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Border checkpoints and substantive due process: abortion rights in the border zone.



     A. Border Checkpoints: Spatially Selective Immigration
     B. Reproductive Rights and Spatiality: H.B. 2
     A. Casey's Undue Burden Analysis
     B. Immigration Enforcement as Obstacle
     A. The Right
     B. The Benefit
     C. Conditioning
     D. Intentionality
     A. Doctrinal Causation
     B. Individual Rights: Federalism's Failure?


United States Border Patrol checkpoints lace the interior of Texas and other southern border states, typically lying twenty-five to seventy-five miles from the border with Mexico. (1) Federal law permits immigration officers "to board and search for aliens ... any railway car, aircraft, conveyance, or vehicle" located "within a reasonable distance from any external boundary of the United States." (2) At the checkpoints, agents may, pursuant to the Supreme Court's holding in United States v. Martinez-Fuerte, "brief[ly] det[ain] ... travelers" and "require[] of the vehicle's occupants ... a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States." (3) For those within the "border zone"--the area of land between federal interior immigration checkpoints and the international border--travel to the rest of the country functionally requires an encounter with federal immigration enforcement. (4) As a result, unauthorized immigrants living within the border zone avoid such travel and find their world effectively circumscribed by the checkpoints. (5) State laws and regulations with spatially disparate effects, such as recently enacted Texas legislation that compels widespread closure of abortion clinics, therefore have particular significance for undocumented immigrants in the border zone. (6)

In 2013, the State of Texas enacted Texas House Bill 2 (H.B. 2), which regulates abortion providers and could result in the closure of all abortion clinics south and west of internal immigration checkpoints in the state. (7) H.B. 2 requires that all abortion clinics in Texas meet the facility requirements for ambulatory surgical centers and that all doctors performing abortions have hospital admitting privileges within thirty miles of their clinics. (8) The legislation has led to the closure of many clinics in the state (9) and has engendered both controversy and litigation. An as-applied challenge, focusing on the extent to which courts ought to probe legislatures' health-premised justifications for narrowing abortion availability, has reached the Supreme Court. (10) The abortion providers in Texas's border area are among those unable to meet H.B. 2's requirements: both the Whole Woman's Health Clinic in McAllen, a city in Texas's southern Rio Grande Valley, and the two clinics in El Paso, the metropolitan area at Texas's westernmost tip, have not been able to do so. (11)

Because of H.B. 2, undocumented immigrants living in southern and western Texas face the potential closures of the only three abortion clinics in the state that do not require travel through internal immigration checkpoints from the border area. Roughly 822,500 women live in the Rio Grande Valley and the nearby city of Laredo, within the border zone in the southern part of the state. (12) Roughly fifty thousand have neither citizenship nor legal immigration status and are of reproductive age. (13) Were the McAllen clinic to close, the border checkpoints would physically stand between these women and obtaining an abortion under medical care. The undocumented women in the area would not be able to obtain an abortion under medical care unless they were to risk deportation by traveling through the checkpoints, risk death by attempting to circumvent them, or successfully obtain lawful presence in the country before the point at which abortion becomes illegal. (14) In west Texas, roughly four hundred twenty-five thousand women live in the largest metropolitan area, in El Paso County. (15) Closure of the El Paso clinics would mean that the approximately twenty-four thousand undocumented women of reproductive age living in that area would also need to cross a border checkpoint in order to obtain an abortion in Texas. (16) However, these individuals can currently reach a clinic located south of border checkpoints in New Mexico. (17)

Whether H.B. 2 and the checkpoints create a constitutionally impermissible barrier to abortion access remains significant for this group of women three years after the statutory provisions became law. The Fifth Circuit has issued an injunction partially limiting the law's effect by preserving access to the McAllen clinic for undocumented immigrants living in some but not all of the counties within the border zone in South Texas. (18) However, the injunction terminates if a clinic opens closer to the Rio Grande Valley yet beyond the checkpoints and its enjoinment of the admitting privileges requirement extends only to a single, part-time doctor named in the opinion. (19) Because the injunction is underinclusive with respect to undocumented women in the border zone and may terminate, and because the limited relief may not prevent the closure of the McAllen clinic, the separate question of the checkpoints' import to H.B. 2's application to the clinics persists. If access to abortion rights must be evaluated within the confines of one's state, (20) then the El Paso clinic poses constitutional concerns as well. From a theoretical perspective, the broader question of how to think about potential barriers to vindication of substantive due process rights posed by the conjunction of federal immigration enforcement and state regulatory law remains open as well.

