The Yale Law Journal

April 2016

Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone

Kate Huddleston

abstract. This Note assesses the constitutionality of Texas House Bill 2 (H.B. 2), which regulates abortion providers, as applied to clinics located in the area between the state’s border with Mexico and internal federal immigration checkpoints. Should these statutory provisions go into full effect and lead to these clinics’ closure, undocumented immigrants living in the border zone will need to pass through the internal checkpoints to reach abortion clinics elsewhere in the state. The Note evaluates the Texas statutory provisions as applied to border-zone clinics using two distinct analytical frameworks: the undue burden analysis specific to abortion jurisprudence and the doctrine of unconstitutional conditions. The Note concludes that under either approach, H.B. 2, as applied to these clinics, violates the reproductive rights of undocumented immigrants and is therefore unconstitutional. The rights burden created for this group by Texas’s law regulating abortion clinics illuminates both the way in which federal-state allocations of power in the border zone may endanger substantive due process rights and, more broadly, the relationship between geographic space and substantive due process.

author. Yale Law School, J.D. expected 2016. For comments and conversations, I am grateful to Aurelia Chaudhury, Hilary Ledwell, Urja Mittal, and Joshua Revesz. Thanks to Zayn Siddique, Rebecca Lee, and Michael Clemente for thoughtful editing. I am especially grateful to Judith Resnik and Michael Wishnie for guidance and incisive suggestions.


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 state9 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.

I. the border zone and h.b. 2

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 100 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

Figure 1.

border patrol permanent checkpoints along the southwest border

Courtesy of the U.S. Government Accountability Office. Note that this map includes only permanent, not tactical, checkpoints.


As others have noted,33the 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 generally49 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 Texas57 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 panelnoted 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.

II. h.b. 2 as undue burden

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 discretionaryrelief 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, theCourt 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 point114—an erroneous understanding of Casey, relying too much on language in the selective-funding case Harris v. McRae115 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 ofthe 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. 2is 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 checkpoints125 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 liberty131 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 prison134 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.

III. h.b. 2 and border checkpoints as unconstitutional condition

In the specific doctrinal context of abortion jurisprudence, then, H.B. 2 as applied to the border zone violates the Fourteenth Amendment’s substantive due process guarantee because it has the effect of creating a substantial obstacle for undocumented women. Another means of thinking of the harm of H.B. 2 for undocumented women in the border zone, though, is not merely through the ramifications of the legislation—the functional inability to access abortion services—but, more broadly, as creating a choice that is constitutionally suspect: a choice between exercising one’s fundamental right and avoiding exposure to immigration enforcement. Thus, another way to conceive of the problem—ultimately arriving at the same conclusion, but with an analysis generalizable to rights burdenings beyond the abortion context—is through the doctrine of unconstitutional conditions. Framing the problem in more general terms and examining H.B. 2 on these grounds demonstrates the way that state legislation with spatially disparate effects may, more generally, create constitutional problems given the reality of internal checkpoints. Such legislation gives rise to unconstitutional conditions that impermissibly pressure rights. The key insight of this Part is that we ought to conceive of barriers to access engendered by the confluence of spatially disparate state legislation and federal internal immigration checkpoints as an unconstitutional-conditions problem.

Evaluating the problem through the lens of unconstitutional conditions provides a separate ground for H.B. 2’s unconstitutionality, independent of the Casey analysis. Whether undocumented women are in fact deterred from seeking an abortion by the closure of all clinics south of border checkpoints is not the relevant inquiry under unconstitutional-conditions doctrine—instead, the question is whether women must choose between a discretionary benefit and the exercise of a constitutional right.137 The de facto requirement created by Texas law that a woman without legal status must pass through an internal Border Patrol checkpoint to reach abortion services creates an unconstitutional condition on the exercise of the fundamental right, because of the coercive nature of the choice. Such an unconstitutional condition is a violation of a woman’s right to choose to terminate her pregnancy.

This mode of analysis indicates that the situation that H.B. 2 creates for undocumented women in southern Texas is one instantiation of a larger problem: the way that the conjunction of internal checkpoints and state legislation with spatially disparate effects on access to rights may create a constitutionally impermissible choice for undocumented individuals. This insight—that unconstitutional-conditions doctrine provides an alternative means of evaluating the problem—and the subsequent evaluation require further interrogation. This Part’s analysis turns first to the nature of the benefit at stake, then to an evaluation of whether there is sufficient germaneness for an unconstitutional condition, and finally to the additional complication of the multiple state actors who together give rise to the condition.

