The Procedural Issues in the Texas Abortion Case

Posted in: Constitutional Law

In analyzing Monday’s landmark Supreme Court ruling in Whole Woman’s Health v. Hellerstedt, commentators discussed the substantive ruling, largely ignoring the back-and-forth between the majority and the dissenters over procedural questions. The pundits instead explained that in striking down two provisions of Texas law regarding abortion—one requiring that doctors performing abortions have admitting privileges at nearby hospitals and the other requiring that abortion clinics be outfitted as mini hospitals—Justice Breyer’s majority opinion gave teeth to the previously unclear prohibition on laws that place an “undue burden” on abortion rights.

The focus on the substantive holding of Whole Woman’s Health is understandable. Laypeople are not interested in the finer points of third-party standing, claim preclusion, and severability. Indeed, even many lawyers find these issues to be a distraction. I teach constitutional law and I am now in the process of editing Whole Woman’s Health for the annual update to the casebook that I co-edit. In so doing, I am removing nearly all of the discussion of the procedural issues, so that students can pay attention to the substantive constitutional questions.

But I also teach federal courts, and for many years I taught civil procedure. In these classes, students learn that the procedural questions matter—often more than the substantive ones. If your client cannot find a court that will hear her case, it doesn’t matter whether she would ultimately have a winning argument.

Moreover, understanding the procedural debate in Whole Woman’s Health is crucial to evaluating a claim made by Justice Thomas in his solo dissent and by Justice Alito in his dissent (which was joined by Thomas and by Chief Justice Roberts). The dissenters claimed that the Court has routinely failed to apply its normal procedural rules to plaintiffs challenging abortion restrictions. In their view, the majority discarded the rule of law in order to give abortion a kind of most-favored-right status.

As I shall explain, the complaint is baseless. Although some of the procedural issues are close, the majority resolved them all correctly—or at least reasonably. There is no evidence of procedural bad faith on the part of the majority.

Third-Party Standing

As a general matter, people cannot sue to vindicate the rights of others, even if the violation of those rights harms them. For example, suppose that the government proposes to use its power of eminent domain to force the sale of a parcel of land in order to build a new stadium for the local professional football team. The owner of the parcel could go to court to argue that the “taking” of property violates the Fifth Amendment because the stadium is not a “public use” or that the amount of money offered is not “just compensation.” However, a neighbor cannot sue to vindicate the landowner’s Fifth Amendment rights, even though the increased traffic and noise associated with the stadium will adversely affect the neighbor. The neighbor can only sue to vindicate his own rights. An attempt to vindicate someone else’s rights is generally forbidden under the so-called third-party-standing doctrine.

In Whole Woman’s Health, Justice Thomas objected to the fact that doctors, rather than women seeking abortions, were suing to block the Texas law. Although Thomas thinks there is no constitutional right to abortion, he said that the Court’s cases recognizing the right assign it to women. Quoting an earlier abortion case, he observed that the Court justifies the abortion right on the ground that it is among “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Yet, he went on, “the Court has created special rules that cede its enforcement to others.”

There is perhaps some irony here, but Thomas was wrong to think that he somehow caught his colleagues in a contradiction. The general bar on third-party standing is just that: a general principle subject to exceptions. The Court has lifted the bar on third-party standing where there are structural reasons to think that the right-holders themselves are unlikely to come forward to vindicate their own rights.

And that is certainly true with respect to abortion. For one thing, litigating a case to conclusion typically will take much more time than the duration of a pregnancy, whether it ends in abortion or birth. Justice Thomas said that this fact can be accommodated under the Court’s exception to the mootness doctrine for cases that are “capable of repetition yet evading review.” (Thomas actually wrote “capable of repetition yet seeking review,” but this was presumably a typo that will be corrected in the final official publication of the case.)

Yet the mootness exception has never been thought to be a full substitute for third-party standing. And given the private nature of the abortion decision, an exception to mootness will not give women adequate incentive to come forward to litigate their cases for the benefit of others, even if they are permitted to do so pseudonymously. Doctors who perform abortions, by contrast, do have such incentives, as repeat players.

In any event, whatever one thinks of the Court’s practice of allowing exceptions to the general principle barring third-party standing, that practice is not peculiar to abortion cases. The Court has held that a party to a civil case has third-party standing to litigate the rights of prospective jurors and that a bar owner has third-party standing to litigate the rights of her customers.

Claim Preclusion

Texas argued and the dissenters agreed that plaintiffs should not have been allowed to bring their case at all because they had already lost. Under the doctrine of claim preclusion, a party cannot re-litigate a case after she has already lost (or won but on terms she would like to see changed). Before the Texas laws went into effect, some of the plaintiffs unsuccessfully sued to enjoin the admitting-privileges requirement. They lost because the district judge determined that they had not sufficiently proven that the requirement would lead to substantially diminished abortion access. According to the dissenters, that initial loss barred the plaintiffs from challenging the admitting-privileges requirement after it had gone into effect. Moreover, because claim preclusion bars re-litigation of claims that should have been brought in the first case even if they were not brought, the dissenters concluded that the plaintiffs were also barred from challenging the mini-hospital requirement.