This Note identifies and explicates an overlooked constitutional problem with H.B. 2, as applied to the border-zone clinics: in light of the backdrop of federal immigration enforcement, the Texas law violates the reproductive rights of more than eighty thousand women. In evaluating the potential rights burden imposed on undocumented women in the border zone by H.B. 2, the Note applies two analytical frameworks of constitutional law: the undue burden analysis specific to substantive due process abortion jurisprudence and the unconstitutional-conditions doctrine. The Note determines that H.B. 2 violates the reproductive rights of undocumented immigrants in the Texas border area under either analysis. Part I characterizes the spatially selective immigration enforcement regime that forms the backdrop to state legislation and notes the omission of the spatially disparate effect of H.B. 2 from litigation challenging the law. Under the undue burden framework, Part II argues, H.B. 2 has the effect of deterring undocumented women from seeking an abortion. Under the unconstitutional-conditions framework, as Part III explicates, the law violates undocumented women's abortion rights by conditioning abortion access on exposure to immigration enforcement. The causal set that gives rise to the rights burden is unusual: it is comprised of federal immigration enforcement, state statutory provisions regulating abortion clinics, and unauthorized immigrants' (lack of) immigration status. Part IV addresses an important set of counterarguments: it argues that on either framework analysis, and notwithstanding the other elements of the causal set, the state legislation is causally responsible for the violation. This conclusion is both doctrinally accurate and most consonant with constitutional commitments to individual rights in the border zone.

This Note is the first work to analyze the implications of the confluence of state laws with spatially disparate effects and internal checkpoints for the fundamental rights of undocumented immigrants. This confluence highlights the way in which the area along the U.S.-Mexico border inverts federalism protections for a vulnerable minority group that can exercise neither exit nor voice. It also provides one example of the significance of the undertheorized relationship between substantive due process rights and political and physical space.


A. Border Checkpoints: Spatially Selective Immigration Enforcement

The interior Border Patrol checkpoints create a system of spatially selective immigration enforcement within the United States. (21) Individuals driving north from the cities, towns, and ranches along the international border must, eventually, stop at a roadblock set up along the highway. (22) Implementing regulations interpret the "reasonable distance" contemplated in the federal statute authorizing immigration searches as "within too air miles from any external boundary of the United States or any shorter distance" determined by certain Department of Homeland Security officials. (23) At a checkpoint within this "reasonable distance," a Border Patrol agent asks all occupants of the vehicle if they are United States citizens. (24) The agent may then refer individuals to secondary screening for further questioning as to their legal status in the United States. (25) If the Border Patrol agent determines that there is probable cause, individuals may be searched, detained, and, eventually, either charged with a crime or entered into immigration removal proceedings. (26) The Supreme Court has upheld warrantless vehicle stops without particularized suspicion at Border Patrol checkpoints against a Fourth Amendment challenge. (27)

Consequently, for those within the border zone, traveling into the interior of the United States requires reckoning with this legal and physical architecture of empire. (28) In Texas, the border zone encompasses the cities of El Paso and Laredo, the area of southern Texas called the Rio Grande Valley (including the cities of McAllen and Brownsville), and the smaller towns and ranches that dot the border. It is home to more than 2.4 million people in the state. (29) The Border Patrol maintains a web of "permanent" checkpoints--with physical buildings, electronic sensors, and remote-surveillance capabilities--and "tactical" checkpoints on secondary roads, which lack permanent physical structures. (30) Other than by passing through the highway checkpoints or Border Patrol screening at one of the airports in the region, there is no practical way out of the border zone and into northern Texas. (31) In 2012, more than 120 people died trying to evade the Rio Grande Valley's eastern checkpoint by walking through semiarid scrubland. (32)


As others have noted, (33) the Supreme Court's treatment of Border Patrol checkpoints and standards for searches within the space between the checkpoints and the international border make the area what Gerald Neuman has called an "anomalous zone": a space "in which certain legal rules, otherwise regarded as embodying fundamental policies of the larger legal system, are locally suspended." (34) In the border zone, these suspended rules include the typical Fourth Amendment limitations on searches and seizures. (35) In areas in Texas and other states on the southern border, Border Patrol agents require only a reasonable suspicion that an individual is a noncitizen--not probable cause--to effectuate a stop south of the checkpoints. (36) And exiting this area and reaching the rest of the state (and country) requires a warrantless seizure, without particularized suspicion, at the checkpoint. (37) The Supreme Court has justified these deviations from ordinary Fourth Amendment restrictions by explaining that the Border Patrol seeks to keep undocumented persons from moving into the rest of the country, beyond the border zone. (38)