The functional requirement that an individual choose between exercising a fundamental right—in this case, the right to obtain an abortion—and forgoing questioning by Border Patrol officers as to one’s immigration status implicates this transsubstantive doctrine. The underlying idea of unconstitutional-conditions doctrine is, essentially, that the government cannot create an impermissibly rights-pressuring choice.138 As the Supreme Court recently explained in Koontz v. St. Johns River Water Management District, in the individual-rights context the doctrine bars “the government [from] deny[ing] a benefit to a person because he [or she] exercises a constitutional right.”139 For example, a state may not make public employment contingent on an individual’s giving up her right to free speech.140 Such a choice is impermissible even if the benefit is not one to which the person has a “right . . . and even though the government may deny him the benefit for any number of reasons.”141 Moreover, it is impermissible regardless of what the individual ultimately chooses—whether she opts to pass up the benefit or instead to forgo exercise of the right.142 Recent takings cases have required a “nexus” and “rough proportionality” between the relinquishment of the rights exercise and the granting of the benefit.143

Originally applied in the context of economic substantive due process,144 unconstitutional-conditions doctrine—or, as it is sometimes termed, the conditional-offer problem145—applies to a situation in which the exercise of an individual constitutional right is conditioned. Apparently not limited to any particular subset or constellation of rights, the doctrine is a “multi-function doctrine”146 useful in evaluating situations in which state action leads to a situation that conditions rights on forgoing a benefit, or vice versa. The Supreme Court has used unconstitutional-conditions analysis to evaluate claims that state action violates freedom of speech,147 free exercise of religion,148 the right to refrain from self-incrimination,149 the right to travel,150 and the Takings Clause.151 Federal courts of appeals have recognized the applicability of unconstitutional-conditions analysis to claims of violations of freedom of speech, petition, assembly, and association;152 the Establishment Clause;153 freedom from unreasonable search and seizure;154 the Takings Clause;155 the Sixth Amendment right to trial;156 the right to appeal;157 and the right to access to a federal forum.158

One theorist has described unconstitutional-conditions doctrine as triggered when governmental action creates the biconditional “if ~x, then y; and if x, then ~y.”159 This formulation dovetails with the Supreme Court’s most recent explication of the doctrine, in Justice Alito’s majority opinion in Koontz: that whether the individual whose rights are under pressure chooses the benefit or the right is irrelevant.160 Under this conceit, the sort of situation created by border checkpoints and H.B. 2 is a quintessential unconstitutional-conditions problem. If the individual chooses to undergo questioning as to immigration status by the Border Patrol, she may travel north to access abortion services; if she declines to exercise her right to access an abortion, she may protect herself from such immigration enforcement by remaining in the border zone.161 A state actor presumably could not directly create a barrier to an individual’s travel to access abortion.162 The unconstitutional-conditions doctrine means that the indirect creation of a barrier, by legislating out of existence all the clinics within a given area and consequently giving rise to the biconditional, is likewise impermissible.163

This straightforward formulation, though, elides some of the messiness of the unconstitutional-conditions doctrine as formulated and explicated by the federal courts.164 First, and least problematically, we might question whether abortion access is a right that falls within the scope of unconstitutional-conditions doctrine at all. Next, we might wonder whether the biconditional formulation is appropriate here—whether not having to cross immigration checkpoints is a “discretionary benefit” for the purposes of the doctrine. We might then ask whether there is any conditioning at all and, if so, whether that conditioning is in fact constitutionally impermissible. And, lastly, we ought to consider the fact that the application of the unconstitutional-conditions doctrine in this circumstance, where the decisions as to the grant or denial of the benefit and the creation of the condition are due to the independent actions of a state and a federal actor, implicates the role of intentionality in the doctrine.

The unconstitutional-conditions analysis deserves a caveat. The doctrine both is part of constitutional common law and applies in a variety of doctrinal contexts regarding individual rights.165 Consequently, it is not the most straightforward area of doctrinal analysis; like all human constructs, it is imperfectly articulated. But it is a methodological tool that sheds particular light on situations in which individual rights seem constrained rather than expanded by choice. This Part’s analysis starts from the basic premises that unconstitutional-conditions doctrine, while not perfectly contoured in all respects, is an ordinary feature of constitutional law, and that its implications for the border zone deserve attention.166

