//  2/25/20  //  Commentary

This post is by Andrew Beck, a Senior Staff Attorney with the ACLU’s Reproductive Freedom Project. It is the second post in our June Medical symposium. 

This summer, the Supreme Court will issue its decision in June Medical Services v. Russo, a case brought by the Center for Reproductive Rights.  With the Court set to decide its first major abortion case since the confirmation of Justices Gorsuch and Kavanaugh, the question on the minds of many is whether the Court will overrule Roe v. WadePlanned Parenthood v. Casey, and/or Whole Woman’s Health v. Hellerstedt.  But as others have pointed out, focusing exclusively on that disturbing prospect risks overlooking an outcome that is both likelier and more insidious—a ruling that would quietly strip the abortion right of any vitality without generating the same type of attention-grabbing, election-year headlines.   

June Medical presents a real danger that the Court could render it impossible to access abortion without purporting to overturn RoeCasey, or Whole Woman’s Health, making abortion a right that exists on paper but not in practice for real people actually seeking that care. Indeed, that is exactly what the Fifth Circuit did when it reversed a district court opinion finding the law unconstitutional. The Fifth Circuit’s misapplication of Whole Woman’s Health in this case, which Louisiana has urged the Supreme Court to endorse, provides a chilling illustration of how the right to abortion can be acknowledged in theory but erased in practice.   

Let’s start with some brief background to help orient us to how far the Fifth Circuit went astray.  Whole Woman’s Health addressed two abortion restrictions, an admitting-privileges requirement identical to the law at issue in June, and a law forcing abortion clinics to close unless they transformed themselves into hospital-like ambulatory surgical centers.  In invalidating those laws, the Court established two central principles for applying the undue burden test.  

First, when it comes to examining both the governmental interests that an abortion restriction purports to serve and the obstacles it imposes, facts and evidence matter.  It is not enough for the state to recite interests (like protecting patient health) that sound laudable in the abstract.  Rather, the government must prove both the existence of a problem justifying the restriction and that the law would in fact advance the state’s interest in alleviating it.  In Whole Woman’s Health, for example, the Court determined that Texas’s admitting-privileges statute was medically unjustified where “there was no significant health-related problem that the new law helped to cure.”  It is incumbent on the state to show evidence of a real harm that its law would actually fix. 

SecondWhole Woman’s Health makes clear that the undue burden test is governed by a principle of proportionality: an abortion restriction that does not “confer[] medical benefits sufficient to justify the burdens upon access that [it] imposes” is unconstitutional.  As summarized by Judge Posner, “[t]he feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”   

Under those principles—even setting aside the fact that Whole Woman’s Health invalidated an identical admitting-privileges statute—June should have been an easy case.  With respect to the facts, the district court made extensive post-trial findings about the law’s insubstantial benefits and significant burdens.  Far from advancing the state’s professed interest in protecting patient health, the court found that the law was a solution in search of a problem—the medical evidence showed both that abortion is an extremely safe procedure, and that it is not made safer by requiring a physician to have admitting privileges.  And as for the law’s burdens, the court found that enforcement of the statute would devastate abortion access in Louisiana, because most abortion providers could not secure hospital privileges, despite good-faith efforts, for reasons having nothing to do with their competency or skill as medical providers.  Nor did the Louisiana district court go out on a limb in reaching those findings. Numerous courts across the country have addressed admitting-privileges laws in recent years, and all have ruled identically—the consensus among factfinders is that admitting-privileges requirements obstruct abortion access without meaningfully furthering any valid state interest.  

Application of the balancing test to those facts should be straightforward.  A law that decimates abortion access but does little or nothing to protect patient health does not confer “benefits sufficient to justify the burdens.”  Under anything resembling an evenhanded application of precedent, this should be the end of the analysis.   

But that is not what the Fifth Circuit did.  The tortured rationale that the Fifth Circuit employed to uphold the admitting-privileges law gives us a stark look at how the Supreme Court might pay lip-service to precedent while eviscerating the right to access abortion in reality—which is exactly what Louisiana has asked it to do.  