But, as the Court has also recognized, the border zone is not just a place of transit: it is also a place where many people live and work, and that many call home. (39) Justice Powell's majority opinion in United States v. Brignoni-Ponce, upholding roving patrols near the border, noted that major cities, including San Diego, El Paso, and the cities of the Rio Grande Valley, lie within the border zone. (40) In requiring reasonableness for stops in this area, Justice Powell explained that the lack of such a requirement "would subject the residents of these and other areas to potentially unlimited interference with their use of the highways." (41) The opinion expressed the view that while undocumented immigrants use roads in the region to obtain "transportation ... to inland cities"--"seeking to enter the country illegally"--highways in the area "carry ... a large volume of legitimate traffic as well." (42) The next year, in upholding brief seizures at fixed checkpoints, the Court explained that the enforcement was part of a larger effort to "[i]nterdict the flow of illegal entrants from Mexico" who "seek to travel inland" for employment opportunities. (43)

As the conception of the border area in these opinions illustrates, courts do not necessarily recognize and respond to the border zone as a site where not just citizens and those with lawful immigration status but also undocumented persons reside. (44) The dichotomy depicted in the Fourth Amendment border-area cases--between citizens and lawful permanent residents who live in the border zone, on the one hand, and undocumented immigrants who pass through the area in order to enter into the interior to obtain work--does not capture the reality of the space. Estimates suggest that at least two hundred fifteen thousand of those living in the border zone are unauthorized immigrants--over seventy-five percent of whom have lived in the United States for at least five years, and over fifty percent of whom have resided in the country for at least ten years. (45) These are not individuals treating the area as a transient space.

The many undocumented persons living in southern Texas are therefore subject to an enforcement regime that this Note calls, as a shorthand, "spatially selective immigration enforcement." This enforcement is spatially selective in that it involves specific questioning as to immigration status at the internal checkpoints, for those who attempt to travel beyond the border zone. (46) Within the border zone, an encounter with the Border Patrol is not certain and requires reasonable suspicion. It is an attempt to travel beyond the border zone that leads to exposure to spatially selective immigration enforcement and its attendant potential for deportation. (47) The fact that many undocumented immigrants remain in southern Texas for a decade or longer indicates that, by staying within the border zone, individuals are able to remain within the American community--but only within a spatially restricted part of that community. (48)

Legal scholarship has highlighted the constitutional challenges posed by "anomalous zones" more generally (49) and by the border zone in particular. (50) The border-area scholarship has primarily focused on the Fourth Amendment issues engendered by the border and the related Supreme Court jurisprudence. (51) Scholars have also probed race-based immigration policing in the border zone. (52) Yet, the functional restriction on undocumented immigrants' movement created by the checkpoints also implicates access to certain substantive rights where exercise of those rights requires travel. Potential ramifications of this anomalous zone for substantive due process rights remain unexplored. Analyzing H.B. 2's effect on unauthorized immigrants' abortion rights therefore provides a case study that illuminates the unique constitutional conundrum posed by the checkpoints: spatially selective immigration enforcement functionally bars movement out of the area, preventing individuals from exercising their rights.

B. Reproductive Rights and Spatiality: H.B. 2

In the context of H.B. 2, the spatially selective nature of immigration enforcement intersects with a spatial dimension to substantive due process--specifically, here, to abortion access. (53) Much recent abortion litigation has centered on how the exercise of the right depends on the ability to travel and spatial proximity to clinics. In particular, the passage of state laws aimed at closing clinics has generated litigation regarding the undue burden posed by increased travel time. (54) The Seventh Circuit's most recent opinion evaluating the effects of travel, in the context of a potential preliminary injunction, included a map that charted out travel distance in concentric circles from a town where a Planned Parenthood clinic would close if the law were not enjoined. (55) The potential closure of all abortion clinics in Mississippi implicated the spatiality of abortion rights in a slightly different manner, raising the question of whether a state must ensure access to a fundamental right within its borders. (56) H.B. 2, against the backdrop of the checkpoints, creates a third variant of these spatial questions: whether the closure of clinics, requiring an encounter with law enforcement in traveling to abortion clinics, violates the reproductive rights of the group of people for whom that law enforcement is relevant. Travel time raises questions in terms of spatial access as a sliding scale; H.B. 2 and the checkpoints threaten to create, for a certain group, a de facto bar to vindication of the right. The Mississippi regulations raise questions about horizontal federalism; H.B. 2 and the border zone lead to questions about rights vindication in the context of federal-state allocations of power in anomalous zones.

