//  9/11/18  //  Uncategorized

Today ends in a y, which means it’s time for another reminder about how the fate of reproductive health care hangs in the balance!  I do not mean whether Roe v. Wade (or Planned Parenthood v. Casey) are overturned in name, but instead whether access to reproductive health services remains real for many women—poor women, rural women, immigrant women, and women who do not have law degrees from Harvard or Yale and live on the eastern corridor or in California.

Yesterday, the Eighth Circuit Court of Appeals vacated an injunction that had been entered against two Missouri restrictions on abortion—one that requires doctors who perform abortions to obtain admitting privileges at a hospital 15 minutes away from where the doctor performs abortions, and the other that requires facilities that perform abortions to comply with a number of physical layout and design requirements for surgical facilities.    

If those requirements sound familiar that’s because they are!  The first requirement is the same requirement that the Supreme Court invalidated in Whole Woman’s Health v. Hellerstedt.  And the second requirement is pretty darn close to the other requirement the Court also invalidated in Hellerstedt—a requirement that facilities performing abortions comply with physical layout and design requirements that are applicable to ambulatory surgical centers.

Why did the Eighth Circuit believe that Hellerstedt did not control the analysis?  Here were its reasons:

1. As to the ambulatory surgical center requirement, there was no evidence if the clinics could or would obtain a waiver from the requirement, and Hellerstedt said that facts matter.  Apparently that includes facts about whether a clinic could obtain a waiver from a requirement that cannot constitutionally be applied to it.

2. As to the admitting privileges requirement, Hellerstedt said that facts matter and that courts have an independent duty to make factual findings.  Therefore, the district court had an obligation to consider whether Missouri’s more stringent version of the admitting privileges requirement might be okay even if Texas’s was not. (The requirement in Hellerstedt required a doctor to have admitting privileges at a facility less than 30 miles from the facility where abortions are performed; in Missouri, the admitting privileges must be at a facility less than 15 minutes away from where the doctor performs abortions.  Depending where a doctor practices, 15 minutes away could mean 2 miles, or it could mean 10 to 15 miles; either way, it doesn’t really matter for purposes of Hellerstedt’s analysis.)

That reasoning makes nonsense of the Court’s analysis in Hellerstedt.  The ambulatory surgical center reasoning is silly (if a requirement cannot constitutionally be applied to a plaintiff, then a plaintiff is not constitutionally required to seek and obtain a waiver from it), but at least does not misstate what occurred in Hellerstedt.  In Hellerstedt, the plaintiffs had argued, based on Texas’s representations and the relevant rulemaking, that abortion providers were not eligible to obtain waivers from the ambulatory surgical center requirement.  That bit, however, barely factored into the Court’s analysis.  Indeed, it is one sentence in 16 paragraphs of Justice Breyer explaining why states cannot imposing design and layout requirements on abortion providers that resemble those that apply to surgical centers.  But I’m sure isolating that one difference is the best and fairest reading of Hellerstedt, which is what courts of appeals are supposed to be doing!  And it's not like Hellerstedt made clear that courts should consider whether a restriction advances women's health, and that some architectual requirements do no such thing.  More seriously, though, the Eighth Circuit's analysis underscores the following: There are always distinctions between cases, and the Court can always say that distinctions that make no practical difference and that distinctions that should make no legal difference actually do matter, and use that maneuver to undo Roe.  

The Eighth Circuit's analysis of the admitting privileges requirement is even worse.  The court’s reasoning is that “well, Hellerstedt suggested abortion was safe in Texas, but what if it’s not safe in Missouri?? And what if an admitting privileges requirement would keep women safe?”

The problem is (1) that the premise of the former statement is not true, and (2) that Hellerstedt definitively answered that an admitting privileges requirement does not make the procedure safe.

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.  It’s the same drugs!

Hellerstedt also observed that “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States' similar admitting-privileges laws.”  And it cited courts from Wisconsin and Alabama.  Again, not unique to Texas.

As I wrote in Unduly Burdening Women’s Health:

Hellerstedt rejected Texas’s argument that courts could not consider evidence that a plaintiff offered to challenge an abortion restriction; it did not suggest states were free to relitigate Hellerstedt by offering additional evidence for courts to consider in order to uphold restrictions that are materially indistinguishable from the ones the Court invalidated. Moreover, the “record evidence” the Court cited in Hellerstedt concerned the safety of abortion nationwide.

Hellerstedt’s exhortations to consider record evidence were directives for courts not to blindly allow legislatures to enact laws that do not offer any real benefits to women’s health. They were not, as Missouri suggested and the Eighth Circuit now maintains, invitations for states and courts to disagree with the Court’s assessment of the evidence in Hellerstedt.

Not so long ago, another state tried to relitigate another one of the Court’s cases—Citizens United v. FEC, the case that invalidated a federal ban on corporate expenditures in political campaigns.  In the follow on case, Montana attempted to defend a state law that also prohibited corporate expenditures in political campaigns.  The Supreme Court did not have it.  As the Court explained (in American Tradition Partnership v. Bullock):

In Citizens United v. Federal Election Comm'n, 558 U.S, 310 (2010) this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

What’s good for the goose should be good for the gander; the question in Comprehensive Health of Planned Parenthood is whether the holding of Hellerstedt applies to the Missouri state law.  And the answer to that question is yes, or at least it should be. 

To be sure, some members of the Court disagreed with the disposition in Bullock.  In particular, Justice Breyer (joined by Justices Ginsburg, Sotomayor, and Kagan), wrote that they would have denied the corporations’ petition for certiorari (the Montana Supreme Court had upheld the ban on corporate expenditures).  Those Justices refused to accept (or apply) the Court’s analysis in Citizens United, or at least the part of it that reasoned “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”  And Justice Breyer also reasoned in the alternative that, even if he were to accept that part of Citizens United,  “this Court's legal conclusion should not bar the Montana Supreme Court's finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.”

Perhaps that’s the approach the newly reconstituted Court will take with Hellerstedt—allowing states to relitigate factual findings.  Or perhaps the newly reconstituted Court will just overrule Hellerstedt (hey it was just decided a few terms ago, amirite?).  Or perhaps they will just deny certiorari in cases where the courts of appeals read Hellerstedt to mean nothing at all outside of Texas.  The point is that it’s farcical to pretend that that might not happen, and Susan Collins and Lisa Murkowski are in a position to do something about it.  The threat to Roe and Casey is real. They could be overruled or they could disappear because of a thousand cuts, and “how the Court overturns Roe will not make much of a difference to the women who cannot pay their way around restrictive abortion laws.” Allowing states to enact the restrictions the Supreme Court invalidated just two years ago in Hellerstedt would be a significant blow to women’s access to reproductive health services, and to Roe and Casey. But it would not be and it will not be the last one. 

Everyone (including Susan Collins and Lisa Murkowski) should read and listen to Melissa Murray’s testimony on these points, and read Michelle Goldberg’s article that has another take as well.

@LeahLitman


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