By Ethan Losier, Associate Editor
In June of 2014, Louisiana passed Act 620.[1] This law requires every physician who performs abortions to have “active admitting privileges” at a hospital within 30 miles of the facility in which the abortion is to take place.[2] Several health clinics and physicians who perform abortions have challenged Act 620, stating that the law imposes an “undue burden” on a woman’s right to an abortion.[3] This case—June Medical Services v. Gee—lies in the shadow of another similar United States Supreme Court case decided in 2016, Whole Woman’s Health v. Hellerstadt.[4] In that case, the Supreme Court held that admitting privileges required under a Texas state law, nearly identical to Act 620, did not advance a state interest in protecting women’s health but provided an additional barrier to the termination of a pregnancy in forcing around half of the clinics who practice abortions to close.[5] Whole Woman’s Health applied and upheld the undue burden standard as set out in Casey v. Planned Parenthood.[6]
The District Court in June Medical ruled that the admitting privileges implemented by Act 620 serve no relevant credentialing function, physicians are being denied due to “reasons unrelated to competency,” and this case falls squarely within the purview of Whole Woman’s Health.[7] The District Court also stated that Act 620 would “drastically burden women’s right to… abortions.”[8] The United States Court of Appeals for the Fifth Circuit overruled the decision, stating that the factual differences between June Medical and Whole Woman’s Health are “remarkabl[e]” and that clinics would probably not be forced to close as a result, and thus, there would be no undue burden.[9] June Medical can be distinguished from Whole Woman’s Health in that Louisiana, unlike Texas, requires all physicians who participate in medical procedures that may have complications to have admitting privileges to a nearby hospital, not just those who perform abortions. The Supreme Court then granted June Medical’s petition for certiorari.[10]
The petitioners argue that the Fifth Circuit incorrectly applied the undue burden standard because seeking admitting privileges at hospitals within 30 miles of the clinic would be extremely difficult and that the burden of the admitting privileges outweighs the risk of need for admitting privileges.[11] The focus of the argument seeks to emphasize the case’s similarities with Whole Woman’s Health and apply the doctrine of stare decisis.[12] In that case, the consequence posed by the law, specifically as to the admitting privileges alone, was around forced closure of approximately 50% of the abortion clinics in the state.[13] In this case, all three clinics in Louisiana are in jeopardy of forced closure.[14] Similarly, both Whole Woman’s Health and June Medical address the issue of admitting privileges. As such, the petitioners believe the Court should apply Whole Woman’s Health as controlling precedent to June Medical.[15] Further, in the alternative, if the Fifth Circuit was correct in finding that the burden is less severe than the law in Whole Woman’s Health, the law would still be unconstitutional.[16] The petitioners argue that the undue burden test still requires the court to balance access to pregnancy termination against a state’s legitimate interest.[17] Here, they say that even if minimal benefit is produced, the burden of the likely forced closure of all of the abortion clinics in Louisiana will outweigh it.[18]
Meanwhile, the State of Louisiana, argues that there are two main reasons that the Supreme Court should rule in its favor.[19] First, the petitioner lacks third party standing to sue on the behalf of the patients who would seek abortions.[20] The State argues that if the law does have some limitation of a woman’s right to an abortion, the clinic would not be able to bring the current case on their behalf due to a lack of proper third party standing, which requires a close relationship with the third party and a hinderance to the party represented to bring the suit on their own.[21] The State continues that Louisianan women seeking abortions would be able to challenge the law on their own and clinics should not have a right to be able to bring the cases on their own.[22] Second, the law is not unduly burdensome towards the right for a woman to seek an abortion.[23] The State argues that this case does not fall within the scope of Whole Woman’s Health because of the factual differences as to the law and that the Whole Woman’s Health case was to be applied on an individual case by case basis.[24] Alternatively, if the Supreme Court did find that Whole Woman’s Health was to apply, the June Medical situation does not violate the undue burden standard as the law does not create a substantial obstacle to abortion.[25]
At oral arguments on March 4, 2020, the Justices seemed fairly divided on the issues, each expressing their own concerns with the case. Justice Alito began with questions regarding the third-party standing issue and whether the clinics should truly have third party standing because their interests are in conflict with that of the patients that should have brought the claim.[26] Chief Justice John Roberts appeared to have trouble with the application of the Whole Woman’s Health’s/Casey undue burden test as to whether it should apply on a state by state basis or if there is general benefit or absence of a general benefit of this kind of law across all states in applying a nationally-reaching test to be applied in all state abortion questions.[27] Justice Kavanaugh questioned whether the law would be constitutional if the admitting privilege were an easier standard.[28] He was also concerned with whether the admitting privileges requirement has any valid purpose.[29] Justice Ginsberg did not see the reasoning behind the 30-mile limitation as she highlighted that potential complications resulting from the procedures do not present until some later point when the patient is unlikely to be within that 30-mile radius.[30] Justice Breyer was the most outspoken about the standing issue from the opposing view of Justice Alito addressing the issue through questioning pertaining to precedents and the overturning of multiple Supreme Court cases involving third party standing.[31] He also did not seem to understand why the Fifth Circuit felt that they had sufficient grounds to reverse the decision in the first place.[32] Justices Kagan and Sotomayor had the biggest problem with the law as it is applied.[33] Their conundrum was that if the law is to take effect, it is likely that all outlets for women seeking termination will be eliminated in the entire state of Louisiana.[34]
While the foremost controversial topic around this case is the implications of abortion regulations moving forward, arguably the biggest legal issue in this case is the one brought only before the Supreme Court: the standing of abortion providers to bring cases on the behalf of potential patients. If the Supreme Court finds that clinics no longer have the ability to bring such claims, how far will this decision extend? Justice Alito in his earlier referenced questioning suggested that the Supreme Court has been giving the clinics a carve out as to bringing claims and that the practice should be ended. Conversely, Justice Breyer stated that upholding this kind of thought process would overturn decades of precedent. In finding that the standing was invalid, the Supreme Court would be striking the case as a whole and figuratively punting the issue of a state’s abilities to regulate abortions in their states. It should be noted that this may be a way out for a potentially on-the-fence Justice.