The significance of the closure of abortion clinics in the border zone--and deeper theoretical implications for understandings of federalism and individual rights in the border zone--is also unexplored in legal scholarship. Scholars have analyzed the significance of the Texas abortion restrictions in thinking through legal disabilities experienced by Latinas living in southern Texas (57) and in analyzing the ways that courts fail to perceive rights barriers created by the nature of rural areas. (58) Yet, while media reports have highlighted the major hurdle that checkpoints could pose to undocumented women seeking an abortion, scholarship has not separately explored this potential burden. (59)

The doctrinal puzzle raised by H.B. 2 and the checkpoints--whether there is in fact a violation of fundamental rights--has also been largely missing from the litigation surrounding H.B. 2. In examining the law's effects, the two challenges brought by reproductive-rights advocates have primarily focused on the distance women must travel to access abortion clinics. In the first case, Planned Parenthood v. Abbott, the Fifth Circuit upheld H.B. 2's requirement that doctors performing abortions have admitting privileges at a hospital within thirty miles, against, inter alia, a facial Fourteenth Amendment substantive due process challenge. (60) At trial, a reproductive health clinic executive testified as to the barrier that women with border-crossing cards--statuses for Mexican nationals that restrict lawful presence to within a certain distance from the border--would face in attempting to cross through internal checkpoints to reach the nearest abortion clinic. (61) A Fifth Circuit motions panel noted this testimony but determined in one sentence, "This obstacle is unrelated to the hospital-admitting-privileges requirement." (62)

The second challenge to H.B. 2, Whole Woman's Health v. Hellerstedt, has involved a facial and an as-applied challenge to the provision requiring abortion facilities to meet the required standards for ambulatory surgical centers and an as-applied challenge to the statute's hospital admitting privileges requirement, for the McAllen and El Paso clinics. (63) Discussion of H.B. 2's effects in this litigation has also centered on travel distance: the Fifth Circuit's ruling provided some relief as applied to the McAllen clinic because of the undue burden created by travel time. (64) The plaintiffs' trial brief and some testimony from a witness for the plaintiffs at trial noted the barrier faced by women with border-crossing cards. (65) The district-court opinion listed "immigration status and inability to pass border checkpoints" among eight "practical" obstacles beyond travel distance that, together, indicated that the statute created substantial obstacles for women. (66) Neither the motions panel nor the merits panel at the Fifth Circuit treated "immigration status" distinctly or discussed the checkpoints. An amicus brief at the Supreme Court argues that the law creates an undue burden for Latinas in Texas in part because of "[f]ear of immigration stops ... near the Mexican border" when traveling, including fear "of passing immigration checkpoints." (67)

The border checkpoints pose, though, an independent legal obstacle for rights access in the border zone. Irrespective of travel-distance burdens, the next three Parts argue, state legislation leading to clinic closure in the border area gives rise to problems of rights access that make that legislation constitutionally impermissible. Even if there were no travel-distance problems and no other factors burdening abortion access--even if there were clinics just on the other side of checkpoints located close to the border--state regulations forcing clinics to shutter, such that immigration enforcement is physically positioned between an undocumented individual and the locus of rights vindication, would be unconstitutional.


H.B. 2 provides a case study of the relationship between a spatial administrative enforcement regime that functionally bars travel for certain individuals and access to substantive due process rights premised on a presupposition of the ability to travel. Parts II and III analyze H.B. 2 as applied to the clinics in southern and western Texas using two different doctrinal methodologies: in Part II, the undue burden test first articulated in Justice O'Connor's plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, (68) and in Part III, the transsubstantive unconstitutional conditions doctrine. Before reaching these two analytical frameworks, however, two preliminary clarifications are necessary: one factual and the other legal.

