//  10/2/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. In February 2019, split five to four, the Supreme Court blocked this law from going into effect. That order suggests the Court is likely to grant review. This symposium addresses both the merits of the case and its broader context.

The Supreme Court will soon make a decision about the clinic’s petition for certiorari in June Medical Services v. Gee. In a sane world, the Court would summarily reverse the Fifth Circuit Court of Appeals decision, which upheld a law that is identical to the one the Court invalidated just three years ago in Whole Woman’s Health v. Hellerstedt. Both laws require abortion providers to obtain admitting privileges and hospitals within 30 miles of where they perform abortions.

But are we living in a sane world? The fact that the Court is not likely to summarily reverse the court of appeals decision suggests not. (It is custom that summary reversals require six votes; given that four Justices (Thomas, Alito, Gorsuch, and Kavanaugh) voted not to stay the court of appeals decision, it seems unlikely that they are inclined to summarily reverse it.)

The papers in June Medical also underscore how much reproductive rights and justice have to lose—and to lose quickly—with the current Court. While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions in June Medical would allow states to regulate abortion out of existence.

I have written about this point before, many times (many many many times). But it is worth making again: There are ways the Court can make safe, legal abortions a thing of the past without ever having to issue a decision “overruling” Roe. And June Medical shows how. I’ve briefly outlined below some of the arguments and theories the state is pressing that would eviscerate access to abortion by allowing states to shutter clinics.

Tactic Number One: Argue That Courts Should Not Scrutinize Whether A Law Advances A Valid Purpose.

When Casey announced the undue burden standard, it held that laws that have the “purpose or effect” of imposing a substantial obstacle on women’s decisions to have an abortion constitute an undue burden. Whole Woman’s Health v. Hellerstedt made clear that, in order for the “purpose” part of the undue burden standard to have meaning, courts must actually assess a law’s purpose—and specifically ask whether the law actually furthers its purpose (based on evidence and things called facts). As Justice Breyer explained in Whole Woman’s Health:

The Court of Appeals wrote that a state law is “constitutional if it is reasonably related to (or designed to further) a legitimate state interest.” 790 F. 3d, at 572…. The Court of Appeals’ articulation of the relevant standard is incorrect. [It] is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S.483, 491 (1955).

Requiring laws to be backed up by actual evidence is inconvenient for states who seek to enact laws that would regulate abortion out of existence. So Louisiana has kindly asked the Court to “clarify Hellerstedt .. by holding that a State establishes the ‘benefits’ of a challenged abortion regulation by proving the law rationally services its intended purpose” by relying on “rational basis review.”

That is not clarifying Hellerstedt so much as overturning it, given that Hellerstedt explicitly rejected rational basis review as the appropriate standard for abortion regulations. No matter. The important point here is that applying rational basis review would allow states to enact gratuitous and unnecessary laws that do not advance women’s health and serve no appreciable, valid purpose (unless one considers eliminating access to safe, legal abortion a valid purpose). If the state doesn’t have to prove that a law has health or safety benefits, then states will be able to enact many more abortion restrictions.

Tactic Number Two: Argue Abortion Restrictions Are Valid If They Do Not Eliminate 100% Of Abortion Providers And Clinics.

I’m not overstating that argument. The state’s brief argues that because one abortion provider obtained admitting privileges at one hospital in New Orleans, then the Louisiana law is valid. It doesn’t matter that doctors at other providers couldn’t obtain admitting privileges, including the plaintiff clinic, since that clinic “only serves 30% of the State’s abortion patients.” Under this logic, states could deny licenses to clinics and close all of the clinics they want without creating an undue burden so long as one doctor at one clinic in the state remained open. The state’s alternative formulation of this argument is that “abortion regulations must burden all affected women to be deemed facially invalid.” In other words, so long as some woman somewhere in the state could obtain an abortion, we’re all good.

Obviously, this argument is also inconsistent with Hellerstedt. (There, some clinics remained open—specifically, seven clinics in Texas’s major metropolitan areas. The Court nonetheless held the abortion regulations invalid.)

But here too, the point is the implications of the state’s argument, not whether the state’s argument is consistent with precedent (which it is not). If states could close all the clinics but one and prevent all of the doctors (but maybe one) from providing abortions, then that would also substantially limit access to abortion.

Tactic Number Three: Argue that the Court should overturn any case (except for Roe) that allows challenges to abortion regulations to succeed.

