//  2/13/19  //  In-Depth Analysis

It was the great John Dingell (RIP) who said “If you let me write the procedure, and I let you write the substance, I’ll screw you every time.”  He might as well have been talking about the Supreme Court’s stay practice, or at least the stay orders from last Thursday in June Medical Services v. Gee and Dunn v. Ray. 

I’ve now written two pieces, one on this blog and one in the Washington Post, about the Supreme Court’s 5-4 decision to stay the U.S. Court of Appeals for the Fifth Circuit’s decision in June Medical Services v. Gee.  In that case, the court of appeals upheld the same exact requirement that the Supreme Court had invalidated in Whole Woman’s Health v. Hellerstedt, just 2.5 years ago. (The requirement was that abortion providers must obtain admitting privileges at a hospital within 30 miles of where the doctors perform abortions.)

In this piece, I wanted to compare the Court’s order and the various Justices’ votes in June Medical with the Court’s order and the various Justices’ votes in Dunn v. Ray. In Ray, the 5 more conservative Justices voted to lift the U.S. Court of Appeals for the Eleventh Circuit’s stay of execution of Mr. Ray. Mr. Ray, a Muslim man, wanted an imam to accompany him into the execution chamber, just like Christian chaplains accompany Christian prisoners into the execution chamber. The state refused. The Eleventh Circuit stayed Mr. Ray’s execution to allow the court time to fully adjudicate Mr. Ray’s very strong establishment clause/free exercise claim.  The Supreme Court overturned the stay on Thursday night, and Mr. Ray was immediately executed without his imam with him.

There are several parallels between the two orders, and the ways that different Justices resolved them. But I want to resist the narrative that has been offered as a defense of the majority’s disposition in Ray—namely, that the decision in that case was all or only about procedure.  And I want to further debunk the idea that Justice Kavanaugh’s position in June Medical was nuanced or thoughtfully trained on the best reading of the Court’s opinion in Whole Woman’s Health.


In both Ray and June Medical, there were issues of fact that the court of appeals and the Supreme Court weighed in on. And in both cases, the majority of the Supreme Court sided with the district court’s factual finding, and disagreed with the courts of appeals factual finding (in both cases, the courts of appeal had disagreed with the district court’s factual finding).

In Dunn v. Ray, the district court had refused to stay Mr. Ray’s execution on the ground that Mr. Ray delayed challenging his execution. The U.S. Court of Appeals for the Eleventh Circuit disagreed with that finding—that Mr. Ray was dilatory—and entered the stay.  The U.S. Supreme Court did not really explain its reasoning in the order vacating the stay, but the only rationale it did allude to was Mr. Ray’s purported delay. The Court’s order read:

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. Of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

(Emphases mine.) So the Supreme Court appeared to agree with the district court (and disagree with the court of appeals) that Mr. Ray waited too long to bring his claim.

Now contrast that with what the Court did in June Medical Services. In June Medical, the district court found that the doctors currently performing abortions in Louisiana would not likely be able to obtain admitting privileges at hospitals (except for one of them), and that all but one of the clinics offering abortions would likely close as a result. The court of appeals disagreed with those findings—speculating that if the doctors tried hard enough, then maybe they could obtain admitting privileges; and that if they did, then fewer clinics would close.  A majority of the Court apparently disagreed with this analysis when it stayed the court of appeals decision; Justice Kavanaugh endorsed it in his thin dissent—that is, he appeared to disagree with the district court’s factual findings.

Does that mean only the Chief Justice was consistent in his votes?  He was the only Justice to side with the district court in both cases, and district courts are, in our system, the fact finders.

It is tempting to search for a singular principle—unconnected to the specific facts of each case—in an attempt to ensure the Justices’ votes are not guided primarily by their views about the merits of the claims that Ray and the abortion providers were making.

But that would be a mistake, or at least it would be too simplistic.  The reality is that some factual inferences are more plausible than others, and that some procedural or equitable determinations depend on one’s views about the underlying substance. And in any case, the majority’s decision in Ray was more about a legal and equitable determination than a factual one.  Let me explain.

Plausibility of Facts

In Ray, the 5 conservative Justices and the district court held that Mr. Ray should have raised his constitutional challenge earlier than he did. But when could Mr. Ray have brought that claim that the state would violate the constitution if it did not allow an imam to accompany Mr. Ray to the execution chamber?  As Justice Kagan explained in her powerful dissent—and as the district court found—the state denied Mr. Ray’s request for the imam to accompany him into the chamber on January 23rd; Mr. Ray challenged the state’s decision on January 28th when his execution was scheduled for February 7th. Five days is certainly not that long a time; and challenging an execution more than a week in advance is hardly a last-minute request.

The Supreme Court majority’s decision to fault Mr. Ray for the delay has to rest on one of several conclusions—some legal, and some factual, but all of which are questionable.

One rationale for the Court’s decision could be that Mr. Ray should have brought his claim when he should have known that the prison would deny his ability to have an imam present, rather than when he actually knew that the prison would deny his request to have an imam present.  One can reasonably question if that is the right standard to use in these circumstances, which involved a capital case involving a particularly strong claim of religious liberty.  Why not, under those circumstances, start the clock at the moment when the prisoner actually knows his request was denied?