First, this analysis starts from the factual point of departure that the means for unauthorized immigrants to legally cross border checkpoints put forward by Customs and Border Protection, parole in place, is not a realistic alternative that enables vindication of the right to an abortion previability. Media report that Customs and Border Protection has indicated that parole may be the appropriate avenue for undocumented women in southern Texas seeking an abortion. (69) The executive branch has discretion to parole any applicant for admission into the United States "for urgent humanitarian reasons or significant public benefit." (70) This discretionary parole is available for those already within the territory of the United States who entered without inspection. (71) It is less than clear that unauthorized immigrants trying to obtain abortions who sought this discretionary relief would necessarily receive it. (72) Even if they ultimately did receive relief, though, applications for humanitarian parole "are generally adjudicated within 90-120 business days." (73) Unless one were to apply for parole within two weeks of becoming pregnant, this time frame would extend beyond the twenty-week limit on abortion in Texas created by H.B. 2.

Second, noncitizens without legal immigration status who are within the United States have substantive due process rights--as courts routinely recognize. (74) Though this point is well settled, because it is essential to analyzing H.B. 2's constitutionality as applied to border-zone clinics, it merits explication. Textually, substantive due process's extension to all individuals within the United States seems evident on the face of the Fourteenth Amendment's Due Process Clause: "[N]or shall any state deprive any person of life, liberty, or property, without due process of law." (75) As the Supreme Court stated in 1976 in Mathews v. Diaz, "The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection." (76) Since Diaz, both the Supreme Court and lower federal courts have evaluated whether state action violates unauthorized immigrants' substantive due process rights without questioning whether the Due Process Clause extends to these individuals. (77) As one example, in a Ninth Circuit en banc decision, both the majority and the dissent evaluated whether a state statute barring the grant of bail to undocumented arrestees violated substantive due process as a matter of course--without any question from either side as to whether the Due Process Clause applied. (78) As is widely accepted, undocumented persons have substantive due process rights--and such rights encompass the right to decide whether to terminate a pregnancy. (79)

A. Casey's Undue Burden Analysis

Evaluating H.B. 2 as applied to the border-zone clinics through the lens of abortion-specific doctrinal analysis highlights the way in which the anomalous zone in border states, created by federal administrative law and regulation, has implications for state legislation with spatially disparate effects. Under the substantive due process doctrine governing abortion, as delineated in Planned Parenthood of Southeastern Pennsylvania v. Casey, (80) the backdrop of spatially selective federal immigration enforcement makes H.B. 2 unconstitutional as applied to these clinics. Should the McAllen and El Paso clinics close, this Section argues, undocumented women would experience a "substantial obstacle" to exercising the fundamental right to choose whether to terminate a pregnancy. The clinic closures would have the effect of deterring them from exercising that right, because they would have to pass through the internal checkpoints to do so. Applying the logic of Casey--particularly as articulated in its analysis of a state statutory provision requiring spousal notification, which is closely analogous to this context--shows that H.B. 2 violates the Fourteenth Amendment substantive due process rights of undocumented immigrants and therefore is unconstitutional as applied to the border-zone clinics.

Substantive due process analysis of H.B. 2 in the border area requires the use of the Casey framework. (81) Under the "undue burden" standard of review established in Casey, a regulation is a constitutionally impermissible undue burden on a woman's right to choose if it has either "the purpose or [the] effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." (82) While the litigation regarding H.B. 2 has centered on the purpose analysis, in thinking about the intersection of border checkpoints and state law, this aspect of the Casey previability test is less salient: there is little to no evidence of any legislative intent to restrict access specifically for undocumented women in the border zone. (83) The key question is whether, as applied to the clinics in the border zone, H.B. 2 is unconstitutional because it has the "effect of placing a substantial obstacle in the path of' women attempting to secure abortions, or whether the legislation is permissible. And, to determine the answer to that question, it is essential to consider the effect of clinic closures south of border checkpoints on a particular group of women--unauthorized immigrants for whom the clinic closures create a de facto bar to obtaining an abortion. Casey's spousal-notification analysis illustrates the proper approach for assessing the burden created by clinic closures in southern Texas because of the close analogy between three elements of the undue burden analysis: (1) the relevant classes, (2) the burdens imposed on those classes, and (3) the lack of relevance of a particular legal status (marital and immigration, respectively). (84)

In evaluating whether a statute or other state action has the effect of creating a substantial obstacle, Casey explains, the relevant inquiry is not the effect on all women but rather the effect on a subset of women to whom the legal restriction matters. (85) In Casey, the Court struck down the spousal-notification provision in the Pennsylvania law at issue because it created a "substantial obstacle" to obtaining an abortion for women who were at risk of spousal abuse. (86) The statute required that a married woman provide her physician with a signed statement, affirming that she had informed her spouse that she would be obtaining an abortion, before the procedure could be performed. (87) The woman could alternatively provide a signed statement averring that she met one of the statutory exceptions to the requirement. (88) However, those exceptions did not cover all conditions of spousal abuse, nor did they cover situations in which a woman otherwise would not have chosen to notify her spouse due to "the husband's illness, concern about her own health, the imminent failure of the marriage, or the husband's absolute opposition to the abortion." (89)

