On the orders list from Tuesday was a denial of certiorari in Planned Parenthood v. Jegley, a case I wrote about previously here. The case involves a challenge to an Arkansas law that requires providers of medication abortion to have contracts with doctors who have admitting and surgical/gynecological privileges at hospitals. The district court had enjoined the law, but the Eighth Circuit vacated the injunction, reasoning that the district court had not made the necessary findings in order to enjoin its enforcement.

Planned Parenthood v. Jegley is part of a trend in cases post-dating Whole Woman’s Health v. Hellerstedt in which states are seeking to whittle down much of the ground that reproductive health advocates thought they had preserved in Hellerstedt. Hellerstedt invalidated two provisions, one that required abortion providers to have admitting privileges at hospitals, the other that required abortion providers to retrofit their facilities to comply with the requirements for ambulatory surgical centers. In invalidating the requirements, Hellerstedt emphasized that courts must assess whether a requirement actually furthers a valid purpose, and weigh its benefits against the burdens the law imposes. In the wake of Hellerstedt, and particularly in the wake of the election, states enacted a slew of restrictions on abortion, and in defending their constitutionality, they sought to limit Hellerstedt in a variety of unpersuasive ways. I wrote about some of them in this piece for the Michigan Law Review online.

After the certiorari denial in Planned Parenthood v. Jegley, commentators were quick to explain that the procedural posture of the case made it an unattractive candidate for certiorari. The Eighth Circuit, after all, had vacated the injunction and remanded the case to the district court to make additional findings. Thus, it is still possible that Planned Parenthood will prevail and have the law enjoined.

But that tree obscures the forest of the post-Hellerstedt landscape. The Eighth Circuit’s reasoning in Planned Parenthood v. Jegley, which stands in light of the Court’s denial of certiorari, was, to put it lightly, absurd, and also wildly inconsistent with Hellerstedt. Planned Parenthood v. Jegley, for example, didn’t assess the law’s benefits while demanding more evidence of the law’s burdens, which wouldn’t (and shouldn’t) have been required given that the law has no apparent benefits. It also faulted the district court for not defining the phrase “the Fayetteville area” and for not estimating the number of women who would forego and postpone their abortions. (The district court in Hellerstedt did not do any of those things.)

Planned Parenthood v. Jegley’s reasoning is already been seized upon by states in the Eighth Circuit in order to justify arguments that would have the circuit flouting Hellerstedt. Consider Hopkins v. Jegley, which involves a challenge to an Arkansas law banning the D&E (dilation and evacuation) procedure, a very commonly used method for second-trimester abortions, among other provisions. Here is how the state is using Planned Parenthood v. Jegley in its brief:

• “A law only imposes an undue burden where its benefits “are substantially outweighed by the burdens it imposes”
• “An undue burden exists where a law completely fails to advance a legitimate interest (or does so in such a trifling way that it lacks any rational connection with the governmental interest) and imposes exceptional and truly significant burdens.”
• “[O]nly rarely—where a legislature totally errs in assessing benefits and burdens—will a law constitute an undue burden.”
• “[A]s this Court recently held in vacating a preliminary injunction similarly based on a finding that a regulation would cause “some women” to delay or forgo an abortion, whether a regulation impacts some is not the relevant question on a facial challenge. Instead, to justify facial relief, [a plaintiff] must demonstrate—and the district court must determine—that the Act would be unconstitutional in a large fraction of relevant cases and not just potential situations that might develop.”
• A law is not unconstitutionaly in a large fraction of cases where “the district court merely alluded to amorphous groups of women.” “[S]peculation about some, unknown number of women hardly warrants facial relief.”

Some of those are direct quotes from Planned Parenthood v. Jegley; others of them are not. The point, however, is that states are milking Planned Parenthood v. Jegley for all that is worth, and given that their audience is the court that wrote Planned Parenthood v. Jegley, some of these arguments may succeed.

Another, related issue is what will happen to abortion providers so long as they labor under this unfavorable and incorrect regime. I’m not just talking about the clinics that are affected by the regulation at issue in Planned Parenthood v. Jegley, though those clinics may be among the casualties. Under usual circumstances, once an appellate court vacates an injunction and issues its mandate, the state could enforce its law (which would no longer be enjoined). In Planned Parenthood v. Jegley, however, the clinics asked the Eighth Circuit to stay the issuance of its mandate, thus preserving the injunction, until the Supreme Court resolved the petition for certiorari. The Eighth Circuit granted Planned Parenthood a stay, over the noted dissent of one judge, Judge Gruender.

But now that the Supreme Court has denied the cert petition, the mandate will issue and the providers will have to frantically seek interim relief (again) in the district court in order to avoid shutting their doors, even temporarily. (The plaintiffs in Planned Parenthood argued that the regulations would close two of the state’s three clinics.) Interim relief from the provision is important because even temporary door shuttering can have lasting consequences; that’s part of what makes required do-overs and vacated injunctions so risky (in addition to delaying procedures for women). As Melissa Murray noted in this Jotwell review, many of the clinics that closed in the wake of the regulations challenged in Hellerstedt never reopened once the regulations were ultimately invalidated.   The same thing may happen in the Eighth Circuit and elsewhere in the wake of Planned Parenthood v. Jegley, as litigants may not always succeed in preventing regulations from going into effect, even for short periods of time.

Two other notes on the certiorari denial in Planned Parenthood v. Jegley. In addition to the procedural posture of the case, the denial prompted questions about a certain Justice’s possible retirement. One way of looking at the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan was that they were unwilling to push for a grant (and vote for a grant, or at least note that they did so) if they were uncertain whether Justice Kennedy would still be on the Court when it heard the case the following term. Another way of looking at their votes, however, is that they were willing to wait for another case to make its way to the Court at some point in the future, suggesting they might not think Justice Kennedy is going anywhere just yet. I guess we’ll learn more by the end of June.

Disclosure: I signed an amicus brief in support of cert in Planned Parenthood v. Jegley.

@LeahLitman

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