A choice to focus on when Mr. Ray should have known that the prison would deny his ability to have an imam present is also an odd standard to impose on prisoners sentenced to death under these circumstances, and it would have been an odd application of that standard to conclude that Mr. Ray should have known what the prison was going to do earlier. The text of the statute/regulation does not distinguish between different religious counselors, or indicate who the prison had on staff by way of religious counselors who could accompany someone to the execution chamber.  So how do the majority or the district court think that Mr. Ray should have earlier realized what the prison would do?  Perhaps they think that prison guards would have informed Mr. Ray, if they saw something similar occur in prior executions.  That seems … unlikely to me, or at least it is not sufficiently clear that it is more likely than not that Mr. Ray would have known about this policy earlier.  Or perhaps the majority thinks that Mr. Ray would have heard about this from other prisoners who were subjected to this policy on their way to the execution chamber, or had their requests previously denied?  Again, there is very little to be confident about that inference either—it is not clear when, if ever, that happened previously, or when, if ever, Mr. Ray would have found out about it.

So what we have is a Court that selected a less favorable legal standard—and perhaps an unrealistic legal standard—to hold a capital prisoner to; then applied that legal standard to reach a factual conclusion that is at least very poorly substantiated.

Now compare the majority’s seeming factual inferences and legal conclusions with the factual findings in June Medical Services. In June Medical, the district court found that all but one doctor would not be able to obtain admitting privileges at nearby hospitals in Louisiana, and that all but one clinic would therefore close.  The court of appeals and Justice Kavanaugh disagreed with that finding; the Chief Justice and the four more liberal Justices apparently agreed with it, or at least agreed with it enough to impose a stay.

It turns out that the factual inferences supporting the district court’s finding in June Medical are both more plausible and better supported than the district court’s finding in Ray. In June Medical, the district court surveyed evidence about the admitting privileges requirement and the doctors subject to it. One doctor had been attempting to obtain admitting privileges since 2014, and still had not succeeded in doing so. But I’m sure things would turn around in the next 45 days!  (There was no evidence that they would.) A second doctor was only able to obtain “limited” privileges, but not admitting privileges, at a hospital near one facility. But again, I’m sure a miracle is on the way and things are about to change any second now!  (I am not actually so sure.)  A third doctor—who had admitting privileges-- obtained those privileges because of his work as an OB/GYN.  But the reason that doctor was able to obtain admitting privileges underscores why the other providers could not: Because abortion is incredibly safe, doctors whose practice focuses on abortions do not admit enough patients to hospitals in order to qualify for admitting privileges.  The other doctors were likewise unsuccessful at obtaining admitting privileges near clinics where they practiced.

The district court found that Louisiana hospitals do not offer admitting privileges based only on a doctor’s competence.  Rather, they consider things such as the number of patients a doctor admits.  Because all but two of the current abortion providers in Louisiana do not have general OB/GYN practices, they do not regularly admit patients to hospitals.  The district court also found that hospitals require a doctor to live near the hospital in order to obtain admitting privileges; two of the doctors travel much farther than 30 miles to perform abortions at some clinics; therefore, they could not obtain admitting privileges near them.  Finally, the district court also received testimony that hospitals refused to offer admitting privileges to practitioners when the practitioners performed abortions. (The doctor who has been trying to obtain admitting privileges since 2014 has applied to three different hospitals; in order to obtain admitting privileges, the doctor must identify another physician who will cover the doctor’s patients if the doctor is not available.  Given the small number of abortion providers, and opposition to abortion, the doctor was not able to obtain an agreement from another doctor to cover the doctor’s patients.) And this evidence does not even include the evidence about the harassment and intimidation of abortion providers—such as when a clinic was attacked by a guy with a sledgehammer; another one with a Molotov cocktail; and a guy who drilled through the walls and tried to pour acid in it.

It is against that backdrop that Justice Kavanaugh said that he wasn’t convinced that the doctors could not obtain admitting privileges, and the district court’s factual findings were apparently not substantiated or persuasive enough. But he did not identify any contrary evidence to support his suggestion that maybe, just maybe, the doctors would be able to obtain admitting privileges after all. Nor did he give any reason to doubt the district court’s findings.  

Equitable or Procedural Judgments About Substance

Back to John Dingell. The most important similarity between the two cases is that they underscore how procedural rules and procedural maneuvers (or at least the procedural rules the Court invoked in Ray and June Medical Services) are deeply substantive in that they ask the Court to make a determination about who should bear the risk of error in each case, and when (or under what circumstances), procedural rules should be forgiven.

In Ray, the Court had a choice about whether and how to consider any purported delay on Mr. Ray’s part, and whether and how to factor it into a decision about whether to grant a stay of execution. The Court cited a case for the proposition that the Court “may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” 

Emphasis on may consider, because it underscores that the Court chose to overlook a powerful religious liberty claim in a case where the prisoner filed the stay request five days after he definitively found out he was about to be denied his religious liberty, and over a week before his execution.  And Mr. Ray’s claim was not that he could not be executed at all; it was only that he could not be executed unless and until the state found a way to provide him a religious counselor just as it provided Christian prisoners their religious counselors.