A. The Right

Unconstitutional-conditions doctrine has particular salience in the abortion context, as is relevant to the fact-specific problem of H.B. 2. Two selective-funding cases—Maher v. Roe, challenging Connecticut’s funding of pregnancy expenses but not abortions for indigent women,167 and Harris v. McRae, challenging similar federal funding restrictions in the Medicaid program168—have been interpreted as paradigmatic unconstitutional-conditions cases that shed light on a germaneness requirement for a condition to be constitutional.169 Rust v. Sullivan, which held that restrictions on federal funding for abortion counseling did not violate individuals’ abortion rights because the restrictions did not change women’s available choices, also used unconstitutional-conditions reasoning.170 More recently, the Seventh and Eighth Circuits have applied unconstitutional-conditions reasoning to determine whether abortion rights were impermissibly burdened.171 The benefit involved in these cases, selective funding, is different from that at stake in the context of border checkpoints and H.B. 2. But the cases demonstrate that for the right at issue—abortion—application of the unconstitutional-conditions doctrine is not unusual.172

B. The Benefit

More significantly, both case law and much of the academic literature consistently describe the forbidden choice in an unconstitutional-conditions problem as one between a right and a “discretionary benefit.”173 Is nonexposure to spatially selective immigration enforcement a “discretionary benefit,” within the meaning of unconstitutional-conditions doctrine?174 It is—or, at the least, we ought to recognize it as such. The doctrine is unclear, and there appears to have been no case implicating the border checkpoints in which courts have applied unconstitutional-conditions analysis.175 But the best interpretation, most consonant with the purposes that underlie unconstitutional-conditions doctrine, is to view it as such. In a way, such extension would be novel—but it both is consistent with case law and makes sense in light of the constitutional common-law nature of the doctrine.176

Most case law deals with situations involving governmental withholding of affirmative benefits due to exercise of a right, rather than governmental withholding of enforcement or punishment.177 Some cases, however, indicate that the denial of withholding of enforcement qualifies as a “benefit.” At least two Supreme Court opinions have appeared to apply unconstitutional-conditions doctrine in an enforcement or punishment context, though neither explicitly situates itself within the doctrine. Zablocki v. Redhail overturned a state statute requiring court approval of marriage for those required to pay child support on the grounds that the statute “unnecessarily impinge[d] on the right to marry”;178 United States v. Jackson overturned the portion of the Federal Kidnapping Act that took the death penalty off the table only if the defendant forewent exercising the right to a jury trial.179

This case law and, more broadly speaking, the common-law nature of the doctrine’s elaboration counsel against an overly restrictive interpretation of cases’ “discretionary benefit” language. Unconstitutional-conditions doctrine has developed over time as a judicial understanding of a particular way that governmental action may engender a harm rising to the level of a constitutional violation.180 And, while academic commentators have diverged over the underlying logic of the unconstitutional-conditions doctrine,181 recent moves toward more coherent and systematizing understandings of the doctrine as one of framing suggests such a broader scope for “benefit.”182 Indeed, some scholars view the doctrine as, on a best understanding, encompassing discretionary enforcement decisions.183

Interpreting the avoidance of a certain encounter with immigration enforcement as a discretionary benefit therefore fits well within the contours of existing unconstitutional-conditions doctrine. It also makes sense in terms of the harm that courts describe unconstitutional-conditions doctrine as intending to capture—the pressure that an individual experiences to make a particular choice, given the incentive structure set up by the choice architecture.184

C. Conditioning

In a situation like that engendered by H.B. 2, then, where governmental action forecloses access to rights within the border zone, an individual faces a choice between exercise of the right and avoiding spatially selective immigration enforcement—the kind of “Hobson’s choice” that courts have deemed impermissible.185 Under the legal regime created by the current intersection of federal immigration enforcement and state law—both of which have spatially distortive effects—a person may either refrain from passing through border checkpoints and therefore refrain from undergoing a search that exposes her to the risk of selective immigration enforcement, or she may obtain an abortion. She cannot do both.

Consequently, the intersection of border checkpoints and fundamental rights falls squarely on the nongermaneness side of the germaneness or nexus requirement running through the case law. Case law indicates that, for a condition placed upon a right to be constitutionally permissible, there must be some sort of “nexus” and “rough proportionality” between the condition and the right.186 For example, in the exactions context, a court must determine whether there is a connection “between the legitimate state interest and the permit condition” and then “must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”187 Relying on this test, the Supreme Court determined in Dolan v. City of Tigard that requiring the grant of a pedestrian and bike easement in order to obtain a permit for commercial expansion did not exhibit the requisite rough proportionality.188