The Fifth Circuit began by acknowledging that Louisiana’s statute provided nothing more than a “minimal” benefit to patient health.  If, as Whole Woman’s Health holds, an abortion restriction must confer benefits sufficient to justify its burdens on abortion access to pass constitutional muster, how could a law with a feeble-to-nonexistent medical basis survive judicial scrutiny?  Remarkably, the Fifth Circuit did not even attempt to answer that question.  Instead, it sidestepped the fact that the law did little or nothing to further Louisiana’s ostensible interest in patient welfare, and ruled that it was incumbent upon abortion providers to engage in extensive efforts to mitigate the law’s burdens by working more vigorously to secure privileges, even in the face of evidence proving (1) that they could not do so, and (2) that it would not meaningfully benefit patient health even if they could.  

This mitigation theory is not just untethered to Supreme Court precedent—it directly violates the two core teachings of Whole Woman’s Health noted above.  

First, it defies Whole Woman’s Health’s emphasis on the centrality of facts, evidence, and district court factfinding.  The Fifth Circuit speculated that abortion providers might be able to get privileges if they tried harder, but the evidence (and the district court’s detailed factual findings) showed exactly the opposite.  The Louisiana district court, like all other trial courts that have addressed admitting-privileges laws in recent years, found that a constellation of factors prevent abortion providers from being able to satisfy an admitting-privileges requirement.  (And of course, that’s exactly why anti-abortion advocacy groups like Americans United for Life wrote model admitting-privileges bills for state politicians to rubber stamp in the first place.  If you think the inability of abortion providers to satisfy those requirements is a coincidence, I’ve got a bridge in Brooklyn to sell you.)  For example, hospitals often condition eligibility for admitting privileges on doctors being able to admit a minimum threshold of patients per year, but because abortion is so safe, and results in so few hospital admissions, abortion providers are facially barred from meeting those requirements.  Other hospitals decline to grant abortion providers privileges out of institutional opposition to abortion or a desire to steer clear of controversy, such as the Shreveport hospital that refused to grant an abortion provider admitting privileges specificallydue to the “controversy” and “political nature” of his medical practice.  If Whole Woman’s Health means anything, it means that trial court factfinding trumps appellate court speculation—and yet here we are.  

Second, the Fifth Circuit’s mitigation requirement defies Whole Woman’s Health’s proportionality rule.  Put simply, forcing abortion providers to undertake herculean efforts to satisfy a requirement that does not meaningfully protect patient health is the very embodiment of disproportionality.  Under the Fifth Circuit’s reasoning, a state could compel abortion providers to undertake inexhaustible efforts to attempt to comply with an abortion restriction—no matter how tenuous the restriction’s relationship to patient health or any other valid interest—and then deem the providers themselves causally responsible for the inevitable effects of the regulation when they cannot blunt its impact.  And by the Fifth Circuit’s logic, a state could enact a pretextual statute designed to impose gratuitous costs on abortion providers—and, in turn, on patients—and insist that providers undertake limitless efforts to comply, all in furtherance of no valid purpose. 

That reasoning is profoundly inconsistent with Whole Woman’s Health.  Take, for example, the Texas ambulatory surgical center requirement that was at issue there.  The evidence in that case showed that it would cost millions of dollars per clinic to comply with the mandate—which the clinics could not sustain—but that performing abortions in ambulatory surgical centers would not improve patient health one iota. Under the Fifth Circuit’s logic in June—essentially, “when the state says ‘jump,’ abortion clinics say ‘how high?’”—the Texas clinics had a duty to mitigate the harms imposed by this medically pointless requirement by spending millions of dollars to transform their facilities or closing their doors.  Had the Supreme Court adopted that reasoning in Whole Woman’s Health, it would have meant the practical elimination of abortion access for many in need of that care in Texas and elsewhere.   

Yet that is what the Fifth Circuit would require under its logic in June, and it is what Louisiana has asked the Supreme Court to endorse in this case.  And if the Supreme Court follows the Fifth Circuit’s approach of paying mere lip-service to precedent, it would mean that for many, the right to abortion would, for all practical purposes, vanish—even if right continues to exist on paper. 

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