What City of Los Angeles v. Patel Might Tell Us About Abortion

Last month, the U.S. Supreme Court decided City of Los Angeles v. Patel. The case presented several issues, including whether a facial challenge to a statute is cognizable under the Fourth Amendment and if so, whether the challenged law in Patel is itself facially unconstitutional. I have discussed some of the Fourth Amendment issues in another column, published before the case was decided. In this column, I will focus on the majority’s response to the argument that the law in question could not be facially unconstitutional, in which the majority invoked Planned Parenthood v. Casey. Reliance upon this case likely has particular resonance for one member of the Supreme Court—Justice Scalia—who has been the leading champion of limiting access to facial challenges outside of the First Amendment area.

The Fourth Amendment Issue, Briefly

To be able to speak clearly about the facial challenge issue in Patel, it is useful to know the underlying merits question. Patel involved a statute that required a number of things of hotel operators. First, it required them to keep records of various sorts of identity information about their guests. No one challenged this part. The challenged portion provided that the hotel operators were required to produce these records if any Los Angeles police officer asked for them. If a hotel operator refused such a demand, moreover, he or she would be guilty of a misdemeanor, even though there had been no opportunity for the demand to be reviewed by a neutral decision-maker, to determine—for example—whether the officer was motivated by the desire to harass the people in the specific hotel.

Hotel operators claimed that they have a Fourth Amendment right to privacy in their hotel records, a proposition with which the U.S. Supreme Court agreed, because the registry is the private property of the hotel. The respondents claimed further that there ought to be some available pre-compliance review by a neutral decision-maker, in case a hotel operator has reason to decline the request for the records. As written, the law in question allows for charging the hotel operator with a crime for failing to comply with a request, with no neutral party having heard why the hotel operator refused.

Facial Challenges in the Abortion Context

The City of Los Angeles argued, among other things, that the statute at issue is facially valid under the Fourth Amendment. The standard the City urged for reviewing a facial challenge used language from United States v. Salerno indicating that a facial challenge to a statute [outside the free speech context] succeeds only in the event that “the challenger . . . establish[es] that no set of circumstances exists under which the Act would be valid.” Justice Scalia spoke at length about this standard in his dissent from the denial of certiorari in the case of Ada v. Guam Society of Obstetricians and Gynecologists.

Ada involved abortion and was thus the sort of case that generally triggers irritation in Justice Scalia. In Ada, the U.S. Court of Appeals for the Ninth Circuit had—on the authority of Roe v. Wade and Casey—facially invalidated a Guam law that prohibited all abortions except those where two independent doctors confirm that the pregnancy would endanger the woman’s life or seriously impair her health. Justice Scalia cited the Salerno standard for facial challenges with approval and asserted that rather than denying certiorari, the Supreme Court should have taken the case, vacated the decision of the U.S. Court of Appeals for the Ninth Circuit, and remanded to the Ninth Circuit to consider and apply the Salerno “no set of circumstances” test.

To truly understand Justice Scalia’s vision of the Salerno test of facial challenges (at least with respect to abortion regulations), consider the following statute: the law of State X provides “Any medical provider who performs any abortion, from the moment of conception or at any other time during pregnancy, for any reason, shall be guilty of a felony punishable by up to ten years imprisonment.” Justice Scalia’s view is that such a statute is facially valid, because there are scenarios in which application of this statute would pose no constitutional difficulties, such as the case of a woman to whose life or health the pregnancy poses no threat and who is seeking an abortion in the 30^th week of her pregnancy, past the point of viability. Despite the breadth of the hypothetical statute, then, Justice Scalia would deem it immune from a facial challenge on the grounds that one could imagine a situation in which the law would apply and the abortion in question would be legally subject to prohibition, under existing precedents.

This issue has arisen repeatedly for Justice Scalia in abortion cases. A particularly important one involved Casey. One of the challenged parts of the Pennsylvania law at issue there provided that, with some exceptions, a married woman, as a prerequisite to having an abortion, would have to sign a statement indicating that she had notified her husband of her plan to terminate her pregnancy. Petitioner and amici explained to the Court that many women who are subject to domestic violence are terrified to inform their spouses about a plan to abort (or perhaps even to inform them of the pregnancy itself), so that this requirement would pose an unconstitutional burden on the rights of such women to obtain an abortion. As stated by a majority,

[r]espondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face.