The distinction between germaneness and nongermaneness is particularly vivid in the abortion-funding cases Maher v. Roe189and Harris v. McRae.190In these cases, the Supreme Court upheld funding restrictions in which government-subsidized healthcare programs recompensed individuals for pregnancy and childbirth expenses but not for elective abortions.191 The Court in Maher characterized the statute at issue as creating no further obstacles to abortion, explaining that “[a]n indigent woman . . . continues as before to be dependent on private sources.”192 It differentiated cases striking down durational-residency requirements to receive welfare benefits on, apparently, germaneness grounds: denial of “bus fares” to travelers, the Court implied, would have been permissible, but denial of welfare was closer to “a criminal fine.”193 Similarly, Harris emphasized that the denial of general benefits to anyone who secured an abortion would create a “substantial constitutional question.”194 These cases—and the manner in which they differentiate the durational-residency cases—indicate that something akin to the “nexus” and “rough proportionality” requirements in the Takings Clause cases applies, as well, in the abortion-rights context. While they do not use that specific language, the underlying requirement of a sufficiently strong connection between the right conditioned and the benefit appears to be the same. More broadly, the cases suggest—particularly in combination with the later Takings Clause cases—that the unconstitutional conditions doctrinal inquiry keys, at least in part, to germaneness.195

There is no nexus between the enforcement of immigration law and the seeking of access to abortion services. Unlike in the selective-funding cases, state-generated closure of clinics within the border zone leads to consequences beyond state “refusal to subsidize certain protected conduct.”196 Abortion access and immigration enforcement are not linked by a common policy concern. The consequences if one exercises the right are simply not germane.

There is also a lack of proportionality between the exercise of abortion rights and the enforcement of immigration law. The idea that conditioning the right to abortion on hazarding detention and deportation unconstitutionally “coerc[es]” undocumented women “into giving . . . up” a substantive due process right is intuitive.197 Both the magnitude and the perceived likelihood of the harms of detention and deportation are great.198 Requiring individuals, for the exercise of the right, to risk the loss of home, community, and potentially family and livelihood—potentially “all that makes life worth living”199—seems more analogous to the “criminal fine” that the Maher Court suggested was impermissible.200 These costs are greater than others that the Court has found unconstitutional, such as requiring that individuals give up a tax exemption,201 public employment,202 or the possibility of unemployment benefits to exercise a fundamental right.203 A state actor could not directly impose a bar on an unauthorized immigrant’s access to abortion, since doing so would be a violation of substantive due process rights.204 The current choice architecture conditions exercise of a constitutional substantive due process right on the denial of something of great value—not having the government assuredly perform a search to detect one’s immigration status, a search that is likely to lead to civil enforcement of the immigration laws.205 Such a state-structured choice, if the absence of selective enforcement is a benefit, is an unconstitutional conditioning of a person’s right to terminate her pregnancy.

D. Intentionality?

The choice created for undocumented immigrants by the checkpoints and potential clinic closures thus fits relatively comfortably within unconstitutional-conditions doctrine, given the existing doctrinal ambiguities and the open question as to this kind of administrative enforcement discretion as benefit. Most if not all unconstitutional-conditions cases, though, involve both a benefit and a rights burden engendered by a single state actor.206 Here, the federal administrative enforcement scheme provides the benefit, while the state’s regulation places the burden on the right. Does a choice between rights exercise and benefit brought about by the separate actions of two different actors—one state and one federal—create an unconstitutional condition? This question implicates whether unconstitutional-conditions doctrine bars a coercive purpose or a coercive effect—an area of the doctrine that is unclear. If the doctrine is effects oriented, then H.B. 2 is an unconstitutional condition. Even if it is purpose oriented, though, there are reasons to think that on either analysis H.B. 2’s conditioning is constitutionally problematic, due to the Texas legislature’s knowledge of the border area.

In analyzing governmental actions through an unconstitutional-conditions lens, courts have not clearly distinguished between a coercive purpose and a coercive effect.207 This lack of clarity matters to situations with multiple actors, like the border zone and H.B. 2. On the one hand, without purpose, the choice that individuals face is no less rights pressuring—it presumably does not matter to one’s decision as to whether to go through an immigration checkpoint or forgo obtaining an abortion which governmental entities are responsible for creating the choice. On the other, if the point of the unconstitutional-conditions doctrine is to bar governmental actors from threatening or coercing individuals—from tilting incentives in a way that the government prefers, because of the asymmetrical power to grant or deny a benefit that the governmental actor holds—then perhaps the presence of multiple actors does matter.

