Libertarians And Abortion Restrictions: Where’s The Outrage?

Jessie Hill Associate Dean, Case Western Reserve University School of Law
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Certain small businesses are under relentless attack in this country. In virtually every state, hostile legislatures pass increasingly demanding regulations, many so onerous that they threaten to drive them out of the marketplace entirely. Like other such restrictions on commercial entities, they are justified in the name of health and safety. But there is no evidence that these reams of regulations actually advance any purported state interest in health or safety. What’s more, the targeted businesses are engaging in a constitutionally protected activity: the provision of abortion services.

Pretextual health and safety regulations imposed on abortion clinics, often called TRAP laws (for “Targeted Regulation of Abortion Providers”), are becoming increasingly common and intrusive. One recent but widespread variety of TRAP law requires physicians to secure admitting privileges at local hospitals. Another singles out abortion providers for prohibitively costly facility upgrades. Courts have repeatedly found that these requirements provide no safety benefits, and there is virtually no evidence to support states’ claims that they protect women’s health.

Next month, the Supreme Court will hear an appeal arising out of Texas to decide precisely whether these sorts of laws violate the Constitution—particularly whether they violate the rule, announced in the 1992 case Planned Parenthood v. Casey, that state laws cannot impose an “undue burden” on women’s access to abortion.

TRAP laws are precisely the kind of legislation that conservative, libertarian groups ought to oppose. The Cato Institute, which is “dedicated to the principles of individual liberty, limited government, free markets and peace,” trumpets the importance of “[s]ocial and economic freedom.” Likewise, the libertarian group Institute for Justice decries “arbitrary licensing and permitting laws” that undermine the “right to earn a living.”

It is telling, for example, that the Institute for Justice (IJ) recently sued over an Arkansas law that prevents orthodontists—who are also licensed dentists—from providing teeth cleanings. They argue that the law violates the orthodontists’ right to practice in fields in which they are qualified, while driving up costs and reducing the availability of dental health care. IJ contends there is no valid health or safety reason for such laws, which work primarily to protect general dentists’ economic interests. Yet neither Cato nor IJ has spoken out against TRAP laws.

Americans who are concerned about economic liberty should also oppose abortion restrictions that prevent qualified physicians from providing a lawful service and thus driving up the costs of reproductive health care while reducing access. These laws serve no legitimate state interest. As numerous courts have recognized, there is no evidence that they promote patient safety or health. Indeed, they threaten patients’ health by forcing them to travel farther to seek the health care they need.

At the same time, Americans who are committed to safe abortion access and affordable health care should resist state laws that unnecessarily restrict other types of businesses as well. The poorest and most disenfranchised among us will always pay the price when legislatures act to protect the economic interests of a powerful few. To take but one example, a March 2014 report by the Federal Trade Commission found that legal restrictions on the ability of nurse practitioners to serve patients drives up costs and reduces access to health care across the board, but most severely in communities that are already poor and underserved.

Still, legislatures will continue to pass such laws with impunity as long as courts give them a pass when they purport to act in the interests of health and safety. That’s exactly what happened in the Texas case now under review at the Supreme Court. The Fifth Circuit applied what’s known as “rational basis” review in a way that essentially asked whether there was any conceivable legitimate basis for these economic restrictions, whether grounded in evidence or not. Nearly every law is upheld when it is subject to this lax form of scrutiny, which falls far short of the heightened scrutiny abortion restrictions are supposed to receive.

To be sure, some pro-life libertarians believe that abortion is different because they view fetuses as entitled to the protection of the Constitution. For them, the state’s interest in the fetus outweighs the economic liberty of physicians and clinics. But this line of thinking suffers from a basic misunderstanding of TRAP laws and their stated purpose.

States do not claim that they are passing TRAP laws to restrict access to abortion and further their interest in fetal life—nor could they, since unnecessary health regulations passed with the purpose of restricting abortion access are clearly unconstitutional under established precedent. Instead, states claim that the laws are justified solely by the interest in protecting women’s health, despite the overwhelming evidence that these laws have no medical benefit.

In fact, Richard Epstein, a highly-regarded libertarian legal scholar who disagrees with Roe, has nonetheless argued that, precisely because they rely on flimsy health and safety rationales, the sorts of restrictions at issue in the Texas case are unconstitutional under established constitutional law and undesirable from a libertarian perspective.

Indeed, anyone who is committed to the idea that courts should uphold established constitutional rights ought to balk at legislatures’ use of groundless claims of protecting safety to drive legitimate, qualified practitioners out of business. And anyone who cares about expanding health care access for the poor ought to look beyond the abortion clinics and criticize any occupational regulations that serve powerful economic interests at the expense of the health care consumer.

Professor Jessie Hill is the Judge Ben C. Green Professor of Law and Associate Dean for Academic Affairs at the Case Western Reserve University School of Law