June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103
Opinion handed down June 29, 2020
By Lucy Downing
I. Introduction
In a five-four
decision, the United States Supreme Court struck down a Louisiana law requiring
physicians who provide abortions to obtain admitting privileges at a local
hospital. The Court held that the
Louisiana admitting privilege requirement, facially identical to a Texas law
the Court struck down four years ago in Whole Woman’s Health v. Hellerstedt,
was an undue burden on abortion access. However,
the Court missed an opportunity to meaningfully address how targeted
regulations of abortion providers (“TRAP laws”) like the admitting priviliges
requirement at issue work in the greater context of abortion restrictions to
gradually chip away at the abortion right.
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote
the plurality opinion.[1]
II. Background
In
June 2014, the Louisiana Legislature passed Act 620 which requires any
physician who performs abortions to hold “active admitting privileges at a
hospital that is located not further than thirty miles from the location at
which the abortion is performed or induced and that provides obstetrical or
gynecological health care services.”[2] To have “active admitting privileges,” a
doctor must be a member in good standing of the hospital’s medical staff with
the ability to admit a patient and to provide diagnostic and surgical services
to such patient.[3] Prior to Act 620’s passage, Louisiana law
already required abortion providers either to possess local hospital admitting
privileges or to have a transfer agreement with a physician who had such
privileges.[4] Act 620 removed that flexibility and attached
liability to physicians for failing to comply, possibly leading to “fines of up
to $4,000 per violation, license revocation, and civil liability.”[5]
Several
weeks before Act 620 was to take effect in September 2014, three abortion clinics
and two abortion providers filed a lawsuit in the United States District Court for
the Middle District of Louisiana alleging that Act 620 was unconstitutional as
an undue burden on their patients’ rights to obtain abortions.[6] The plaintiffs sought a temporary restraining
order followed by a preliminary injunction to prevent the law from taking
effect.[7] The State opposed the temporary restraining
order and urged the district court to hold a hearing on the preliminary
injunction as soon as possible, but conceded that the physicians clearly had
standing to bring suit.[8] Instead of ruling on whether to stay Act
620’s effective date, the district court temporarily prohibited the State from
enforcing the Act’s penalties and directed the plaintiff doctors to continue
their efforts to obtain conforming privileges while keeping the court informed
of their progress.[9]
III. Legal Background
In
June 2015, the District Court held a six-day bench trial on the preliminary
injunction.[10] After hearing live testimony from a dozen
witnesses and making extensive factual findings on the issue, the district court
declared Act 620 facially unconstitutional and granted the preliminary
injunction on its enforcement.[11]
The
State immediately appealed to the United States Court of Appeals for the Fifth
Circuit asking for a stay of the preliminary injunction, which the court
granted.[12] The U.S. Supreme Court then granted its own
stay at the plaintiffs’ request, leaving the district court’s injunction
intact.[13]
About
two months later, the U.S. Supreme Court issued its decision in Whole
Woman’s Health v. Hellerstedt, striking down a Texas law nearly identical
to the Louisiana law at issue here.[14] In Whole Woman’s Health, the Court
held that “unnecessary health regulations that have the purpose or effect of
presenting a substantial obstacle to a woman seeking an abortion impose an
undue burden on the right and are therefore constitutionally invalid.”[15] The Court then undertook a state-specific
analysis and assessed the asserted benefits and burdens of the law as it
operated in Texas.[16] Reviewing the record in that case, the Court held
that the Texas admitting privilege law did not further the State’s asserted
interest in women’s health because it provided no real health benefit—abortions
in Texas were extremely safe before the law’s passage, so there was no
health-related issue the law attempted to cure.[17] Futher, the law placed a substantial obstacle
in the path of Texas women seeking an abortion because half of the state’s
abortion clinics closed after the law went into effect.[18] The Court then struck down the Texas law,
reasoning that the obstacle, “when viewed in light of the virtual absence of
any health benefit, imposed an undue burden on abortion access in violation of
the Federal Constitution.”[19]
In light of Whole
Woman’s Health, the Court remanded this case to the Fifth Circuit for
reconsideration and the Fifth Circuit remanded to the district court for
further fact-finding and a ruling on the plaintiffs’ request for a permanent
injunction regarding Act 620.[20] The district court made extensive factual
findings on the Act’s purported benefits and its impact on women’s access to
abortion in Louisiana.[21] With respect to the Act’s asserted benefits,
the district court found that: (1) abortion in Louisiana “has been extremely
safe, with particularly low rates of serious complications”; (2) it “rarely . .
