//  1/29/19  //  In-Depth Analysis

Yesterday, the plaintiffs in June Medical v. Gee asked the Supreme Court to put on hold a decision of the Fifth Circuit that allowed a Louisiana law restricting abortion providers to go into effect. The Fifth Circuit decision -- and how the Supreme Court responds to it -- will give people a very good sense about how the modified Court will effectively gut Roe v. Wade and Planned Parenthood v. Casey. If the Court does not stay the Fifth Circuit decision, which upheld a requirement identical to the one the Supreme Court invalidated in Whole Woman's Health v. Hellerstedt just two years ago, it will be a really good sign that the modified Court will not police states or lower courts' compliance with Casey and Whole Woman's Health. And the decision itself shows how the Court will do so --by distinguishing away any decision favorable to reproductive justice, and refusing to meaningfully scrutinize any law that affects abortion access or abortion providers.

[Warning this is a very long post!]

On January 18, the U.S. Court of Appeals for the Fifth Circuit decided to leave in place a decision by three members of that court that let stand a Louisiana law regulating abortion providers.  The Louisiana law required abortion providers to have admitting privileges at a hospital within 30 miles of where the providers perform abortion. Just two and a half years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated an identical Texas law that also required abortion providers to have admitting privileges at a hospital within 30 miles of where they perform abortions.  The restriction was unconstitutional, the Court concluded in Whole Woman’s Health, because there was no evidence that an admitting privileges requirement had helped, or would help, any woman ever.  The Court also noted that the law would result in the closure of clinics.  Given the lack of benefits--and accompanying burdens--the Court declared the admitting privileges requirement an undue burden.

The Fifth Circuit has apparently decided the Court was mistaken, but masked that decision in an opinion rife with specious distinctions.  And the decision leaving the Louisiana regulation on the books is the latest symbol of how Roe and Casey can be gutted without the Supreme Court ever having to explicitly overturn Roe or Casey.  All it has to do is leave in place decisions like the Fifth Circuit. The Fifth Circuit’s decision underscores that courts could purport to apply the undue burden standard while allowing states to get away with enacting laws that have no benefit to women’s health and will substantially reduce--if not entirely eliminate--the number of abortion providers in the state, thereby effectively eliminating access to safe abortions for women without the resources and ability to travel.

After Justice Kennedy retired, I wrote the following:

[W]hat would it mean to “overturn” Roe?  A decision overturning Roe could come in one of two forms.  One would be for the Court to say that the decision to end a pregnancy is not a fundamental right, and that Roe was wrong to recognize it as one.  But there are other ways to overturn Roe as well.

A modified Court could overturn Roe by purporting to apply the formal legal standard that governs abortion restrictions—the undue burden standard—while emptying that standard of any meaning by upholding every abortion restriction that came before the Court.  How would that work? The law on fundamental rights works like this: If a law burdens (more than incidentally) a fundamental right, the law is subject to “strict scrutiny.” If a law burdens something that isn’t a fundamental right, the law is subject to “rational basis review.”  As any student of constitutional law can tell you, the standard of review matters and in some cases may be outcome determinative. Strict scrutiny is the most demanding standard: Under strict scrutiny, a law is valid only if it furthers a compelling purpose and is narrowly tailored to further that purpose.  Rational basis review is the least demanding standard: Under rational basis review, a law is valid if a court can dream up a legitimate purpose the law might be thought to serve, and a reasonable legislature might reasonably think that the law furthers that purpose.

Two terms ago in Whole Woman’s Health v. Hellerstedt, the Court again reaffirmed that the “undue burden” standard is more demanding than rational basis review, and requires a state to establish that a law actually furthers its stated purposes.  In other words, it is not enough, as it would be under rational basis review, for reasonable legislators to merely think that the law might further its purpose.

