//  9/27/19  //  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.

Mary L. Bonauto (GLBTQ Legal Advocates & Defenders) and Shannon Minter (National Center for Lesbian Rights)

[Mary and Shannon both represented parties inObergefell, and parties or amici in Pavan v. Smith, along with much other marriage and family related litigation.]

It’s a familiar strategy: the losing side of a watershed Supreme Court case that protects fundamental rights tries to regain lost ground by claiming that the next case is just a little different, and therefore the hard-won precedent doesn’t apply. It happened after Obergefell, when some states claimed that marriage equality did not require states to treat married same-sex couples equally in all respects. The Supreme Court shot down that specious claim in short order, in a terse summary reversal of an Arkansas Supreme Court opinion. States hostile to abortion are mobilizing the same specious tactic now, and the Supreme Court should follow its own example. 

The Supreme Court’s Obergefell v. Hodges ruling on June 26, 2015 held that same-sex couples have a fundamental right both to marry and to all of the “government rights, benefits, and responsibilities” tethered to marriage under state and federal law. Yet barely two weeks later, two married same-sex couples - Marisa and Terrah Pavan, and Leigh and Jana Jacobs – were forced to file a lawsuit challenging Arkansas’s refusal to recognize both spouses as parents on their children’s birth certificates, notwithstanding an Arkansas law requiring both a child’s birth mother and her “husband” to be listed on the birth certificate. 

The trial court ordered the state to comply with Obergefell and to list both spouses on the birth certificates, recognizing that failing to do so would deny married same-sex couples one of the most important benefits of marriage. As the trial court noted, the state placed male spouses on birth certificates regardless of whether they had any genetic relationship to the child—most notably in the case of children conceived through donor insemination. Therefore, it must do the same for female spouses.

On appeal, a divided Arkansas Supreme Court reversed. It niggled about Obergefell’s protection of the "constellation of benefits that the Stat[e] ha[s] linked to marriage," claiming that it “did not address” the Arkansas birth certificate framework. Why? Because in the Arkansas Supreme Court’s view, Arkansas’s birth certificate law “center[ed] on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife.”  Notwithstanding the glaring reality of married different-sex parents being deemed legal parents regardless of biology – the majority found that Obergefell didn’t control.

To reach that conclusion, the Arkansas Supreme Court simply declined to address the obvious fact that Arkansas law required all husbands—regardless of their biological relationship to a marital child—to be listed on the birth certificate.  In other words, it ignored that Arkansas’s regime is based on marriage, not biology, and the state was blatantly discriminating by excluding same-sex spouses from that important marital right.  

In a no-nonsense, per curiam ruling, the Supreme Court reversed the Arkansas Supreme Court decision and reiterated Obergefell’s rule that marriage must be available to same-sex couples “on the same terms and conditions” applied to different-sex couples. Concretely, that meant that marital protections must be “extended” to same sex couples – in particular, the requirement that both spouses must be recognized as legal parents and listed on the child’s birth certificate “in cases where the couple conceived by means of artificial insemination.” The Court rejected the state court’s disregard for Obergefell’s plain text¸ noting that “birth and death certificates” were among the “rights, benefits, and responsibilities” of marriage expressly enumerated in Obergefell. Despite the Arkansas court’s attempt to reframe the birth certificate law as “simply a device for recording biological parentage” unrelated to any state interest in marriage, the Supreme Court held that because husbands automatically appeared on birth certificates without regard to biological connection, the same rule must apply to a birth mother’s female spouse. 

The Court’s “asked and answered” approach to the Arkansas Supreme Court supports summary reversal of the 5th Circuit in June Medical Services v. Gee as well. Louisiana’s Act 620, which requires physicians providing abortion services to hold “active admitting privileges” at a hospital within 30 miles of the facility where an abortion is provided, is identical in all relevant respects to Texas’s H.B. 2, which the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt (“WWH”). As Linda Greenhouse and Reva Siegel have written, these laws target abortion providers with regulations not applied to procedures with the same or greater medical risk. 

The Whole Woman’s Health opinion in 2016 repudiated such restrictions.  It struck the Texas law and specified that the Court’s 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey  “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” It held that because admitting privileges laws have no health benefits but burden abortion access by forcing doctors to stop providing abortions, they fail the undue burden test.

Remarkably, after a Louisiana district court struck down that state’s admitting privileges law in a straight-up application of Whole Woman’s Health (“WWH”) , the 5th Cir. reversed. As Judge Dennis observed in dissenting from denial of the petition for rehearing en banc, “[t]he panel majority opinion is in clear conflict with the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), holding unconstitutional an almost identical Texas admitting privileges requirement that served as a model for Act 620. The panel majority’s attempt to distinguish WWH doesn’t hold up to scrutiny. It is based on an erroneous and distorted version of the undue burden test required by WWH and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).” The 5th Circuit panel ignored that the Louisiana law is substantively identical to the law struck down in WWH. The district court found no relevant differences in benefits or burdens, based on a six-day trial with extensive factual findings.  There was simply no daylight between the Louisiana case the Texas case from three years before.     

Faced with the need to get out from under binding precedent, Louisiana tried, and is still trying, to argue this is not actually the same case. It claims that the benefits are different because the law purportedly serves a “credentialing” function, even if it doesn’t offer health or safety benefits. The 5th Cir. agreed that “credentialing” is different enough to salvage a law that does nothing to advance health – even though the Supreme Court itself found that “the admitting-privileges requirement does not serve any relevant credentialing function.” If this is sounding like a familiar strategy, recall that the Arkansas Supreme Court held that “recording biological parentage” differs sufficiently from a “benefit of marriage” to escape Obergefell’s binding precedent.   

And the 5th Circuit made another move that echoes the Arkansas Supreme Court’s attempt to manufacture a different case. Just as the Arkansas court declined even to acknowledge that the state listed a birth mother’s husband on the birth certificate regardless of whether he had any biological connection to the child, the 5th Circuit ignored large swaths of the record that were on all fours with Whole Woman’s Health.  It refused to rule on the actual facts in the record about how many doctors couldn’t get admitting privileges and how many clinics therefore would have to close because of the law – instead making up its own, highly edited version of the record.    

Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal. The Arkansas high court pretended that the birth certificate issue was factually and legally distinct from Obergefell’s watershed holding– when in reality, Obergefell left no possible grounds for distinguishing between married couples. The only way out from fully binding precedent was for the Arkansas court to create a new case, characterizing the birth certificate statutes as serving a biological registration function, and ignoring the state’s blatant discrimination between same-sex and different-sex married parents. That’s exactly what the 5th Cir. did in June Medical, substituting a concocted “credentialing” function to get around the lack of health benefits, and ignoring or actively rejecting every fact about burdens that in the record that made the case indistinguishable from Whole Woman’s Health.  It’s a familiar pattern where controversial fundamental rights are concerned, and the Court should recognize it by now.  Summary reversal is the only solution. Sometimes the same case is the same case.    

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