. is necessary to transfer patients to a hospital”; and (3) “whether or not a
patient’s treating physician has admitting privileges is not relevant to the
patient’s care.”[22] Accordingly, the district court found there
was “no significant health-related problem that the new law helped to cure,”
and, thus, there was “no credible evidence in the record that Act 620 would
further the State’s interest in women’s health beyond that which is already
insured under existing Louisiana law.”[23]
As
to the Act’s burdens on women’s access to abortion, the district court found
that the approximately 10,000 women who obtain abortions in Louisiana each year
are served by six doctors at five abortion clinics, and that by the time of its
decision, two of those clinics had closed and one of the doctors had retired,
leaving only five physicians in the entire state who perform abortions, most of
whom were unable to obtain admitting privileges required by Act 620.[24] The district court further found that the
doctors’ inability to obtain privileges was “caused by Act 620 working in
concert with existing laws and practices, including hospital bylaws and
criteria that preclude or, at least greatly discourage, the granting of
privileges to abortion provers.”[25] Thus, enforcing the Act would “result in a
drastic reduction in the number and geographic distribution of abortion
providers . . .” and prevent many women seeking a safe, legal abortion in
Louisiana from obtaining one.[26] The district court added that “Act 620 does
not advance Louisiana’s legitimate interest in protecting the health of women
seeking abortions. Instead, Act 620 would
increase the risk of harm to women’s health by dramatically reducing the
availability of safe abortion in Louisiana.”[27] Moreover, the court found no legally
significant distinction between Act 620 and the Texas law struck down in Whole
Woman’s Health because Act 620 was modeled after the Texas law, functions
in the same manner, and similarly imposes significant obstacles to abortion
access with “no countervailing benefits.”[28] Accordingly, the district court declared Act
620 unconstitutional and entered a permanent injunction forbidding its
enforcement.[29]
The
State appealed, and the Fifth Circuit reversed the district court’s decision.[30] The Fifth Circuit disagreed with nearly all
of the district court’s findings regarding Act 620’s burdens, and it differentiated
the Act from the Texas law at issue in Whole Woman’s Health concluding
that the burden Act 620 imposes on abortion access is “dramatically less” than
that imposed by the Texas law.[31] In terms of the Act’s asserted benefits, the Fifth
Circuit argued that, “unlike Texas, Louisiana presents some evidence of a
minimal benefit,” despite the district court’s contrary finding that the law
provided no real health benefit to women.[32]
The
U.S. Supreme Court then issued a stay of the Fifth Circuit’s reversal at the
plaintiffs’ request and granted certiorari to address the Fifth Circuit’s
decision on the merits.[33] The Court also granted the State’s
cross-petition for certiorari challenging the plaintiff’s standing to bring the
action.[34]
IV. Instant Decision
The
opinion first addressed the State’s argument that the plaintiff physicians lacked
standing to bring suit on behalf of their patients. The Court held that the State waived that
argument when it conceded the physicians’ standing at the district court in order
to obtain a quick decision on the merits.[35] Further, the Court pointed out its long-standing
precedent of allowing abortion providers to invoke the rights of their actual
or potential patients in challenges to abortion-related regulations.[36]
Turning
to the merits, the opinion reiterated the proper standard for assessing
abortion regulations: “a statute which, while furthering a valid state interest
has the effect of placing a substantial obstacle in the path of a woman’s
choice cannot be considered a permissible means of serving its legitimate
ends.”[37] Further, “unnecessary health regulations
impose an undue burden if they have the purpose or effect of presenting a
substantial obstacle to a woman seeking an abortion.”[38] Noting that the Fifth Circuit did not take
issue with the legal standard used by the district court so much as the factual
findings it used in reaching its decision, the Court emphasized that “a
district court’s findings of fact, whether based on oral or other evidence,
must not be set aside unless clearly erroneous, and the reviewing court must
give due regard to the trial court’s opportunity to judge the witnesses’
credibility.”[39] This is a highly deferential standard, and a
court of appeals may not reverse a plausible account of the evidence given the
record, even if it would have weighed the evidence differently if it had been
sitting as the trier of fact.[40]
With
that standard in mind, the Court then carefully assessed whether the district court’s
findings were sufficient to support its conclusion that Act 620 was
unconstitutional.[41] It concluded that, in light of the record,
“the District Court’s significant factual findings—both as to burdens and as to
benefits—have ample evidentiary support.
