By Jon McLamb
Although the abortion rights controversy continues to present day, the fight for such rights was renewed on October 4, 2019 when the Supreme Court of the United States granted certiorari in June Medical Services v. Gee.[1] The case involves a Louisiana abortion statute that places additional requirements on physicians who perform abortions. Specifically, the statute requires doctors who perform abortions to have “admitting privileges” at a hospital within thirty miles from where the physician performs abortions.[2] Admitting privileges mean that a “physician is a member in good standing of the medical staff of a hospital that is currently licensed by the [Louisiana] department [of Health and Hospitals], with the ability to admit a patient and to provide diagnostic and surgical services to such patient[s].”[3] The Supreme Court’s grant of certiorari threatens the accessibility of abortions nationwide and may ultimately lead to the indirect abolition of legal abortions.
The Supreme Court analyzed a nearly identical Texas statute in a recent case, Whole Woman’s Health v. Hellerstedt.[4] Notably, in Hellerstedt, the Supreme Court struck down the statute. The Court’s rationale was based in part on its’ finding that although Texas stated legitimate interests in enacting the admitting privileges statute, such as ensuring that women have easy access to hospitals when having abortion complications, Texas did not show that the statute provided significant health benefits for women.[5] In other words, the Court held that a state must not only assert a legitimate interest, but also show that the abortion statute actually furthers that interest.[6] Additionally, the Court held that the benefits and burdens must be weighed against each other to ensure that the abortion statute does not create an “undue” burden.[7] After a weighing the benefits and burdens, the Court determined that the burdens outweighed the benefits, and therefore the statute was unconstitutional.[8]
The Supreme Court’s grant of certiorari in Gee, a nearly identical case to Hellerstedt, only three years later, could likely have significant consequences for those seeking abortions in the future. One notable consequence is that it may become more difficult for women to have an abortion because less physicians are available, or clinics are further away. Before analyzing the potential outcomes of Gee, a discussion of the proceedings below will help illustrate the dilemma.
PROCEDURAL HISTORY
On April 26, 2017, the United States District Court for the Middle District of Louisiana decided the case. With the Supreme Court case Hellerstedt as guiding precedent, the District Court found that the Louisiana statute was unconstitutional because the burdens significantly outweighed the benefits.[9] The District Court determined that the Louisiana statute would create “substantial obstacles” for women seeking abortions.[10]
The District Court found that the Louisiana statute would impose several burdens. First, the District Court found that the number of abortion providers would be reduced to at most two physicians.[11] These physicians would be required to cover the entire state of Louisiana.[12] The result, the court determined, would cause the demand for abortions to significantly outweigh the supply of abortion providers, since the few providers could never complete Louisiana’s average need of 10,000 abortions per year.[13] Second, those individuals wanting an abortion would have to travel significantly long distances, which places a heavy burden on those most vulnerable, such as low-income women.[14] Third, with the limited supply of abortion providers, women seeking abortions may settle on an unsafe abortion measure.[15]
The District Court, in contrast, found no significant benefits to the Louisiana abortion statute. First, the court found that the state’s interest in protecting women’s health and safety is not advanced by the statute, since very few abortions have complications.[16] Second, the District Court found that the increased physician requirements would not benefit women’s health and safety because these physicians are already required to be licensed and remain disciplined.[17]
On September 26, 2018, the United States Court of Appeals for the Fifth Circuit reversed the judgment of the United States District Court for the Middle District of Louisiana, finding the Louisiana statute constitutional.[18] Although agreeing that Hellerstedt was the guiding precedent in the case, the Fifth Circuit reviewed the evidentiary record to conclude a different outcome.[19]
The Fifth Circuit contended that there were significant factual differences between the facts of this case and the facts in Hellerstedt. First, the Fifth Circuit found that geographical differences between the states of Louisiana and Texas made this statute constitutional.[20] The Fifth Circuit contended that people seeking an abortion in Louisiana, unlike those in Texas, will not have an increased driving distance because of the enactment of the statute.[21] Second, few Louisiana hospitals require a minimum number of patients for a physician to maintain admitting privileges, as opposed to the requirements in Texas hospitals.[22] In sum, the Fifth Circuit used an ad hoc test to determine the constitutionality of the Louisiana statute under the Hellerstedt framework.