A modified Court could “overturn” Roe by reciting Casey’s “undue burden” standard and purporting to apply that standard, while actually applying something that more closely resembles rational basis review.  How would that “overturn” Roe?  [W]hen a court applies rational basis review, the law being challenged will almost always be upheld.  It’s easier to imagine how a law might be thought to further a valid purpose than it is to demonstrate that it actually does so.

To see that part of the standard of review in action, consider Whole Woman’s Health.  Whole Woman’s Health addressed Texas’s requirement that physicians performing abortions have “admitting privileges” at hospitals within 30 miles of facilities where they perform abortions.  Texas maintained that the requirement furthered women’s health. At oral argument, Justice Breyer asked the Solicitor General of Texas if there was any evidence that the requirement did so—that is, was there any evidence that a woman had been harmed because her doctor did not personally have admitting privileges at a local hospital?  The answer, of course, was no. And because the Court was not applying rational basis review, that meant the state had failed to prove that its requirement actually advanced the purported valid purpose of the law, improving women’s health outcomes.  But if the court had applied rational basis review, that lack of evidence would have been almost irrelevant—states don’t have to put in evidence, under rational basis review, to establish that their laws actually further purportedly valid purposes.

Now how did the Fifth Circuit conclude that Louisiana admitting privileges requirement was valid while purporting to apply the undue burden standard? The court said:

Texas presented no evidence that the credentialing function performed by hospitals differed from the credentialing performed by clinics. The record for Louisiana contains testimony from abortion providers themselves, explaining that the hospitals perform more rigorous and intense background checks than do the clinics. The record shows that clinics, beyond ensuring that the provider has a current medical license, do not appear to undertake any review of a provider’s competency. The clinics, unlike hospitals, do not even appear to perform criminal background checks. Finally, Louisiana explains that the Act brings the requirements regarding outpatient abortion clinics into conformity with the preexisting requirement that physicians at ambulatory surgical centers (“ASCs”) must have privileges at a hospital within the community.

Note what this passage does not do--it does not show that any woman would be helped by an admitting privileges requirement! Whole Woman's Health did not focus on clinic's credentialing requirements--it focused on the safety of abortion and the various reasons why the doctor performing an abortion need not personally have admitting privileges (few patients are admitted; when they might need to be admitted, it is not immediately after the procedure or near the clinic, but later when they are home; etc.). And the fact that Louisiana’s admitting privileges requirement would bring abortion providers into compliance with the requirements applicable to ambulatory surgical centers does not make the admitting privileges requirement any *more* constitutional.  Indeed, it might make it less so: Hellerstedt invalidated a Texas regulation that purported to require abortion providers to meet the requirements applicable to ambulatory surgical centers. As the Court noted, abortions are not surgeries, and therefore the requirements applicable to surgery centers do not have the same benefits when applied to abortion providers.

In a footnote, the Fifth Circuit seemed to recognize that it didn’t actually have any of the relevant kind of evidence--namely, evidence that an admitting privileges requirement would actually improve the health and safety of women seeking abortions. The Fifth Circuit explained:

[T]hough Texas could not point to any instance in which admitting privileges would prove useful, Louisiana presents evidence of several situations in which women required direct hospitalization. At least three of those involved Doe 3’s acting as the admitting and treating physician. But there is no testimony or evidence indicating that, had Doe 3 not been available, the women’s health would have suffered. Most complications occur well after the surgery. Consequently, a woman living outside the thirty-mile radius who must go to a more rural hospital, in the event of an emergency arising after leaving the clinic, would not be helped by the admitting-privileges requirement. A woman living inside that radius would already be transported to a hospital with the relevant specialist. Moreover, the state did not provide any instance in which a worse result occurred because the patient’s abortion doctor did not possess admitting privileges. Thus, in balancing, we do not credit these proposed benefits.

In other words, it still didn’t have any of the relevant kind of evidence.