This unresolved tension is on display in Koontz. In one sentence, Justice Alito’s majority opinion explains, “By conditioning a building permit on the owner’s deeding over a public right-of-way . . . the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation.”208 The emphasis here seems to be on what the opinion then characterizes as “the government’s demand”209—on a governmental action. At the end of that paragraph, though, the opinion concludes, “Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.”210 This concluding sentence places the emphasis not on the act of demanding or some sort of mens rea requirement—not on governmental purpose—but rather on the loss of just compensation.211 The tension is, perhaps, best encapsulated in Koontz’s characterization of the “overarching principle”: “the unconstitutional conditions doctrine . . . vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.”212

Whether such “coerci[on]” requires governmental intentionality is not resolved in the constitutional common law of unconstitutional-conditions doctrine. The Supreme Court’s unconstitutional-conditions cases appear not to have explicitly confronted the issue. Language in lower-court opinions diverges—some seem to place some emphasis on “purpose,” while others do not require purpose.213 The opinions in both Supreme Court and lower-court cases tend not to probe legislative history to discern bad motive or otherwise engage in some sort of familiar motive-based inquiry. Many cases focus on the situation created for individuals, from needing to give up a right to just compensation in exchange for a land-use permit, to being required to engage in certain speech to receive money, to having to forgo unemployment benefits due to practicing one’s religion.214 Among academic commentators, some view the intent of the state actor as essential—as the constitutional problem with unconstitutional conditions.215 Others see intent as not required for a rights-pressuring choice to be an unconstitutional condition.216

Due to the doctrinal ambiguities and the lack of a specific textual grounding for this multipurpose doctrine, whether one thinks intent matters in unconstitutional-conditions doctrine may ultimately hinge on whether one views the doctrine as rights regarding or regulatory. If the purpose is to shield the individual from governmental choice, then governmental intent may not matter, while a purpose of barring governmental actions with bad intent may make intent more salient.217 The lack of focus on governmental purpose or mens rea in case law may point to an existing understanding of the doctrine as rights regarding. The coercion language, though, is less clear. The idea that a pressured choice forced on an individual by a governmental actor—regardless of the actor’s motivation—creates an impermissible constitutional burden on a right may have intuitive resonance. It parallels duress doctrine in contract law.218 Particularly, where liberty is at stake as the “benefit,” as in the detention and deportation context, the conditioned choice may seem especially constitutionally suspect: the effects of the choice are likely far more pronounced. There are very good reasons to think that intent does not matter;219 and if it does not, then H.B. 2 and the border checkpoints create an unconstitutional condition.

Even if intent does matter, though, state actors’ disregard for the spatially disparate effects of H.B. 2 could conceivably cross a requisite level of intent. The line for a governmental actor’s improper mens rea in creating coercive conditions may not necessarily cut through specific intent to deprive individuals of the right. Texas legislators are—or at least ought to be—well aware of the conditions in their state, including the conditions in the Rio Grande Valley, the many unauthorized immigrants who live there, and the existence of border checkpoints.220 Media coverage surrounding undocumented women and access to abortion began before the passage of H.B. 2.221 The debate over H.B. 2 focused in part on the particular challenges that the bill would pose to individuals living in the Rio Grande Valley and El Paso in reaching clinics.222 If knowledge or recklessness, not purpose or specific intent to deprive, suffices for intentionality in the unconstitutional-conditions context,223 then H.B. 2—and other regulations with spatially disparate effects—crosses that threshold. Because of the lack of doctrinal clarity, under a view of the doctrine as regulatory or intent based, states’ reckless or knowing actions with effects on undocumented immigrants’ choices in the border zone may satisfy intent and give rise to an unconstitutional condition. On an effects-based view, of course, no such intentionality is required—and the choice between exercising the right to an abortion and avoiding exposure to immigration enforcement is an unconstitutional condition.


Viewing spatially selective immigration enforcement as an unconstitutional-conditions problem—not only in the H.B. 2 context but more broadly—comports with the underlying “nexus” or “germaneness” thread running through the doctrine and concomitant intuitions as to which government-structured choice architectures for rights are permissible. One’s immigration status and the exercise of one’s right to determine whether to carry a pregnancy to term are unrelated.

This characterization of the problem, while apparently novel in the immigration-enforcement context, also sounds in constitutional norms of due process and an underlying anticaste principle.224 In considering the problem from a due-process perspective, it is possible that deprivation of an unrelated fundamental right is the penalty that one pays for an immigration violation, for a tax penalty, or for punishment for the commission of a crime. But, even assuming that is the case,225 such deprivation should be due after the government has determined that an individual is culpable, not before. The group of people who will be ensnared through exposure to civil or criminal law enforcement is larger than the group of people who will be eligible for deportation, who will be guilty of the crime, or who will need to pay income taxes—the list of potential “suspects” is almost always longer than the list of those actually convicted or liable. In the immigration context, individuals who are eligible for asylum may not be aware of the prevailing law or may not have the resources to go through the legal process; those eligible for withholding of removal may not want to risk exposing themselves to immigration enforcement for the chance of receiving this discretionary relief.226 These persons are in fact able to obtain status and remain in the United States, but they too will be swept up in the enforcement and will need to extricate themselves, losing their liberty in the meantime.