Hellerstedt: Perhaps recognizing that its law would be invalid under Hellerstedt (which, again, invalidated *the exact same fucking law*), the state asks, in the alternative, “If this Court considers review, it should be to clarify or narrow Hellerstedt.” (page 36) Hellerstedt is the decision that said states have to prove their laws further a valid purpose, and that laws shuttering clinics constitute an undue burden. If Hellerstedt is overturned, then states could get away with shuttering all of the clinics in a state, since courts could not assess whether a law actually serves a valid purpose or perhaps even whether a law will diminish abortion access in a state (short of outright criminalizing abortion). Without Hellerstedt, Casey and Roe are practical nullities for many women.

Third Party Standing: Alternatively, the state and its amici ask the Court to revisit the doctrine of “third party” standing in the area of abortion. Third-party standing doctrine maintains that a plaintiff may assert the rights of someone else if (a) there is a special relationship between the plaintiff and the person who holds the relevant right and (b) there is an impediment to the person asserting their own rights. Under another, common conception of third party standing, a plaintiff may challenge a statute (or regulation) that subjects them to adverse consequences and contains an unlawful rule of decision.

In the context of abortion restrictions, third party standing allows doctors who perform abortions or clinics who provide abortions to challenge abortion restrictions. The state and its amici are asking the Court to revisit this rule.

Again, it is not difficult to see how altering that rule would make it easier for states to enforce draconian abortion restrictions. If women who seek abortions are the only possible plaintiffs in cases challenging abortion restrictions, then there might not be a plaintiff to challenge the restrictions before they go into effect. (Since there would need to be a woman (a) who is pregnant (b) who wants an abortion (c) who is willing to be a plaintiff in a case challenging abortion restrictions.) That could mean states enforce the regulations until there is a plaintiff; if states enforce the regulations, then clinics could close (and may not reopen if a subsequent challenge to the regulation is successful). If a woman seeking an abortion is the plaintiff, then that could also narrow the remedy that a court gives in a successful challenge. (Courts might say that a particular plaintiff or similarly situated plaintiffs are not subject to the regulation, versus saying that all doctors who perform abortions or all clinics who provide abortions are not subject to the regulation.)

Large Fraction: The state is also taking aim at another component of Casey’s undue burden standard. Casey held that a law is facially invalid—that is, that the law cannot be enforced in any applications going forward—if the law imposes an undue burden on a “large fraction” of women. Casey also held that, in determining whether the law constitutes an undue burden on a large fraction of women, the denominator is not “all women” or even “all women seeking an abortion.” It is, instead, the women for whom a regulation is relevant—i.e., the women actually burdened by a regulation.

In Casey, recall, the Court held invalid the “spousal notification” requirement, which required women to obtain their spouse’s permission before obtaining an abortion (or receive judicial permission not to). Casey reasoned that the spousal notification requirement made obtaining an abortion too difficult for women in abusive relationships (since they risked abuse by broaching the prospect of an abortion). The state countered that the requirement was not an obstacle for most or even many women (since most women are not in physically abusive relationships). But that didn’t matter, Casey held, because the focus was on women for whom the regulation is relevant.

Here too, the state and its amici are asking the Court to revisit this rule. And again, it is not difficult to see how revisiting that rule would allow states to whittle away at access to abortion. Consider how the analysis sans the large fraction test would work in a case like Hellerstedt or June Medical. In Hellerstedt, the law reduced the number of clinics in the state of Texas from 40+ to 7, all concentrated in Texas’s major metropolitan areas. As a result, hundreds of thousands of women lived more than 150 miles from the closest clinic. Does reducing the number of clinics from 40 to 7 burden a “large fraction” of women? If the state gets to make the denominator include all women, rather than all women seeking an abortion, or all women who do not live in the 7 major metropolitan areas, then the answer is more likely no (or you can imagine a court saying that the answer is no).  Similarly, in June Medical, if the law reduces the number of abortion providers to one (at a clinic in one city), then does the law still burden a “large fraction” of women (again if the state gets to make the denominator include all women, or the women in New Orleans)? Changing that standard makes it easier on the state and harder for challengers. And that is the entire point.

This post is long. But the gist is that the states are using every legal maneuver in the books to stack the deck in their favor when it comes to challenges to abortion restrictions. And they can do that—and eviscerate access to safe, legal abortion—without ever having to ask the Court to “overturn Roe.”


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