The most talked about question by Supreme Court watchers is that presented by the petitioners in “whether the Fifth Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with this Court’s binding precedent in Whole Woman’s Health.”[35] First, the Court must address whether the Whole Woman’s Health/Casey undue burden test is still valid law. If the Court adheres to the doctrine of stare decisis and employs precedent, then it will address whether the test should be applied to all states with similar laws or if it should be a state by state evaluation, an issue given extreme deference to by Chief Justice Roberts.[36] Finally, once that determination is made, the Court will decide if the law, as applied, is truly unduly burdensome. More specifically, whether the admitting privileges requirement and its impact on Louisiana women’s right to an abortion amounts to an undue burden. In the background of such analysis is the fact that the three affected clinics would likely close because the doctors could not obtain admitting privileges due to the tough scrutiny implemented by Louisiana hospitals (patient admittance minimums, prejudice, etc.). Chief Justice John Roberts will be the decisive justice in this case. From every perspective, the Chief Justice will have to make a tough call. From whether or not to permit standing, whether the test should be applied state by state or a broad national standard, to whether the law meets the Whole Woman’s Health/Casey test of undue burden, Chief Justice Roberts will play a vital role that will shape the future of this type of litigation and his legacy as the highest judicial power in the United States.
In conclusion, the outcome of this case is likely to have extensive impact because a vast majority of states have similar admitting privilege laws on the books. If the standing issue is to be the deciding factor, then abortion cases moving forward will have to be brought by patients, which could be a mootness and ripeness issue as the case may evade review. Universally applied third party cases may have a different threshold they must face as well. If Whole Woman’s Health/Casey test is held to apply on a state-by-state basis, the Court will likely have petitions for writ of certiorari on this issue brought by a multitude of states in the foreseeable future. If the Whole Woman’s Health/Casey test is held to apply nationally and if the admitting privileges provision in the law is found to be unduly burdensome, the laws of many states will be unconstitutional in one fell swoop. No matter the outcome, this case will bring major change and as such has the attention of the nation.
Footnotes
[1] June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 790 (5th Cir. 2018), cert. granted, 140 S. Ct. 35 (2019), and cert. granted, 140 S. Ct. 35 (2019).
[2] La. Stat. Ann. § 40:1061.10.
[3] June Med. Servs. LLC, 905 F.3d at 791-801.
[4] Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016).
[5] See id. at 2310-14.
[6] Id. at 2300.
[7] June Med. Servs. LLC v. Kliebert, 250 F. Supp. 3d 27, 46 (M.D. La. 2017), rev'd sub nom. June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018).
[8] Id. at 88.
[9] June Med. Servs. LLC, 905 F.3d at 791.
[10] June Med. Servs. L.L.C. v. Gee, 140 S. Ct. 35 (2019).
[11] Brief for the Petitioner at 17, June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018) (No. 18-1323).
[12] See id. at 21-45.
[13] Id. at 7.
[14] Id. at 12.
[15] See id. at 21-26.
[16] See id. at 48-50.
[17] Brief for the Petitioner, supra note 11, at 49-50.
[18] Id. at 49-50.
[19] Brief for the Respondent/Cross-Petitioner at 23-25, June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018) (No. 18-1323).
[20] See id. at 25-53.
[21] See id.
[22] See id.
[23] See id. at 53-89
[24] See id. at 54-66
[25] Brief for the Respondent/Cross-Petitioner, supra note 19 at 72-89.
[26] Transcript of Oral Argument at 7-13, June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018) (No. 18-1323).
[27] Id. at 17, 36, 63.
[28] Id. at 18-19, 26-27.
[29] Id. at 67.
[30] Id. at 29, 34-35, 43-47, 57.-58
[31] Id. at 15
[32] See Transcript of Oral Argument, supra note 26 at 47-53.
[33] See id. at 24-28, 37-41, 42-46, 51-52.
[34] Id.
[35] Brief for the Petitioner, supra note 11, at i.
[36] Transcript of Oral Argument, supra note 26, at 17, 36, 63.