From an antisubordination perspective, as Kathleen Sullivan observes in the context of affirmative benefits,227 allowing the conditioning of fundamental rights on exposure to an enforcement mechanism creates a two-tiered system of rights, in which only those subject to enforcement face the coercive pressure. Because undocumented immigrants not only have, as a class, less political power than those with legal status, but also face potential enforcement consequences by asserting political voice, they are, as a class, particularly at risk for the creation of impermissible choices.228 The unconstitutional-conditions framework does not doctrinally require either of these underlying resonances, but they provide a sense that the doctrinal evaluation of the border-checkpoints problem fits with the larger constitutional system. The checkpoints and state legislation careless to its spatial effects, when they combine to pressure individual rights in the border zone, are best understood as constitutionally impermissible.

IV. causation at checkpoints

Finally, part of the puzzle as to whether H.B. 2—or any spatially disparate state regulation that removes access to a fundamental right from within the border zone—violates undocumented immigrants’ rights is a question of causation, which in turn implicates federalism questions. The bar to rights vindication is the conjunction of state regulatory action and a federal administrative enforcement scheme, predicated on spatiality, that problematizes travel for individuals subject to enforcement. For purposes of constitutional analysis, is a deprivation of the right to reproductive choice caused by Texas’s law leading to clinic closures? The Fourteenth Amendment provides that no state “shall . . . deprive any person of life, liberty, or property, without due process of law.”229 But do the Texas abortion restrictions themselves “deprive any person” of the right to reproductive choice—given that, in the absence of the checkpoints, the closure of clinics requiring travel out of the border zone could230 pose no barrier at all?

This Part argues that when a state passes a law, like H.B. 2, that removes access to a right within its borders from the area between the international border and the checkpoints, the state is legally responsible for that rights deprivation. This legal responsibility exists notwithstanding the federal government’s actions in creating the anomalous zone and the lack of immigration status that places individuals at risk of enforcement action. Both the doctrinal-causation principles applied in evaluating Fourteenth Amendment violations and larger constitutional commitments—to the vindication of individual rights notwithstanding federal-state allocations of power—lead to this conclusion.

A. Doctrinal Causation

The Fourteenth Amendment and 42 U.S.C. § 1983 together create a “species of tort liability” for those “deprived of rights,” as well as the possibility of injunctive relief against state action.231 In this context, to determine whether there is sufficient causation to constitute a “depriv[ation]” of rights, courts are “governed by . . . common-law tort principles,”232 including proximate cause233 and the idea of a causal chain.234 Consequently, a state’s action that removes access to rights in the border zone must be both a factual and a proximate cause of the resultant harm in order to constitute a substantive due process violation, and there must be no superseding cause that breaks the causal chain.235

H.B. 2 is plainly a factual cause of the resultant harm—the infringement on the abortion rights of a particular segment of Texas’s population.236 Were H.B. 2 not to take full effect, women living in south Texas would still have access to abortion clinics within the border zone; they would not need to travel beyond the checkpoints. The legislation is also a proximate cause.237 As in situations in which the Supreme Court has found sufficient proximate cause for constitutional liability,238 the encumbrance on undocumented women’s reproductive rights is a “natural consequence[]” of Texas’s action in enacting H.B. 2.239 As noted above, the state legislature was aware both that the checkpoints existed and that the legislation threatened to close the clinics south and west of the checkpoints.240 The potential for clinic closures to ensue from H.B. 2 and the resultant inability of undocumented women to continue to access abortion services were “reasonably foreseeable,” in the language of tort law.241

The sharper (and more interesting) doctrinal question is whether the two other factual causes of the rights violation—the federal immigration enforcement scheme and individuals’ immigration status—break the causal chain. Were there no border checkpoints, H.B. 2 would cause no particular infringement on the abortion rights of unauthorized immigrants. And if undocumented immigrants instead had lawful immigration status, the interior checkpoints would give rise to no particular undue burden or unconstitutional condition. Ultimately, both on a technical causation analysis and—as Section IV.B argues—consistent with constitutional allocations of power, neither suffices to overcome state legal responsibility for the deprivation of the right. The State of Texas, or any state with internal checkpoints, is responsible for substantive due process violations due to actions that remove access to rights in the border zone.242

Under common-law tort analysis, intervening acts by independent actors typically do not foreclose tort liability where those actions were foreseeable.243 The Supreme Court has previously followed such common-law interpretations of the significance of actions by independent state actors that potentially break the causal chain.244 It has determined that where “the common law recognized the causal link . . . we read § 1983 as recognizing the same causal link.”245 Internal immigration checkpoints are foreseeable to legislators in states that contain them. Indeed, the checkpoints have existed in some form for decades—their presence is not a surprise.246 Moreover, the effects of the checkpoints on movements of persons are well known in the areas where they exist.247 Additionally, the presence of significant numbers of undocumented immigrants in the border area is easily anticipatable from history and present demographics.248 The harm of certain persons in the border zone being deprived of the ability to obtain abortions is a foreseeable risk of passing a bill that closes clinics in the border zone—and so the foreseeable actions of the federal government in maintaining spatially selective immigration enforcement do not remove legal responsibility from the State of Texas for the deprivation of rights.