Did the majority ignore the rules of claim preclusion? Did it fashion a special abortion exception to claim preclusion? Hardly. Instead, the majority applied the leading codification of the judge-made body of rules of claim preclusion.

As Justice Breyer explained for the majority, when the plaintiffs brought their original action to enjoin enforcement of the admitting-privileges requirement, it had not yet gone into effect. The case was necessarily speculative. Based on an evaluation of the evidence then available, the judge could not conclude that the law would substantially reduce abortion access, and so he allowed it to go into effect. Claim preclusion does not require, however, that a plaintiff who loses a challenge to a law based on a judge’s prediction that the law will have certain effects, should be forever barred from challenging that law again when it turns out that the law actually has other effects. That common-sense principle, the majority said, is also a principle of preclusion law.

Meanwhile, the majority also did not preclude the challenge to the mini-hospital requirement. Justice Breyer explained that the use-it-or-lose-it quality of claim preclusion does not mean that a plaintiff who challenges one provision of a law must challenge every provision of that law. After all, modern laws often contain a great many provisions that operate quite differently. It would be unreasonable and would encourage unnecessary litigation to require plaintiffs to challenge every potentially objectionable provision in their first lawsuit.

In the interest of full disclosure, I should say that I signed a scholars’ brief that Justice Breyer cited in his claim preclusion discussion, but even if one thinks the majority erred in allowing the plaintiffs’ merits case to go forward, his analysis was certainly a reasonable good-faith application of preclusion law. Nothing in it suggests a special exception for abortion cases.


The dissenters also took issue with the remedy the majority ordered. Justice Alito pointed to the Texas law’s emphatic severability clause, which states that every clause, word, and application of the statute should be treated as severable from any part or application found invalid. Thus, he said, the majority was wrong to strike down the challenged laws in their entirety.

Yet once again, the majority simply applied conventional procedural principles. Justice Breyer acknowledged that the severability clause was emphatic, but that is not decisive. A court cannot always sever invalid from valid provisions or applications, even if that is what the legislature wants. Sometimes the law’s various provisions appear to work in tandem, so that severing an invalid provision would not simply preserve the remainder of the law, but actually create a new law.

For that reason, as Justice Breyer noted, the Court has refused to apply a severability clause where doing so would require substantial judicial rewriting of the law. That is especially likely to occur where, as in Whole Woman’s Health, the government argues that particular applications should be severed. The law is written in clauses, not applications. To sever them would thus require judicial rewriting or, what amounts to the same thing, a very complex injunction of the law in just those circumstances where the law operates unconstitutionally.

The dissenters certainly should be familiar with these principles. In 2012, in dissenting from the Court’s opinion upholding the Affordable Care Act (ACA), Justices Thomas and Alito co-authored the following line: “The Judiciary, if it orders uncritical severance, then assumes the legislative function . . . .” They thought that the provisions they deemed invalid in that case were inextricably intertwined with the remaining provisions, just as the majority in Whole Woman’s Health thought about the possible applications of the provisions at issue there.

To be sure, the relevant portions of the ACA did not contain a severability clause, but that fact is of little consequence. As Justice Breyer observed in Whole Woman’s Health, the Court’s prior cases treat a severability clause as “an aid” in making severability determinations, not the final word.

And for good reason. If the court finds that severing applications or clauses would require judicial rewriting of the statute, then separation of powers forbids severing. A severability clause cannot change that conclusion, because a legislature cannot authorize a court to perform a non-judicial act.


Thus, no special exception for challenges to abortion laws is needed to explain the Court’s rulings on third-party standing, claim preclusion, or severability. In each instance, the Court reasonably (and I would say correctly) applied conventional procedural principles applicable across the range of substantive issues. Why then did the dissenters say otherwise, accusing their colleagues in the majority of bad faith?

Part of the answer could be bias—in both directions. Justices inclined favorably towards the merits of a case will tend to filter the procedural issues accordingly, and vice-versa. When doing so, they will then tend to see bad faith on the other side, even when everyone is simply acting subject to an unconscious bias.

There is another possible psychological phenomenon that is peculiar to the Whole Woman’s Health dissenters: projection. Although the justices in the majority did not single out abortion for special procedural protection, the Texas legislature undoubtedly did single out abortion for special substantive rules. As Justice Breyer noted, many medical procedures—from colonoscopies to vasectomies—pose greater risks than abortions but were not subject to the special requirements that Texas imposed on doctors performing abortions. Perhaps in falsely accusing the majority of singling out abortion challenges for special procedural protection, the dissenting justices were projecting the substantive flaws of the Texas law onto their colleagues.