Judge Patrick Higginbotham wrote a dissenting opinion in the Fifth Circuit decision.[23] Judge Higginbotham contended that the majority violated two of the major rules in judicial interpretation. First, Judge Higginbotham argued that the majority played the role of fact finder in its decision, a function left for the trial court below.[24] Second, he accused the majority of violating the rule of stare decisis for failing to fully apply the undue burden test laid out in Hellerstedt. He contended that the majority should have earnestly weighed the benefits and burdens of the statute, but failed to in its analysis.[25]
On January 18, 2019, the United States Court of Appeals for the Fifth Circuit denied a petition for rehearing en banc. That same month, the plaintiff applied to the United States Supreme Court for a stay to the Fifth Circuit’s decision until a ruling on a petition for certiorari, which was granted. June Medical Services filed a petition for certiorari on April 7, 2019.[26]
In its petition for a writ of certiorari, petitioner June Medical Services contends that the United States Supreme Court should summarily reverse the decision of the Fifth Circuit because that decision is clearly in conflict with the precedent set in Hellerstedt and therefore erroneous.[27] In the alternative, petitioner June Medical Services argues that clarify the constitutional law surrounding admitting privilege requirements and pertinent statutes.[28]
In the opposition brief, respondent Dr. Rebekah Gee as secretary of the Louisiana Department of Health and Hospitals contends that the United States Supreme Court should deny certiorari or at least should only clarify or narrow Hellerstedt.[29] To clarify Hellerstedt, respondent contends that the court should hold that the undue burden test is fact-specific or that the burden for facial invalidity requires an affect all women.[30] Interestingly, respondent Gee also files a cross-petition for the Court to address physician and clinics’ ability to sue on behalf of abortion patients in substantive due process claims.[31]
ANALYSIS
The Court is likely to overrule, or at the very least refine, the decision in Hellerstadt. The Court’s decision to hear the case is noteworthy. This time around the Court, as compared to the composition three years ago, has become more conservative with the addition of Justice Kavanaugh, who replaced Justice Kennedy. Justice Kennedy voted with the majority in Hellerstedt,[32] but with conservative Justice Kavanaugh now on the bench, that vote will likely swing in the other direction.
Another reason the Court is likely to overrule or narrow Hellerstedt is the decision of the Justices to hold hour long oral arguments on the merits. If the court wanted to solidify the precedent of Hellerstedt, then it would have summarily reversed the Fifth Circuit’s decision. With the oral arguments set, however, the court has chosen not to summarily reverse, which supports the Justices’ desire to narrow or overrule Hellerstedt.
Although the makeup of the United States Supreme Court and its posture since the petition for writ of certiorari strengthen the belief that the Court will overrule Hellerstedt, there is some hope that the court will go the other way. Abortion advocates point to Chief Justice Roberts’s decision to vote with the majority to stay the Fifth Circuit’s decision until after the filing of the petition for writ of certiorari as a sign that he may want to maintain judicial predictability and follow precedent. Additionally, the court may have granted certiorari to uphold its decision in Hellerstedt and instead focus on the cross-petition issue of whether a physician has the ability to sue on behalf of abortion patients. Either way, as we near oral arguments, more light will be shed on the matter.
[1] 905 F.3d 787 (2018).
[2] La. Stat. Ann. § 40:1061.10(A)(2)(a) (2019).
[3] Id.
[4] 136 S. Ct. 2292 (2016).
[5] Id. at 2314–16.
[6] Id. at 2309–10.
[7] Id. at 2310.
[8] Id. at 2300–01. The Supreme Court found that the Texas statute did not actually provide women having abortion complications easier access to hospitals. Id. at 2311. In fact, the Supreme Court found that there was little, if any, advancement in protecting women’s health. Id. On the other hand, the statute burdened women by reducing the number of abortion clinics in half, increasing waiting times, and crowding of abortion clinics. Id. at 2312–13.
[9] June Med. Servs. LLC v. Kliebert, 250 F. Supp. 3d 27, 88–89 (2017).
[10] Id. at 89.
[11] Id. at 87.
[12] Id.
[13] Id.
[14] Id. at 88.
[15] Id. at 86.
[16] Id. at 87.
[17] Id.
[18] Gee, 905 F.3d at 791.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. at 816-835 (Higginbotham, J., dissenting).
[24] Id. at 816 (Higginbotham, J., dissenting).
[25] Id. (Higginbotham, J., dissenting).
[26] Petition for Writ of Certiorari, June Medical Services (2019) (No. 18-1460).
[27] Id. at 32.
[28] Id. at 36.
[29] Brief in Opposition at 36-39, June Medical Services (2019) (No. 18-1323).
[30] Id.
[31] Id. at 1.
[32] 136 S. Ct. 2292 (2016).