The State of Pennsylvania argued that, in determining whether the statute had the effect of creating a substantial obstacle, the key question was the percentage of women who sought an abortion who would be affected by the law. (90) The Casey opinion, though, explained that this approach was incorrect. (91) Rather, the scope of the inquiry properly focused on "the group for whom the law is a restriction, not the group for whom the law is irrelevant"--the key question was, out of the group affected by the law, whether in "a large fraction of cases" the statutory provision gave rise to a substantial obstacle. (92) It was only once the group "of women upon whom the statute operates" or, in other words, "those whose conduct [the legislation] affects" was determined that a court could then determine whether the imposed burden was undue. (93) For the spousal-notification requirement, the scope of the undue burden inquiry was not all women in Pennsylvania or even all married women seeking abortions. (94) For most married women, the Court explained, the statute would not change their behavior, because "[i]n well-functioning marriages, spouses discuss important intimate decisions." (95) Consequently, in ascertaining whether the spousal-notification requirement posed an undue burden, the inquiry as to potential burden was limited to "married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the exceptions to the notice requirement." (96)

Similarly, in determining whether the statutory provisions compelling the closure of the McAllen and El Paso clinics are constitutionally permissible, one does not evaluate the effect of the closures on all women in Texas, all women in those cities, or all women in the border zone. Rather, the scope of the inquiry focuses on "the group for whom the law is a restriction, not the group for whom the law is irrelevant." (97) Following Casey, federal courts have applied Casey's limited-inquiry approach in the context of clinic closures. (98) In evaluating the appropriateness of a preliminary injunction of admitting privileges requirements in Wisconsin that would lead to clinic closures, for example, a district court explained that the scope of the relevant inquiry was "women seeking abortions who are impacted by the closure of [two clinics], and the reduction of capacity of [a third] clinic. The question is what percentage of those women will be substantially impacted." (99) Similarly, in evaluating the closure of the clinics in the border zone, the appropriate focus is the group of women seeking abortions "for whom the law is a restriction"--the group that experiences some sort of burden due to the law, whether due to travel time or the need to pass through border checkpoints. (100) Once the group that experiences some sort of burden is ascertained, the effects analysis asks whether, for a "significant number" or "large fraction" of the group who experiences some sort of effect, the burden is undue. (101) The Casey Court determined that Pennsylvania's spousal-notification requirement was invalid because, "in a large fraction of the cases in which [the statutory provision was] relevant, it ... operate[d] as a substantial obstacle." (102) This "large fraction" language has been the subject of attempts at judicial line drawing since Casey. (103) Casey itself, though, did not give any precise ratio or number-there was no calculation in the opinion as to the percentage or absolute number of women who experienced an undue burden from the spousal-notification requirement. (104) As noted above, Casey quoted the district court's findings as to a number of circumstances in which the spousal-notification requirement might change women's behavior--most significantly, in spousal-abuse situations, but also in instances where the marriage was disintegrating, the spouse was ill or opposed to abortion, or the woman was concerned with her own health. (105) In determining that spousal abuse meant that, in a "large fraction" of cases, the law gave rise to an undue burden, Casey did not estimate the numerical ratio of spousal abuse versus the other situations it delineated. (106) Rather, it reasoned that women who were subject to potential domestic abuse were "likely to be deterred from procuring an abortion," that there were many such women in the United States ("millions"), and that, consequently, in a "large fraction" of the relevant cases, where behavior might change, the law created a substantial obstacle to obtaining an abortion. (107)

The nature of this effects analysis--looking to some subset of the burdened population for whom the burden may be undue--is what makes the interior checkpoints so salient to analysis of the potential clinic closures in the border zone. For undocumented women, closure of the McAllen and El Paso clinics--of the clinics south and west of checkpoints--means that they are "likely to be deterred from procuring an abortion," as those at risk of spousal abuse were likely to be deterred under the Pennsylvania provision at issue in Casey. Crossing border checkpoints to obtain an abortion risks detention and deportation, including the possibility of permanent separation from family members in the United States. (108) As was apparently true for those subject to spousal abuse in Casey, there appears to be no readily available empirical evidence on the precise effect of this choice on women's actions or the number or percentage of undocumented women seeking an abortion in the border zone who will be deterred from doing so. (109) As in the case of those at risk of spousal abuse, unauthorized immigrants are not easily identifiable and likely reluctant to come forward for such research. Nevertheless, the high stakes for undocumented women in crossing checkpoints, coupled with anecdotal evidence that the checkpoints do function as a deterrent, (110) indicate that--like those deterred by spousal abuse in Casey-undocumented women who would otherwise obtain an abortion are, if the clinics close, likely to be deterred from doing so.

