage of the Civil Rights Act of the 1964, this practice was clearly illegal. Duke Power's solution was to create job qualifications that few blacks could meet. On their face, the job qualifications were not race based. However, they had the effect of perpetuating racial discrimination. In Duke Power, the Court ruled even facially neutral qualifications that disproportionately impacted racial groups were suspect.
How ironic that the Plaintiffs try to use the disparate impact doctrine, that was first used to protect minorities from discrimination, to increase the number of minorities who are killed by abortion. This is particularly so because the abortion industry has targeted the poor and minorities. As Justice Ruth Bader Ginsburg has said:
Frankly I had thought that at the time Roe was decided, there was concern about population growth in populations that we did not want to have too many of. So that Roe was going to be set up for Medicaid funding for abortion.
It is not those opposed to abortion that are targeting the poor and minorities, but the abortion industry and its advocates. If laws regulating abortion have a greater impact on the poor and minorities, it is only because the abortion industry has targeted the poor and minorities.
Unfortunately for the Plaintiffs, while the disparate impact doctrine applies to certain civil rights statutes that concern housing and employment, it does not apply to the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause only prohibits intentional discrimination. It does not prohibit disparate or disproportionate impact. The disparate impact doctrine has no application in abortion litigation.
Going back to the case Singleton v. Wulff, 428 U.S. 106 (1976), the courts have generally allowed for a very relaxed standing requirement allowing abortion physicians to assert claims on behalf of their patients. Nonetheless, this policy has not been uniform. In Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 589 n.9 (5th Cir 2014), the court recognized that a doctor's economic incentives and a woman's interest may well diverge. This is a particularly good case to reconsider issue of standing because this is a case were the Plaintiffs are explicitly making economic arguments and are at same time attempting to strike down regulations that protect women seeking abortions. In addition, of the seven Plaintiffs only one is a physician. The other six Plaintiffs are non-profit corporations. Only one of the six non-profit corporations operates an abortion facility. The other five assist women seeking abortion. These six have far less claim to standing than the one physician.
In the years since 1976, there appears to have been a tightening of standing requirements. For example, in the case of Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court held that a father did not have standing to assert an Establishment Clause claim on behalf of his minor daughter because he lacked custody of her and had different religious beliefs. The Court held that parallel interests were required for allow standing.
It is hard to see how the interest of the Plaintiffs in the present case could be parallel with the interests of women seeking abortions. For example, Plaintiffs wish to strike all of 25 Tex. Admin. Code chapter 139. As the Defendants point out, this chapter includes requirements for infection control, such as disinfection and sterilization of reusable medical devices and patient rights such as access to medical records, the opportunity to ask questions and be free from discrimination. When Plaintiffs are arguing that Texas’ abortion regulations are too costly to allow abortion facilities to reopen, there seems to be a clear conflict between abortion providers who believe the lowest possible price is necessary and women seeking abortions who believe their safety is important. It is time for the issue of standing in abortion cases to be revisited. It is far from clear that the abortion industry has the same interests as its clients.
The Paxton Plaintiffs have raised claims that could significantly change abortion litigation. They seek to apply the undue burden analysis collectively to all the statutes a plaintiff challenges. They are attempting to have a disparate impact analysis applied in the abortion context. If successful, these changes would make it much easier to strike down pro-life legislation. But neither of these changes is supported by precedent and there is no need to change the Supreme Court holdings that are currently overly generous to the abortion industry. A significant weakness in the Plaintiffs’ undue burden case is that failure of abortion facilities in Texas to reopen so as to match their pre-Hellerstedt numbers is better explained by economic factors such lack of subsidies, real competition, and a nationwide industry decline than by a claim that Texas’ abortion regulations are too costly. Because of the claims raised by the Plaintiffs, Paxton is the ideal case to contest the long-standing determination that abortion physicians have standing to challenge abortion laws on behalf of their clients. This has always been a dubious claim, but because the Plaintiffs seek to strike down so many laws that clearly protect women, the weakness of the holding is readily apparent. Paxton is a massive case that could have a huge impact not just on Texas but across the nation.
 See Thomas’ 'dissent in Whole Woman's Health v. Hellerstedt, 136 S.Ct 2292 (2016) arguing that the majority rejected the undue burden standard set out in Planned Parenthood v Casey, 505 U.S. 833 (1992) and has established a new standard akin to strict scrutiny.
 Singleton v. Wulff, 428 US 106, 118 (1976).
 Complaint 156, citing Section 6.25 of Article 9 of the General Appropriations Act.
 Harris v. McRae 488 U.S. 297 (1980)(Upholding Hyde Amendment limitations to abortion funding). Bell v Low Income Women of Texas, 95 S.W.3d 253 (Tex. 2002)(upholding Texas' decision not to fund abortion).
 Tex. Human Resources Code section 32.024(e).
 Roe v. Wade, 410 U.S. 113 (1973).
 Complaint 67
 See Rust v. Sullivan, 500 U.S. 173 (1991)
 42 U.S.C. sec. 300 et seq.
 42 U.S.C. sec. 1397 et seq.
 Planned Parenthood v. Sanchez, 403 F.3d 324 (5th Cir. 2005)
 Planned Parenthood v. Sanchez, 480 F.3d 734, 737 (5th Cir. 2007)
 This statute is now codified as Texas Health and Human Resources Code section 32.024(c-1).
 Planned Parenthood v. Suehs, 692 F.3d 343 (5th Cir. 2012), the amended rules may now be found at 1 Tex. Admin. Code sec. 382.17.
 515 U.S. 819, 833 (1995).
 Texas Education Code section 38.063 (e-1)
 Texas Health and Safety Code section 285.202.
 Texas Government Code section 531.0025.
 Complaint 57.
 Complaint 58.
 Complaint 60.
 According to Public Information Act requests obtained by Texas Alliance for Life Planned Parenthood had no licensed abortion facilities as of November 2, 2016 and as of September 20, 2018, Planned Parenthood has four licensed abortion facilities. This does that mean that in November 2016 Planned Parenthood was doing no abortions in Texas. Planned Parenthood was performing abortions at its ambulatory surgical centers, which have a different license than do abortion facilities. In Texas, abortion facilities are generally licensed under Texas Health and Safety Code chapter 245. However, an ambulatory surgical center licensed under Texas Health & Safety Code chapter 243 is not required to hold an abortion facility license. Texas Health & Safety Code section 245.004 (a)(3).
 Dallas Morning News, March 28, 2018.
 General Appropriations Act, Health & Human Services, Strategy D.1.2.
 Complaint 22.
 Complaint, 198
 Casey at 895
 June Medical Services v Gee, No. 17-30397 (5th Cir, Sept. 26, 2018).
 Casey at 880
 Casey at 881-85
 Casey at 885-87
 Casey at 889-900
 Casey at 900-01
 Casey at 887-98
 Gee at , specifically rejects the use of the Salerno standard for facially challenges in the abortion context.
Defendant’s Motion to Dismiss, p. 39.
 Akron II, 497 U.S. at 527.
 Complaint 148.
 Emily Bazelon, The Place of Women on the Court, The New York Times Magazine, July 7, 2009.
Village of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977), Washington v. Davis 426 U.S. 229, 238 (1976
 Village of Arlington Heights at 264-65, Pers. Adm'r Mass. v. Feeney, 442 U.S. 256, 272 (1979).
 Complaint 15.
 Compl1 6-14.
 542 U.S. 1, 15 & n.7 (2004)
 Id. at 15.
 Defendant’s Motion to Dismiss, p. 13.
 Complaint 59-61.