Symposium: Undue burden, balancing test or bright line? Court should take the Louisiana admitting-privileges case to clarify the meaning of Whole Woman’s Health

Catherine Glenn Foster is the president and chief executive officer of Americans United for Life.

The U.S. Supreme Court’s last pronouncement on abortion came in 2016, in the jurisprudential netherworld between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch. Whole Woman’s Health v. Hellerstedt invalidated portions of Texas’ HB 2, including a requirement that doctors performing abortions maintain patient-admitting privileges at a hospital within 30 miles of their abortion facility. This requirement, according to the Texas legislature (to which the Supreme Court would have owed deference under the previous iteration of the “undue burden” test in Gonzales v. Carhart in 2007), was “reasonable and medically necessary” to “improve the post-operative management of serious post-abortion complications.” The Supreme Court majority didn’t see it that way, invalidating the measure 5-3 as an “undue burden” on abortion access. Justice Stephen Breyer, writing for the majority, appeared to characterize the court’s newfound test for assessing the constitutionality of abortion as a form of balancing test. The law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Breyer maintained.

The result was hailed as a landmark victory by abortion advocates. And what could be better for those advocating for unhindered access to abortion than a constitutional “test” that invites any of the hundreds of active federal judges to declare that the “burdens” on abortion access imposed by a given abortion regulation outweigh its benefit? Indeed, the Supreme Court is styling the federal judiciary as a “national abortion control board,” as it was described by Justice Sandra Day O’Connor. And the Hellerstedt regime has steadily inflated the footprint of “undue burden” into new areas, turning juridical terra firma into quicksand and reviving the noisome hum of what Scalia called the “abortion post hoc nullification machine.” In the wake of Hellerstedt, federal courts have employed its eminently pliable test to invalidate laws previously held constitutional, such as parental notice laws, outpatient surgical regulations, and even, in one case, a prohibition on taxpayer funding of elective abortion.

Enter Louisiana, which (along with Mississippi) has continued to litigate its similar admitting-privileges requirement for abortion doctors after (and some would say in spite of) Hellerstedt. (Alabama and Wisconsin threw in the towel on defending theirs.) A full bench trial in 2015 (full disclosure – AUL’s now-general counsel Steven Aden was co-counsel for Louisiana), followed by re-briefing after Hellerstedt, resulted in a well-documented and carefully vetted record and argument.

Louisiana correctly argued that Hellerstedt did not mean that all admitting privileges laws are per se unconstitutional. Nor was there sufficient evidence that Louisiana’s law would close a large number of abortion facilities in Louisiana. The state took the Hellerstedt majority at its word, arguing that determining the impact of an abortion regulation is a fact-intensive inquiry that requires state-specific evidence that the law causes a substantial obstacle. In this case, the record was mixed; one abortion doctor had privileges, another one quit the practice for his own reasons, and another had his privileges deemed sufficient to satisfy the law (over the plaintiffs’ objection). In the end, abortion was still available in at least two geographically disparate locations in Louisiana, obviating the need for a “large fraction” of women to have to drive long distances to access abortion.

The district judge in Baton Rouge nonetheless ruled against the state, but the U.S. Court of Appeals for the 5th Circuit upheld the law 2-1, relying on “stark differences” between the facts and evidence in the Texas case and the facts and evidence in Louisiana’s case. Unlike in Texas, the appeals court said, there was no evidence that any abortion facility would close in Louisiana as a result of the law. June Medical Services appealed to the full 5th Circuit, but the en banc court voted 9-6 to deny rehearing.

Planned Parenthood sought an emergency injunction in the Supreme Court, and the court granted the request 5-4 on February 7, just hours before Louisiana’s admitting privileges law would have gone into effect. The hold on Louisiana’s law will automatically be lifted if the case is not timely appealed, if the Supreme Court decides not to take the case after all, or when the court issues a final judgment after hearing the case. As is typical for an emergency proceeding, the Supreme Court gave no rationale for its decision. Despite dissenting in Hellerstedt, Chief Justice John Roberts joined the court’s more liberal justices in (presumably) agreeing that there was a “reasonable probability” the court will agree to take the case and ultimately find the law unconstitutional.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have denied Planned Parenthood’s request and let Louisiana’s law go into effect. Kavanaugh wrote in dissent that there are many “factual uncertainties” involved in the case, and argued there is no reason at this time for the Supreme Court to put the law on hold because if abortion doctors in Louisiana are really unable to obtain admitting privileges, they can file an as-applied challenge later.

Because of the procedural posture of the case, June Medical Services will likely petition the Supreme Court to hear the merits and to permanently enjoin Louisiana’s law. At that point, the justices will have more time to look at all of the specific factual nuances in the case. Once they do, Americans United for Life is confident that the justices will vote to uphold Louisiana’s common-sense safety measure that will protect Louisiana women from substandard abortion doctors. Further, the case offers the Supreme Court – with a newly minted constitutionalist majority on the dais – the opportunity to revisit Hellerstedt’s “thumb-to-the-wind” test and clarify that state laws may not be struck down simply because a federal court finds them to be marginally burdensome for abortion access. The truth is that Hellerstedt has prolonged and exacerbated the national confusion over what kinds of health and safety laws are permissible. It’s time to get the Supreme Court out of the business of overseeing the “national abortion control board” and to restore this sensitive and politically polarizing issue to the states and the people – where it has always belonged.

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Past cases linked to in this post:

Gonzales v. Carhart, 550 U.S. 124 (2007)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)