Nor does the nature of immigration status obviate the rights violation engendered by cutting off access to abortion within the border area. A potential objection to seeing H.B. 2 as causal in this context might be, essentially, a contributory-negligence argument. Sure, one might argue, unauthorized immigrants might have substantive due process rights—but, the objection might run, they are responsible for their presence in the border zone. Consequently, any spatially uneven effects of state regulation—anything that removes rights access from the border zone—is not a constitutional problem, because the salient cause of the rights violation is not the legislation but the action or presence of undocumented persons.

This argument fails both doctrinally, as a matter of common-law causation, and constitutionally, in light of existing substantive due process doctrine. Doctrinally, in the move from contributory negligence to comparative fault in tort law, the plaintiff’s own actions are typically no longer regarded as an intervening cause sufficient to break a causal chain and give rise to liability.249 Instead, the plaintiff’s actions are ordinarily regarded as part of the causal set and evaluated accordingly.250 As with other potential superseding causes, the actions will not foreclose liability (in this instance, liability on the part of the State of Texas) due to “risks that made the actor’s conduct tortious.”251 Again, the presence of undocumented immigrants in the border area is foreseeable.252 Constitutionally, to the extent that this interpretation is predicated in a sense of moral or legal delict, it does not mesh with substantive due process doctrine any more than it does with common-law doctrine. It makes little sense to construe substantive due process doctrine as encompassing undocumented immigrants,253 but then to exclude certain undocumented immigrants from substantive due process protections, based on where in the United States—and in which part of a particular state—they happened to reside.

B. Individual Rights: Federalism’s Failure?

The border zone represents the failure of federal-state allocations of power alone to protect or further individual rights. In Bond v. United States, Justice Kennedy wrote for a unanimous Court, “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”254 The opinion theorized federalism as rights protecting for individuals, both through this diffusion of power and in the fueling of state innovation and responsiveness to individual voice.255 Federalism scholars have viewed the LGBT marriage-equality movement as exemplifying this kind of rights-protecting function of federal-state allocations of power. Heather Gerken sees marriage equality as an instantiation of how “[f]ederalism and rights have long served as interlocking gears moving us forward.”256 Ernest Young describes how exit and voice in the federal system furthered the interests of same-sex couples and fueled the LGBT-rights movement, because people were able to move to jurisdictions where advocates had exercised power to enact marriage equality locally.257 Under this version of the story, Albert Hirschman’s familiar framework258 indicates—in one way or another259—how federalism may provide safeguards for minority rights.

These posited means for the federal system to protect the rights of particularly vulnerable individuals break down, though, for undocumented immigrants in the border zone. First, the combination of a federal administrative enforcement scheme and unrelated state regulation here does not create the diffusion of power preventing “government act[ion] in excess of . . . lawful powers” described in Bond.260 Instead, in order for federalism to safeguard individual rights in this context, increased state attention to the effects of federal exercise of power—and action in accordance with that attention—is necessary. H.B. 2 demonstrates how the diffusion of power between the federal and state governments may cause the rights of an especially vulnerable minority group to fall through the political cracks.

Second, functionally, both exit and voice are greatly restricted for undocumented immigrants in this space—these individuals are limited in both political participation and movement. The posited consumer protections of federalism—shopping for the locale that maximizes utility261—are unavailable due to the restrictions on movement created by the checkpoints. Politically, undocumented persons cannot vote, and speaking out risks exposing one’s immigration status.262 As a result, any “democratic churn” is unlikely to be availing for this particular minority group.263

Yet, the area between the internal checkpoints and the international border is also within both the United States and a particular state. And the Fourteenth Amendment is a constitutional commitment to shield all individuals, vis-à-vis state governments, from the deprivation of substantive due process rights.264 The anomalous zone created by the border checkpoints may be an example of “immigration exceptionalism” in the Fourth Amendment context.265 Border checkpoints and roving patrols by Border Patrol agents south of the checkpoint are justified under the Fourth Amendment, the Supreme Court has said, by the “valid public interest” in restricting the “inland movement” of undocumented immigrants.266 There is no congruent justification, though, for deprivation of access to a substantive due process right. First, unlike Fourth Amendment or procedural due process inquiries,267 substantive due process analysis is not a balancing test that gives weight to a governmental interest.268 And even if it were, the abortion right itself is not linked in any way to the checkpoints’ concern with movement into the rest of the country—unlike Fourth Amendment rights.269 Immigration exceptionalism—some sort of idea that the federal governmental interest in creating and maintaining the administrative scheme overshadows the vindication of individual rights—has no doctrinal purchase. It especially does not make sense to read the federal interest as somehow overwhelming in light of the federal government’s continued exercise of discretion in allowing individuals to live for years or decades in the border zone.