None is ‘clearly erroneous.’”[42] The Court further concluded that “[t]his case
is similar to, [and] nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar
conclusion. Act 620 is
unconstitutional.”[43]
V. Comment and Conclusion
While
the Court’s decision ended up striking down Louisiana’s admitting privilege
requirement, its continued use of a state-specific analysis leaves the door
open for states to continue strategically restricting abortion using the
argument that each state is different. TRAP
laws such as the admitting privileges requirement at issue do not further a
legitimate interest in women’s health.[44] The American Medical Association, American
Public Health Association, and American College of Obstetricians and
Gynecologists oppose these restrictions, recognizing that they serve no
legitimate purpose.[45] Today, abortion procedures are generally
quite safe, and TRAP laws ostensibly enacted under the guise of furthering
women’s health do no more than subject women to more health risks by making the
process of obtaining an abortion more burdensome.[46]
In practice, TRAP laws further strategic
legislative goals of eroding the abortion right into nonexistence.
While admitting
privilege requirements have been struck down twice by the Court and blocked in
eight states, they are currently still in effect in Missouri, North Dakota, and
Utah.[47] In Missouri, for example, the admitting
privilege requirement acts as one piece of a complicated web of restrictions designed
to make access to abortion more difficult.[48] Other anti-abortion measures in Missouri
include strict limits on insurance coverage of abortion, a parental consent
requirement for minors, a mandate doctors counsel patients in a way that is
intended to dissuade them from obtaining the procedure, a mandatory
seventy-two-hour waiting period between clinic visits, and other similar
restrictions.[49] As the first state to enact an admitting
privilege requirement, Missouri has proven this strategy quite effective as the
state is down to one remaining abortion clinic.[50] However, Missouri is not the only state using
this tactic.[51] While the Court saw the Louisiana law for
what it really was, the opinion was limited to Louisiana and failed to
meaningfully address how admitting privilege requirements fit into the
framework of anti-abortion legislative strategies. Thus, states like Missouri will likely
continue legislating to incrementally strip away abortion access.
[1]
While Justice Roberts filed a concurring opinion and Justices Thomas, Alito,
Gorsuch, and Kavanaugh each filed dissenting opinions, this article focuses on
the plurality opinion.
[2]
June Medical Services L.L.C. v. Russo, 140 S.Ct. 2112 (2020).
[3] Id.
at 2113 (quotations omitted).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
at 2113–14.
[9] Id.
at 2114.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Whole
Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016).
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id..
[20] June
Medical Services L.L.C. v. Russo, 140 S.Ct. 2112, 2113–14 (2020).
[21] Id.
at 2114-16.
[22] Id.
at 2114–15 (quotations omitted).
[23] Id.
at 2115 (quotations omitted).
[24] Id.
[25] Id.
(quotations omitted).
[26] Id.
at 2115–16.
[27] Id.
at 2116.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
at 2117.
[34] Id.
[35] Id.
at 2117–18.
[36] Id.
at 2118-19.
[37] Id.
(quotations omitted).
[38] Id.
(quotations omitted).
[39] Id.
at 2121 (quotations omitted).
[40] Id.
[41] See
id. at 2122–32.
[42] Id.
at 2132.
[43] Id.
at 2133.
[44] See
Elizabeth Nash & Megan Donovan, Admitting Privileges Are Back at the
U.S. Supreme Court with Serious Implications for Abortion Access, Guttmacher Inst. (last visited Sept. 18,
2020), https://www.guttmacher.org/article/2019/10/admitting-privileges-are-back-us-supreme-court-serious-implications-abortion-access.
[45] Id.
[46] Id.
[47] Id.
[48] See
A Dark Milestone for Women’s Rights: A State With No Abortion Clinics, N.Y. Times (May 28, 2019), https://www.nytimes.com/2019/05/28/opinion/missouri-abortion-clinic.html.
[49] Id.
[50] Id.
[51] See
id.
