Recently, the U.S. Court of Appeals for the Fifth Circuit upheld a Louisiana law that, among other things, was designed to drive abortion providers out of the state by making it impossible to obtain malpractice insurance, while simultaneously exposing providers to strict liability for abortion-related malpractice claims. While the decision will only affect Louisiana providers, the reality is that anti-choice lawmakers were able to create a regulatory environment in the state that can squeeze out abortion services altogether, and the long-term effects of their efforts, especially as they relate to the current clinic closure crisis in Texas, don’t look good.
In Hope Medical Group for Women v. Lorraine LeBlanc, the Fifth Circuit considered whether the state legislature, in singling out abortion providers from the benefits of the state’s malpractice fund and reform efforts, created an undue burden on the right to choose, since the effect of the law is designed to make it prohibitively risky and expensive to offer abortion services. But, according to the justices, just because a state law makes accessing abortion services “prohibitively difficult” doesn’t mean that law creates an undue burden on the right to choose. To reach such a conclusion, and support the convoluted legal analysis that produced it, the justices relied on Harris v. McRae, a 1980 Supreme Court decision that upheld the constitutionality of the Hyde Amendment, the federal law that prohibits Medicaid funding for abortions in most cases and the foundation for making affordable abortion access nearly impossible for low-income women post-Roe.
As it turns out, the Supreme Court has a long history of being unsympathetic to the plight of the poor, in addition to failing to connect systemic poverty with public policy. In McRae, a group of plaintiffs challenged the constitutionality of the Hyde Amendment, arguing it was an unconstitutional restriction on the right to choose for poor women. The Supreme Court, however, disagreed and explained how making abortion prohibitively expensive is not an unconstitutional barrier to choose. According to McRae:
[T]he Hyde Amendment … places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.
In other words, the government cutting off funds for abortion services to those on government-subsidized health plans isn’t a government-created obstacle to a poor woman accessing abortion care, it’s simply a government-created “opportunity” to make a different decision.
But more tellingly for purposes of the Texas clinic closure crisis is the analysis that follows in McRae, for it is this “bootstraps” line of legal reasoning that informs the Fifth Circuit’s reasoning today. Medicaid bans may make it impossible for low-income women to access abortion care, the justices in McRae reasoned, but the fault lies not in the Medicaid ban, but in the fact that the woman is poor.
But regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher: although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigence.
The first clause in that quote deserves a moment of pause. It’s no small matter that in the context of determining whether the right to choose abortion can be a meaningful right for low-income individuals, the Supreme Court shows it is open to considering the question of whether the state can ever mandate a woman carry to term a pregnancy that will kill her. From a jurisprudential standpoint, that means the Rehnquist Court has already called into question whether saving one’s life from terminal forced birth is an “essential” component of a woman’s Fourteenth Amendment right, a point the Roberts Court could return to in the near future.
Turning to the recent Louisiana case, the Fifth Circuit began its analysis of whether the Louisiana statute unduly burdens the right to choose by first accepting that the law will make providers either stop offering abortion services or leave the state altogether. That is, the court had no problem assuming the law will have the exact impact anticipated by the Louisiana legislature, and that is to drive out providers. But rather than exploring the impact of an exodus of clinics and doctors, the court instead notes that states are “free” to promote policies that advance a state interest in potential life so long as those laws do not place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Now, it stands to reason that a law designed to drive abortion services out of the state would create a “substantial obstacle” in a patient’s path to seeking an abortion. Not so, says the Fifth Circuit. That’s because, thanks to McRae, the law insists there’s a difference between a state failing to provide benefits and restricting choice, and, reasoned the Fifth Circuit, all lawmakers in Louisiana decided to do was to exempt providers from certain benefits. “This exemption may make it difficult—perhaps prohibitively difficult—for those providers to obtain the relevant insurance,” the court wrote. But this is merely a “means of unequal subsidization of abortion and other medical services” and not an undue burden on choice. And while “government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those obstacles,” like Louisiana’s dearth of affordable insurance, that are “not of [the government's] own creation.”
The Fifth Circuit, however, didn’t completely skip over the fact that, in Louisiana’s case, the obstacle placed in the path of women exercising their freedom of choice was, of course, created by the state by making abortion a service that is excessively expensive to insure, while also stripping providers of state-provided benefits to other medical professionals. But it may as well have. “Of course,” the court wrote, “in some sense, Louisiana’s healthcare market is a function of the laws operative in that state. But that is also true, in some sense, of the ‘[i]ndigency’ described in Harris v. McRae as an obstacle for which the government is not responsible. Though some have criticized the Maher-McRae line of cases as formalistic, the cases are the long-standing law of the Supreme Court and we must apply them.”
The court’s conclusion is the equivalent of a constitutional shoulder-shrug. Sure, the government created a law that helped fuel a provider and access crisis, but it’s under no obligation to fix it, and a failure to do so somehow does not unconstitutionally burden abortion rights.
Does the Fifth Circuit have any immediate bearing on the health-care crisis unfolding in Texas? No, thankfully. But it does give us a pretty clear vision of how the Fifth Circuit will likely view a claim that Texas’ HB 2 and the flood of clinic closures in its wake unconstitutionally restricts a right to choose by functionally eliminating access to abortion care for thousands of Texans. The poorest areas of the state are, naturally, most affected by these closures, with some women facing the “choice” of driving hundreds of miles to the nearest provider or risk crossing the border for illegal abortion-inducing medications.
If the Fifth Circuit was unwilling to find unconstitutional Louisiana’s law that functions as a constitutional ban on abortion, it is not likely to find any sympathy for the plight of the poor needing abortion care in Texas. After all, by the court’s own reasoning, the problem to low-income women accessing abortion care isn’t that the government has made it too expensive, it is that they are poor. With similar fights underway in different states, like North Dakota and Alabama, and the fight over telemedicine abortion just heating up, this is likely a question the Roberts Court will be asked to answer as well.