By contrast, construing Texas’s action in enacting H.B. 2 as a “depriv[ation]” of undocumented immigrants’ abortion rights is consistent with a federalism that “protects the liberty of the individual from arbitrary power.”270 Understanding state regulatory action that burdens rights access in this physical space as causal, such that it constitutes a “deprivation,” reflects the constitutional guarantee of substantive due process protections notwithstanding state exercises of power embodied in the Fourteenth Amendment. The details of the causation doctrine cohere with constitutional commitments.

This analysis, like the unconstitutional-conditions analysis of rights infringement, extends beyond the specificity of abortion and H.B. 2. One could imagine state regulations that diminish or foreclose access in the border zone to other rights that depend on travel for vindication—particularly contraception, marriage, or access to medical care.271 Individuals report forgoing specialized medical treatment due to fear of exposure to immigration enforcement at checkpoints.272 If California, Arizona, New Mexico, or Texas passed legislation limiting who could dispense contraception, for example—such that the individuals who fulfilled that role in portions of the border area no longer could—a very similar problem would arise. Similarly, imagine a situation in which the only available marriage officiants offered by a state were located beyond the checkpoints. To the extent that other fundamental rights are predicated on spatial access, state actions that remove access in the border zone may pose constitutional problems.


Texas’s restrictions on abortion clinics, if they reach full effect, will impose constitutionally impermissible limitations on access to abortion for undocumented women in the border zone. Under doctrinal analysis specific to substantive due process, they create an undue burden on this group’s right to obtain an abortion—such that the law is invalid as applied to the clinics in the border area. At a greater level of abstraction, they give rise to a constitutionally impermissible choice between vindication of the abortion right and lack of certain exposure to immigration enforcement—impermissibly conditioning a right within the denial of a “benefit,” under a broad construal of that word that is most consistent with the unconstitutional-conditions doctrine and an underlying purpose of preventing rights-pressuring choices. This framework is applicable not only in the abortion context but also to other substantive due process problems engendered by the checkpoints. Using either framework, and irrespective of any other constitutional flaws, H.B. 2 deprives more than eighty thousand spatially and legally marginalized women of the right to decide whether to terminate a pregnancy.

The border zone is a site of overlapping sovereigns’ regulatory actions—of federal immigration enforcement efforts and of state regulation pursuant to state-level legislative goals. The pressure that the independent exercise of these powers may place on the substantive due process rights of those caught in the spatial vise of the border zone has not been taken up. Spatially selective immigration enforcement’s cabining of the movements of a certain set of individuals—undocumented immigrants—poses problems for theories of how federal choice may enable rights vindication for marginalized groups. As H.B. 2 demonstrates, federal-state allocations of power in the border space may endanger fundamental rights. The application of unconstitutional-conditions doctrine, in particular, provides a way to think through the constitutional problems posed by that endangerment.

The relationship between spatial access and substantive due process—and, inversely, between barriers to travel and rights burdens—is not unique to the space between internal immigration checkpoints and the border. Abortion cases frequently hinge on travel distances.273 Recent North Carolina legislation permitting state magistrates to decline to marry same-sex couples might lead to similar travel problems burdening the right to marry.274 The Fifth Circuit has struggled with the question of whether and when “a state can[] lean on its sovereign neighbors to provide protection of its citizens’” substantive due process rights;275 may a state ever foreclose all in-state options for abortion, knowing that out-of-state options exist?276 In the extraterritorial context, the Supreme Court has weighed but reached no majority consensus as to whether a citizen has a substantive due process right to live in the United States with a noncitizen spouse.277 The per se bar to undocumented immigrants’ movement out of the border area throws into sharp relief a burden on vindication of substantive due process rights, in the form of barriers to travel, that typically take the form of a sliding scale.

This Note provides a case study of how the spatial immigration enforcement regime created by interior checkpoints may burden fundamental rights. This conclusion indicates that states that border other countries must think carefully about the spatially disparate effects of legislation that may place pressure on rights. More broadly, it demonstrates the need to take into account the spatial nature of substantive due process: the ways in which the exercise of fundamental rights depends in part on political and physical geography.