ArticlesVolume 30, Number 2 (2015)

Undue Delegation: Private Delegation and Other Strategies to Challenge Admitting-Privileges Laws

Jacqueline Y. Ma

J.D. Candidate 2016, Columbia Law School

 

Introduction

In November 2015, the Supreme Court granted certiorari to Whole Woman’s Health v. Cole,1 the first reproductive rights case to reach the court since Gonzales v. Carhart2 eight years before. In the intervening time, states have passed an astonishing number of laws and regulations that encroach on women’s access to abortion. Many such laws ostensibly aim to protect the woman and her fetus. Yet these same laws do so by imposing medically unnecessary and onerous procedural requirements on women,3 which can erect massive barriers to abortion access for individuals. Other state laws aim to regulate not the activities of women, but those of abortion providers, who are not a protected class. The reproductive rights movement terms these laws Targeted Regulations of Abortion Providers, or TRAP laws. 4 State legislatures’ passage of TRAP laws accelerated after the Supreme Court’s decision in Carhart, which was taken to signal judicial willingness to uphold state laws that aim to protect an unborn fetus at the expense of reducing a woman’s ability to choose.5

This Note focuses on admitting-privileges laws, a type of TRAP law that requires physicians who provide abortions to obtain staff privileges at a hospital within a certain distance from their clinics. Without these required privileges, physicians performing abortions risk civil and criminal penalties. These laws are especially concerning because they give area hospitals an effective veto over a clinic’s operations, effectively outsourcing the power to deny licenses to private entities. Admitting-privileges decisions are often discretionary for hospital administrators; a hospital’s denial of admitting privileges also lacks state oversight or external appeals.

Admitting-privileges laws are being ratified throughout many states, but have proven resistant to traditional substantive due process challenges. In addition to traditional “undue burden” analysis, a multipronged approach to reproductive rights litigation and advocacy is necessary. Part I of this Note sets forth a brief history of the right to choose an abortion and the current federal legal framework. Then, it details recent state legislative and ballot initiatives aimed at regulating abortion providers. Part II explains the complications of using the “undue burden” doctrine in constitutional challenges to state action, as illuminated by recent cases litigating admitting-privileges laws. It further introduces private-delegation challenges as an alternative method to examine the constitutionality of these laws. Part III looks at the history of private-delegation challenges with respect to admitting-privileges laws and touches on other possible avenues to challenge admitting-privileges regulations.

 

This work licensed with a Creative Commons Attribution License.


 

  1. Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015), cert. granted, 136 S. Ct. 499 (Nov. 13, 2015), argued sub nom. Whole Woman’s Health v. Hellerstedt, No. 15-274 (Mar. 2, 2016).
  2. Gonzalez v. Carhart, 550 U.S. 124 (2007).
  3. Rachel Benson Gold & Elizabeth Nash, TRAP Laws Gain Political Traction While Abortion Clinics— and the Women They Serve—Pay the Price, 16 Guttmacher Pol’y Rev. (Spring 2013), http://www.guttmacher.org/pubs/gpr/16/2/gpr160207.html (http://perma.cc/3WZF-T2VM).
  4. See, e.g., Guttmacher Inst., State Policies In Brief: Targeted Regulations of Abortion Providers (Dec. 1, 2015), http://www.guttmacher.org/statecenter/spibs/spib_TRAP.pdf (http://perma.cc/FFZ8-9Q8U); Targeted Regulation of Abortion Providers (TRAP), ctr. for Reprod. Rights (Aug. 28, 2015), http://reproductiverights.org/en/project/targeted-regulation-of-abortion-providers-trap (http://perma.cc/7BMX-G5RH). Despite legislators’ claims that these laws aim to protect women’s safety, courts have recognized their stronger motive to make abortions unavailable. See, e.g., Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 906, 912 (7th Cir. 2015) (“But the legislature’s intention to impose the two-day deadline, the effect of which would have been to force half the Wisconsin abortion clinics to close for months, is difficult to explain save as a method of preventing abortions that women have a constitutional right to obtain.”);
  5. Carhart, 550 U.S. 124. See also infra notes 146–49 and accompanying text.