Rational Basis Review Is Not Empirical Basis Review: Fifth Circuit Criticizes the Seventh Circuit's Decision in Van Hollen

Late last year the Seventh Circuit issued its decision in Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-2726 (7th Cir. Dec. 20, 2013), a constitutional challenge to a new Wisconsin law (known as Act 37) that requires a doctor performing an abortion to have admitting privileges at a hospital no more than 30 miles from the abortion clinic. The decision upheld a preliminary injunction enjoining the enforcement of the law and generated a considerable amount of news and commentary.

The latest bit of “commentary” came from the U.S. Court of Appeals for the Fifth Circuit in the form of an opinion issued yesterday (written by Judge Edith H. Jones) in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, No. 13-51008 (5th Cir. Mar. 27, 2014), which upheld Texas’s analogue to Act 37. Only time will tell, but a circuit split could be in the offing.

The Seventh Circuit unanimously affirmed the preliminary injunction in Van Hollen because the statute, passed on a Friday, took effect on a Monday and gave the abortion doctors no time to acquire the hospital privileges that normally take at least two months to get. And, of course, there was no record before either the district court or the Seventh Circuit. But, in the course of affirming the preliminary injunction and sending the case back to Judge William E. Conley of the Western District of Wisconsin for trial on the merits, Judge Posner (joined by Judge Hamilton) made clear his view that the statute is unconstitutional, while concurring Judge Manion made clear his view that there is no valid constitutional objection to it. The writing, as they say, appears to be on the wall for Act 37. (When Van Hollen returns to the Seventh Circuit, the court’s Internal Operating Procedure 6(b) should place it before the same three-judge panel.)

Nevertheless, the Fifth Circuit was particularly critical of Judge Posner’s view, explaining that it was “unpersuaded by the concerns of the majority” and that “[t]he first-step in the analysis of an abortion regulation . . . is rational basis review, not empirical basis review.” Van Hollen had faulted Wisconsin for not introducing statistical evidence to prove that an admitting-privileges requirement will make abortions safer; but that, according to the Fifth Circuit, ran squarely afoul of the Seventh Circuit’s own case law, in which it previously held that there is “never a role for evidentiary proceedings” under rational basis review. (Slip Op. 19.) The Fifth Circuit found further fault with what Judge Posner believes is an equal-protection problem lurking in Van Hollen, noting that the plaintiffs had submitted no evidence to support the idea that other outpatient doctors were treated differently and that the state legislature, in any event, was not required to “address all surgical procedures if it chooses to address one.” (Id.)

These issues will continue to play out across the country.  According to footnote 4 in Judge Jones’s opinion, five state legislatures have adopted admitting-privileges laws, and district courts in each of those states have enjoined their operation. In Texas and Mississippi, the Fifth Circuit stayed the injunctions pending appeal (the Supreme Court declined to lift the Texas stay), and yesterday’s decision unanimously reversed the district court and upheld the constitutionality of the Texas law. One assumes that the Mississippi statute will be upheld in due course. Injunctions in Alabama and North Dakota are still in place.