The majority then replied to this argument that “[t]he analysis does not end with the one percent of women upon whom the statute operates; it begins there. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” The people to whom the law applies are those who, absent a mandate from the Pennsylvania law, would certainly not tell their spouses about their choice. It is the impact on this population—the population of those whom the law is forcing to do something they do not want to do—that matters for a facial challenge. Thus, even though a minority of women deciding to terminate a pregnancy are married to violent husbands, the women in that group were sufficiently salient (as the ones who are actually affected by the law) to lead to the invalidation of the husband notification provision as facially unconstitutional. This is plainly a different standard from the one that Justice Scalia would apply (in which even a complete ban on all abortions could survive a facial challenge because some subset of all abortions could validly be prohibited).

The Facial Challenge in Patel

To resist the facial challenge in Patel, several Justices identified hypothetical scenarios in which it would be constitutionally valid for an officer to demand a hotel registry without any opportunity for pre-compliance review. For example, if a hotel operator heard the request from the police officer and indicated that she had no desire to challenge the request but instead consented to the search, then this would be constitutionally unproblematic, because consent searches are “reasonable searches” under the Fourth Amendment. Another example would be the case of an exigent circumstance, in which someone was being held involuntarily and sexually assaulted in a hotel room. A majority responded that if there is consent or an obvious exigent circumstance, then of course police may go ahead and search, but that it is not the challenged law “doing the work” there; it is the presence of consent or the existence of an exigent circumstance. Quoting the language of Casey about the proper focus for a facial challenge (the people for whom the law poses a restriction rather than the people to whom the law is irrelevant), the Court said that we measure the facial validity of the Los Angeles law by examining those cases in which the application of the law makes a difference, not those cases in which the law is irrelevant (plainly drawing an analogy to women who would have told their spouses about their plans to terminate a pregnancy even without the Pennsylvania law ordering them to do so).

By relying on Casey, a majority of the Court in Patel accomplished two separate things. First it embraced a more generous approach to facial challenges than that for which several Justices (especially Justice Scalia) have advocated and assumed was the correct standard. Being able to imagine a scenario in which the challenged statute could be applied without violating the Constitution is now no longer a plausible way to defeat a facial challenge. In Casey, in fact, the standard was especially generous because not only was the Court uninterested in considering the women who would have notified their husbands of their abortion plans without a legal requirement, but it was implicitly uninterested in considering women who were inclined to keep their choice to themselves but would have faced no potentially violent repercussions had they notified their spouses under the statute. Reliance on Casey thus bodes well for those interested in bringing facial challenges against statutes that may admit of more than just a few purely hypothetical valid applications.

Another implication of the Court’s reliance on Casey in Patel is to bolster the legitimacy of Casey, a decision affirming a woman’s right to terminate her pregnancy prior to viability. At a time when state abortion regulations have been accumulating, it is useful and heartening for those who support a right to abortion to have the Supreme Court cite Casey with approval, especially a portion of the decision that focuses on the dangers and violence that confront the women who make the often difficult and painful choice to terminate a pregnancy.

Bolstering the right to abortion may be especially appropriate in a case about the Fourth Amendment right against unreasonable searches. As I wrote in an article in Columbia Law Review a number of years ago, entitled The Qualitative Dimension of Fourth Amendment Reasonableness, the right to security guaranteed by the Fourth Amendment logically contemplates more than merely a quantitative standard, much as the Due Process Clauses of the Fourteenth (and Fifth) Amendments have been understood to contemplate more than a purely quantitative standard of proof at a hearing or trial. Part of what privacy means is the right to make some kinds of decisions about how to live one’s life without any state interference, even if the state can gather evidence amounting to “probable cause” or “proof beyond a reasonable doubt” that a person is making one of those decisions. The right to terminate an unwanted pregnancy is one such decision, and an implied link between the Fourth Amendment privacy and the substantive privacy right to control one’s reproduction indicates that a big part of why the government must stay out of people’s private spaces is to allow people to use those spaces to make intensely private, personal, and intimate choices in which the government should have no say. Having Casey, an abortion decision, make an appearance in a case about the Fourth Amendment right against unreasonable searches, helps fortify the link between substantive and procedural privacy, albeit subtly and indirectly.