In that same (long!) Take Care post, I also noted other ways that courts could dilute the undue burden standard, such as by increasing the threshold for the kind of effect required to establish an undue burden. As I wrote:

A modified Supreme Court could dilute the undue burden standard into rational basis review another way—namely, by never finding that a law has the “effect” of creating a “substantial obstacle” to a woman’s decision to end her pregnancy.  Again, you don’t have to look any further than Whole Woman’s Health to see how that might work.  In Whole Woman’s Health, the challenged Texas law reduced the number of clinics from 40 to 7, all of which would have been located in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region.  The law would have meant that:

2 million women of reproductive age w[ould] live more than 50 miles from an abortion provider; 1.3 million w[ould] live more than 100 miles from an abortion provider; 900,000 w[ould] live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider.

The 5th Circuit Court of Appeals looked at those numbers and concluded there was no undue burden—that a law with those effects did not have the “effect” of imposing a “substantial obstacle” on women who decide to end a pregnancy.   (With one small exception—the 5th Circuit concluded that the one closure that resulted in a significant number of women living more than 200 miles from an abortion provider was an undue burden, and allowed one doctor to continue seeing patients at one clinic.)  The court of appeals, in other words, concluded that a law does not have the “effect” of imposing a “substantial obstacle” on women seeking abortions so long as most women still live at least 150 miles from an abortion provider.

That’s ludicrous of course—some states are smaller than 150 square miles, so that standard would have allowed some states to shutter all of the clinics in state.  It also defies common sense to think that it’s not a “substantial obstacle” to travel several hours each way, several times (to obtain all of the required consultations and information blasts) to obtain a medical procedure.  What about work, leave policy, family obligations, socioeconomic circumstances … the list goes on and on. Not every employer may have the requisite medical leave; not all employers have the work flexibility to allow for the required leave; not all women have easy access to transportation; etc., etc.

Here is how Fifth Circuit distinguished the Louisiana admitting privileges requirement from the Texas admitting privileges requirement that the Court struck down:

  • “In Louisiana, however, the cessation of one doctor’s practice will affect, at most, only 30% of women, [unlike in Texas, where it affected all of women].”  (As the Court noted, “At the time of enactment, only five abortion clinics operated in Louisiana, and only six doctors performed elective abortions, of whom only one had qualifying admitting privileges.”)
  • The Court’s analysis in Hellerstedt was “fact-bound.”
  • “[E]verything turns on whether the privileges requirement actually would prevent doctors from practicing in Louisiana. If that domino does not fall, no other burdens result. “ 

 As I wrote in another post on a recent Eighth Circuit decision that played fast and loose with Whole Woman’s Health v. Hellerstedt:

 Here is the evidence that Hellerstedt relied on to conclude that abortion was safe (without admitting privileges requirements):

  • A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including those complications requiring hospital admission—was less than one-quarter of 1%.
  • Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1%
  • Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266–267 (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion).
  • Expert testimony stating that “it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization” and “in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.”
  • Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of these complications occur in the days after the abortion, not on the spot.
  • Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as “abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.”
  • Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home.

You will note that some of this evidence is specifically *not* about Texas, and that much of the evidence is definitely not unique to Texas—medical abortions do not work one way in Texas and another way in Missouri [or Louisiana].  

Yes the Court’s analysis in Whole Woman’s Health was fact bound-- specifically, it was bound up in all of the facts that show abortion is safe and that admitting privileges requirements are not necessary or helpful to making it safer.  And that's all the more true given that an admitting privileges requirement offers no benefit to women’s health.  As Whole Woman’s Health recognized, the undue burden standard creates a balancing test.  It does not require that the burden, in all cases, resemble the burden in Texas--especially states that are much geographically smaller than Texas, where it would be impossible to mimic the same results as far as the number of women living more than 150 or 200 miles from a clinic.  Yet courts are saying that it does, and by doing so, they are practically overruling Roe and Casey without having to formally do so.  The Louisiana law would allow *one* doctor to continue performing abortions at *one* clinic in the state--in the name of a law that offers no benefit to the health and safety of women.  If the Supreme Court does nothing about that, that tells you all you need to know about the Court's new approach to abortion restrictions.   

@LeahLitman


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