//  9/17/19  //  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.

By Alicia Bannon and Jennifer Weiss-Wolf | Brennan Center for Justice

If the facts at issue in June Medical Services, LLC v. Gee sound strikingly familiar – it’s because they are.

Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a Texas law that mandated abortion providers have admitting privileges at a local hospital. Deemed a practical impossibility for many, the requirement forced about half the state’s abortion clinics to close.

Clarifying that such laws must be assessed by balancing “the burdens a law imposes on abortion access together with the benefits those laws confer,” the Supreme Court held that admitting privilege requirements were unconstitutional because they impeded access to abortion without protecting women’s health.

Louisiana’s law is modeled on and virtually identical to the one struck down in Texas. And after a six-day trial, a district court judge made extensive factual findings that, like in Texas, Louisiana’s admitting privileges requirement provided minimal benefit and would “cripple women’s ability to have an abortion.” Among other things, it found that two of the state’s three abortion clinics would be forced to close.

Yet the Fifth Circuit went on to rule that Louisiana’s law meets constitutional muster — a decision that is irreconcilable with Whole Woman’s Health and the factual findings of the district court.

This should have been an easy case. Instead the Fifth Circuit’s decision was a dangerous overreach — and a double affront to the rule of law: from above, as the court inserted itself into fact-finding in a manner inconsistent with its role as an appellate court; and from below, as it wholly disregarded binding Supreme Court precedent.

Both breaches threaten the institutional integrity of the judicial system and risk undermining public trust at a moment when Americans are increasingly skeptical of our government institutions.

On the first breach: It’s a basic principle of appellate review that a district court’s factual findings are reviewed with a deferential “clear error” standard of review, codified in Rule 52 of the Federal Rules of Civil Procedure. This is a division of labor and purpose that dates back to the earliest days of the American legal system. It’s grounded in the unique posture of a district court judge — who is able to hear testimony and assess the credibility and demeanor of witnesses in person, as well as watch an entire case unfold. An appellate judge with a cold record is far less suited to make factual findings; doing so would be a highly inefficient use of judicial resources.

And yet in June Medical Services, the Fifth Circuit dug into the record and effectively retried the case — extracting and relying on drastically different facts than those already determined by the district court. This is perhaps most striking in the Fifth Circuit’s conclusion that most of the plaintiff physicians had not sought to get admissions privileges in good faith, contrary to exhaustive district court factual findings. The district court had monitored the physicians’ applications over the course of the proceedings, including receiving nine status updates over a period of 22 months. It wrote a 116-page opinion with detailed factual findings, including specifics about the “Kafka”-esque application processes that some hospitals impose. From the perspective of institutional competence alone, it’s hard to see how the Fifth Circuit was better situated to gauge the plaintiffs’ good faith.

But well beyond the relative capacities of the trial and appellate court, the Fifth Circuit’s approach in June Medical Services is also clearly at odds with Rule 52, which prescribes a limited appellate role in evaluating facts. A core reason we have procedural rules that apply in every case is to ensure that judges do not let personal biases or other inappropriate considerations impact their approach — and so that litigants and the public can be confident that everyone is getting equal treatment. It’s vitally important for courts’ public legitimacy that every court follow the rules. This is exponentially so in politically charged or publicly polarizing cases. It does great damage to our legal system if it’s the case that “when abortion comes on stage it shadows the role of settled judicial rules,” as Fifth Circuit Judge Higginbotham wrote in dissent.

And on the second breach, the matter of binding Supreme Court precedent: The similarities between June Medical Services and Whole Woman’s Health can’t be overstated. Louisiana’s law is “equivalent in structure, purpose, and effect to the Texas law,” as Judge Higginson wrote in dissent to the denial of en banc rehearing. The Fifth Circuit’s application of Whole Woman’s Health doesn’t fit with any plausible reading of the Supreme Court’s holding.

There are crucial institutional reasons why lower courts must follow Supreme Court precedent. Our legal system relies on consistency and predictability – and one of the principal methods for achieving that is through a hierarchy of courts. Precedent-setting bodies bind lower courts, promoting uniformity. And as the highest court in the land, the Supreme Court’s decisions bind all other federal and state court judges. If every judge, or any court, could upend settled legal questions it would make chaos of our entire system.

Disrespect by lower federal courts for Supreme Court precedent also risks delegitimizing judicial rulings more broadly. Recall that some Southern states embraced the theory of “interposition” to argue that they could disregard Brown v. Board of Education and keep their schools segregated. After the Supreme Court recognized a right to marriage for same-sex couples, Roy Moore, then-chief justice of the Alabama Supreme Court, urged judges to defy the ruling, leading to his suspension from the bench.

And, of course, the elephant in the room: The fraught nominations of Justices Gorsuch and Kavanaugh and their recent tenure on the Supreme Court. The retirement of Justice Kennedy signaled a likely rightward lurch on many issues, including and especially abortion. If anything, this shift in membership makes it all the more important for the Supreme Court to assert its institutional function — and affirm that it’s not open season for lower courts to flout precedent.

In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.

Alicia Bannon is the Managing Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law. Jennifer Weiss-Wolf is a Vice President and the Women & Democracy Fellow at the Brennan Center; she is author of the book Periods Gone Public: Taking a Stand for Menstrual Equity.

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