For undocumented immigrants seeking abortions in light of possible clinic closures and the background reality of internal immigration checkpoints, the analogy to the spousal-notification requirement in Casey and its effect on potential spousal abuse victims is particularly apt. Just as, in Casey, the background reality of a condition in certain women's lives meant that a new statutory burden made such women "likely to be deterred from procuring an abortion," (111) the background reality of the border checkpoints means that a significant number of the women living in southern Texas without legal status will probably be deterred from obtaining an abortion. Casey noted that those in abusive situations "may have very good reasons for not wishing to inform their husbands," including possible abuse of themselves or their children and their spouses' ability to leverage potential disparities in economic power. Similarly, the consequences of removal from the United States are potentially enormous; undocumented women may also "have very good reasons" for avoiding contact with internal border checkpoints.

The parallel between the two statuses is especially appropriate in that, just as married women "do not lose their constitutionally protected liberty" (112) because of their legal status, neither do undocumented women. Governmental action on behalf of the underlying legal regime related to a woman's status--whether that be marital status and regulation of marriage or immigration status and regulation of immigration--may not, Casey indicates, be a means of depriving women of their fundamental rights, where they maintain those rights regardless of that legal status. While this point is certainly not essential to the large-fraction analysis, it suggests the particular aptness of the analogy to the spousal-notification requirement.

If the analogy to Casey is relatively straightforward, though, what should we make of the Fifth Circuit's brief analysis of the issue, which quickly discarded the "obstacle" of border checkpoints as "unrelated to the hospital-admitting-privileges requirement"? (113) This determination reflects-in addition to a lack of record information on the point (114)--an erroneous understanding of Casey, relying too much on language in the selective-funding case Harris v. McRae (115) without considering Casey's later analysis. (116) It fails to recognize that Harris's language that the government "may not place obstacles in the path of a woman's exercise of her freedom of choice, [but] it need not remove those not of its own creation" (117) is at odds with Casey, unless read in the broader context of the selective-funding cases. Abusive spouses are not the creation of the government, yet Casey found that where their actions combined with Pennsylvania's spousal-notification requirement, the burden was undue. (118) Harris, in determining that the availability of federal Medicaid funds for pregnancy-related expenses but not for abortion was constitutionally permissible, decided that such funds' availability "leaves an indigent woman with at least the same range of choice" as to whether to obtain an abortion; (119) the spousal-notification requirement in Casey and the closure of clinics south of border checkpoints, by contrast, restrict choice by removing access, such that the option of abortion is functionally unavailable.

H.B. 2 creates a substantial obstacle for a "significant number" or "large fraction" of the women for whom the law is relevant: the undocumented immigrants for whom the clinic closures impose a virtually per se bar to obtaining an abortion. The numbers here cannot be obtained with precision, but Casey indicates that they need not be. The closure of clinics in the border zone creates obstacles for those seeking an abortion, due to increased travel distance. (120) That group of individuals--those burdened by distance--is analogous to the group of women in Casey who might have wished not to notify their spouse for reasons unrelated to domestic violence. Casey did not attempt to calculate this group's precise number, or to compare it mathematically to the number for whom the provision was a de facto per se bar due to spousal abuse. Consequently, under Casey, it is not necessary to determine the exact number of undocumented women in Texas's border zone. Rather, the point is that undocumented immigrants in southern Texas who are burdened by the clinic closures--whether that group is framed as a "large fraction" or a "significant number" of those burdened by the closures--experience the burden on their right to abortion as a virtual bar.

There are likely more than eighty thousand undocumented women of reproductive age in Texas's border zone. Just as the Casey court was able to infer from the high number of women who are subject to spousal abuse in the United States that a "large fraction" of those who would not otherwise inform their spouses belonged to this group, in the H.B. 2 context we can infer that a "large fraction" of those affected by the clinic closures in the border zone are undocumented immigrants who now may be functionally unable to obtain an abortion.