Of course any delay on Mr. Ray’s part and the state’s interest in not delaying the execution have to be weighed against these considerations.  But when the extent and nature of any delay on Mr. Ray’s part are clear—together with the fact that Mr. Ray did not seek to prevent his execution at all—the Court’s equitable calculus, and exercise of its discretion is deeply questionable.  And it is particularly questionable in light of the Court’s decision to override other important policies and constitutional values in favor of religious liberty. In Hobby Lobby, the Court suggested that employers’ religious liberty interest outweighed employees’ access to health care, and women’s access to healthcare that provides them with economic and professional power and flexibility. And in Masterpiece Cakeshop, several Justices indicated that they are poised to say that some individuals’ religious liberty interests outweigh other citizens’ interests in the equal protection of the laws, and the interests protected by antidiscrimination statutes.  But the Court said that Mr. Ray’s religious liberty interests did not outweigh the state’s interests in the case. How puzzling. 

Like Ray, one important question in June Medical was also how to exercise the Court’s discretion, based in part on the Court’s assessment of the risks on either side of the decision about whether to grant a stay.  In June Medical, the risk of not granting a stay was that the clinics would close.  If the doctors could not obtain admitting privileges, they could not perform abortions without subjecting themselves to the risk of criminal prosecution.  (And contrary to Justice Kavanaugh’s dissent, the state had said nothing about not enforcing those criminal prohibitions; the state agency that purported to announce that there would be a 45-day “transition period” to enforcing the regulations (the Louisiana Department of Health) does not enforce the criminal code—it is just in charge of licensing clinics.)  And if the clinics did not have doctors to perform abortions—or could not certify that their doctors had admitting privileges—then the clinics would shut down. It is that simple.

Justice Kavanaugh and the three other more conservative Justices would have taken that risk. Is it possible that the clinics could have reopened in the event that the doctors were able to obtain admitting privileges, or in the event the clinics went back to court to challenge the law after the doctors could not obtain admitting privileges after some time? That is how Justice Kavanaugh suggested they could challenge the law—he said they could obtain a stay and challenge the law only after the law went into effect, and only after they tried a bit longer to obtain admitting privileges.

  1.     But perhaps not, and there is reason to think that it is more likely the clinics would never reopen under those circumstances.  In Whole Woman’s Health v. Hellerstedt, the Supreme Court initially refused to stay the admitting privileges requirement.    Later, there was a brief period (under three weeks) during which the clinics temporarily closed or were temporarily unable to perform abortions.  Once the ambulatory surgical center requirement was stayed, the clinics were able to reopen and doctors able to perform abortions one again. Some of the clinics that closed during those periods never reopened.  Why? It is expensive to keep a facility open when it is not actually operating, and might never again, and it is a big risk to gamble on the success of a legal challenge once the court has denied a request to stay the enforcement of the law being challenged.


Ray and June Medical are not really about the district court’s general role as fact-finders.   They are, instead, about the factual, procedural, and equitable standards that courts hold different kinds of plaintiffs to—who they indulge, and who they hold to increasingly insurmountable or prohibitively difficult standards. In both Ray and June Medical Services, some Justices indulged implausible and unsupported factual inferences in order to force certain plaintiffs out of court—capital defendants and abortion providers—under the guise of procedure.

In both cases, the Justices used procedural rules that were nominally divorced from the substance of the underlying claims to force those plaintiffs out of federal court, and risked egregious, irreversible constitutional violations in the process. In Ray, the procedural rule concerned when litigants must seek equitable relief, and what sorts of delay federal courts should hold against a capital defendant. The Court concluded that a prisoner’s small delay outweighed the risk that he was about to be executed without his religious counsel and confidante, even though prisoners who held other religious beliefs would have been allowed their religious counsel and confidantes.  And once he was executed, there was no going back and fixing it—the harm was irreparable.

In June Medical, the procedural considerations that Justice Kavanaugh pointed to were about facial challenges, and the fact that the plaintiffs were challenging the law were it was going to be enforced. But that procedural posture did not change the likelihood that doctors could obtain admitting privileges, given that some had been trying to do so for over five years, and the fact that the criteria for obtaining admitting privileges had very little to do with doctors’ qualifications and an awful lot with objections to abortion, and criteria that would screen out abortion providers.  And the risk of irreparable harm was very apparent in light of the experience from Whole Woman’s Health—when clinics or doctors are at risk of not complying with the law, they will shut down, and may never reopen.  And Justice Kavanaugh didn’t care.

That the Justices invoked procedural rules in Ray and June Medical should not obscure the fact that those nominally procedural rules and their application were deeply enmeshed with substantive considerations—what burdens of proof and inferences they would hold particular litigants to, and what risks of what kinds of constitutional violations they would tolerate. John Dingell, as always, was right.


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