Two months ago, I highlighted how the government’s conduct and argumentation in Garza v. Hargan was emblematic of a broader challenge to women’s access to reproductive choices.  In Garza, the government is (in)famously arguing that its refusal to release a woman from its custody merely amounts to not affirmatively facilitating the woman’s abortion.  In that litigation, the government is also defending its ability to delay women’s abortions by over seven weeks, and well past the point at which the women can obtain first-trimester, medication abortions, so that the government continue to search for private sponsors for the women.

While the government’s behavior in Garza is stunning, it is not altogether unique (except for the government’s bizarre, outlandish request for sanctions, and its contemplation of conducting medical experiments on the women).  As I noted in my earlier post, several states have, similar to the Office of Refugee Resettlement, attempted to limit the Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt in a variety of unpersuasive ways that would also have the effect of limiting the import of the decision.

In one of those cases, the state succeeded in persuading a federal court to go along (at least temporarily). Planned Parenthood v. Jegley involves a challenge to an Arkansas law that requires providers of medication abortions to have contract agreements with physicians who have admitting privileges at hospitals, and who agree to handle any emergency complications that result from the medication abortion.  If that requirement sounds familiar, you’d be right!  It’s similar to one of the two requirements the Court invalidated in Whole Woman’s Health.

Along with several other academics, including Take Care contributors Erwin Chemerinsky, Walter Dellinger, Michael Dorf, Gillian Metzger, and Larry Tribe, I joined an amicus brief urging the Court to grant certiorari in Jegley.  We were very fortunate to be represented by some excellent attorneys from Wilmer Hale.  As our brief explains, the Eighth Circuit’s analysis represents a troubling departure from the Court’s repeated direction. 

For example, Whole Woman’s Health held that the Fifth Circuit Court of Appeal’s undue burden analysis was “incorrect” because it could be “read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden.”  But the Eighth Circuit in Jegley somehow “f[ound] it unnecessary to reach the issue of [regulation’s] benefits.”

Whole Woman’s Health also instructed courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” But the Eighth Circuit could not perform that analysis, given that it did not consider the regulation’s benefits.  Whole Woman’s Health also repeatedly emphasized the “virtual absence of any health benefit” to either of the challenged regulations, which is relevant to whether the regulations are the kind of “unnecessary health regulations” the Court has repeatedly said would constitute undue burdens.  But again, the Eighth Circuit’s approach elided any such analysis, because it refused to consider the law’s benefits. 

The Eighth Circuit’s analysis of the regulation’s burdens was also problematic.  The regulation would end medication abortion in the state entirely, and would close two of the three remaining abortion clinics in the state.  The Eighth Circuit didn’t dispute those findings.  Instead, it said that the district court’s analysis of the burdens was flawed because, among other things, the district court had not defined what it meant by “the Fayetteville area” when it concluded that women in “the Fayetteville area” would not have reasonable access to an abortion provider.  (That’s not a joke.)

If you are interested, you can read our amicus brief here.  I also wrote a short piece in the Michigan Law Review Online about the kind of analysis the Eighth Circuit used—an analysis that makes nonsense of the Supreme Court’s opinions in Whole Woman’s Health and Planned Parenthood of Southeastern Pennsylvania v. Casey, and will make reasonable access to reproductive health services a fiction in many places in the United States. 

@LeahLitman

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