B. Immigration Enforcement as Obstacle

A potential objection to this doctrinal understanding of the burden posed by immigration checkpoints is the nature of the obstacle: one might say that immigration enforcement is no obstacle to rights vindication in this context at all, due to the availability of abortion in immigration detention. Federal immigration-detention standards provide that "[a] pregnant detainee in custody shall have access to pregnancy services including ... abortion services" and that every place of detention "shall ... provide its female detainees with access to" abortion. (121) Either undocumented women will not be detained at a checkpoint and will continue driving until they reach an abortion clinic, or they will be detained and may avail themselves of access to abortion care while detained. Consequently, the objection might run, undocumented women in the Rio Grande Valley and El Paso face unfortunate circumstances, but there is no absolute bar to abortion access: either outcome could end in exercise of the right. How could there be any rights pressure, then--let alone an undue burden? Evaluating the nature of immigration enforcement as an obstacle implicates the functional nature of undue burden analysis, which takes into account not whether there is some possible avenue to rights vindication but rather the probability of deterrence due to cost-benefit analysis associated with the barrier to vindication of the right.

The key question in evaluating whether state action gives rise to an undue burden under Casey's effects prong is whether the action "impose[s] a substantial obstacle," such that individuals are "likely to be deterred from procuring an abortion." (122) Casey explained that because those subject to potential spousal abuse were likely to weigh the cost-benefit analysis and not notify their spouses, out of "fear for their safety and the safety of their children," the requirement meant they were "likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases." (123) Formally, women in this situation could tell their spouses, potentially incur abuse, and obtain abortions; functionally, the Court recognized, the potential cost of doing so was so great that these women were "likely to be deterred"--likely to choose not to vindicate the abortion right. (124)

Similarly, the rights burden created in this situation by H.B. 2 is not because there is no possible way for an unauthorized immigrant living in southern Texas to vindicate her right to obtain an abortion. Instead, the rights burden exists because, due to both the perceived very high risk of detention and deportation in passing through checkpoints (125) and the magnitude of the repercussions of detention and deportation, undocumented women are "likely to be deterred" from obtaining an abortion at all. Removal from the United States can be personally catastrophic: an individual is separated, perhaps permanently, (126) from her home, her family, her community, and her work-in short, from the life that she has created for herself. (127) Those in families of mixed citizenship and immigration statuses face an especially wrenching choice: to uproot everyone, potentially moving to a country where some or all family members do not have ties or even speak the predominant language, or to leave some family members behind for an indefinite period of time. (128) The Supreme Court has described deportation as "the equivalent of banishment or exile." (129) It has recognized that deportation may cause the "loss of both property and life; or of all that makes life worth living." (130) When a woman may obtain an abortion only by placing herself at risk of losing "all that makes life worth living," it is reasonable to surmise that many women who would otherwise choose to terminate that pregnancy will not do so.

Moreover, even beyond the enormous harm of deportation, the probability of losing one's liberty (131) by being placed in immigration detention is likely to function as a deterrent in traveling through the checkpoints for abortion purposes. (132) Even for those without legal status who are not ultimately deported, because they are granted a form of affirmative relief--asylum or withholding of removal-the process for receiving affirmative relief may take years, and if the immigration judge determines that they are a flight risk or a danger to the community, they may spend those years in detention. (133) Federal courts have recognized that, for sentencing purposes, time spent in immigration detention either may be equivalent to time spent in prison (134) or may qualify a convicted individual for a downward departure in sentencing. (135)

When weighing, in combination, the threat of removal and the hazard of detention in passing through internal checkpoints, a "significant number" of women without legal status are "likely to be deterred." (136) Even if potential detention is not an absolute bar to abortion, for many women the utility analysis of the magnitude and probability of harm from being detained and likely deported will itself function as a bar. Under the current doctrinal analysis for violations of the substantive due process right to choose whether to terminate a pregnancy, undocumented women--a "relevant fraction" of the population affected by H.B. 2's admitting privileges and ambulatory surgical center requirements--experience an undue burden. This specific doctrinal analysis demonstrates how, taking into account the backdrop of federal checkpoints, state legislation may burden rights in the border zone.
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Title Annotation:Introduction through II. H.B. 2 as Undue Burden, p. 1744-1775
Author:Huddleston, Kate
Publication:Yale Law Journal
Date:Apr 1, 2016
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