Symposium: June Medical should be summarily reversed

Jonathan B. Miller is Chief of the Public Protection & Advocacy Bureau in the Office of the Massachusetts Attorney General. The views expressed here do not necessarily represent the views of the Massachusetts Attorney General or the Office.

June Medical Services, LLC v. Gee potentially presents an opportunity for the newest lineup of the Supreme Court, including Justice Brett Kavanaugh, to revisit constitutional protection of abortion. In a move that surprised many, the justices stayed the U.S. Court of Appeals for the 5th Circuit’s reversal of the district court’s injunction against enforcement of Louisiana’s Act 620, which requires any doctor performing abortions to have admitting privileges at a local hospital, while the case remains pending in the Supreme Court. Chief Justice John Roberts joined the four liberal justices in reaching this outcome, prompting speculation that the chief’s concern for the integrity of the institution resulted in a switch from his dissenting vote in Whole Woman’s Health v. Hellerstedt, in which the court struck down an admitting-privileges requirement in Texas less than three years ago. For these same reasons – preserving the Supreme Court’s integrity and ensuring that the lower courts do not flout precedent now that the composition of the court has changed – the chief should join the four liberal justices in summarily reversing the decision below.

The court need not retrace its steps in a case identical to one decided so recently. Laws requiring admitting privileges do not enhance patient safety – in fact, developments since WWH cast further doubt on thin claims to the contrary. Plus, this case was very clearly wrongly decided. The 5th Circuit cast its second-guessing of the district court as “[m]irroring” the Supreme Court’s analysis in WWH. But the split decision tries too hard to make a case indistinguishable from WWH somehow look different. There is also recent precedent upon which the chief can rely. In American Tradition Partnership Inc. v. Bullock, the court, with the chief in the majority, summarily overturned a Montana Supreme Court decision that had sought to distinguish a 1912 voter-approved state ban of corporate contributions from the federal restriction at issue in Citizens United v. Federal Election Commission. Bullock was decided only two years after Citizens United.

Summary reversal – that is, reversal without briefing and oral argument – is particularly appropriate because the underlying rationale for laws such as Act 620 is so weak. In WWH, the Supreme Court concluded that “nothing in Texas’ record evidence that shows that … the new law advanced Texas’ legitimate interest in protecting women’s health.” If anything, the empirical basis for such a conclusion has only strengthened since 2016. Last fall, the Trump administration proposed new rules for the Centers for Medicare and Medicaid Services in an effort to “reform Medicare regulations that are identified as unnecessary, obsolete, or excessively burdensome on health care providers and suppliers.” Among other things, this regulatory clean-up covered certain requirements for ambulatory surgical centers (ASCs), which include abortion clinics in some states. Regulations dating back to 1982 have required ASCs either to have written transfer agreements with hospitals or to employ physicians with admitting privileges in order to qualify for reimbursement. Under the proposed rules, these requirements would end. As the proposed rules explain, “we have seen no evidence of negative patient outcomes due to a lack of such transfer agreements or admitting privileges.” As further support for this regulatory relaxation, the administration also points to the challenges ASCs have faced in obtaining admitting privileges. Apparently, the problem is not unique to abortion practitioners.

In its decision, the 5th Circuit failed to connect admitting privileges and improved patient safety. Mostly its discussion focused on hospitals’ more rigorous credentialing of providers, and its supposition that such private screening would inherently improve patient care. With all of that said, the 5th Circuit explained that the district court did not clearly err in concluding that “Act 620 provides minimal benefits[.]”

Even in making that concession, the panel opinion did not meaningfully grapple with the realities of health-care delivery that undercut the need for Act 620’s restrictions. States regulate doctors and require them to meet certain standards to have a license to practice, irrespective of the facility in which they practice. As a matter of logistics, the physician performing an abortion at an outpatient health-care facility is highly unlikely to be the treating physician at the hospital. For example, many women end their pregnancies through medication rather than surgery. Complications such as excessive bleeding are more likely to arise at home and if hospital-based care is needed, the patient will go to a local emergency room. In that scenario, the chances are quite low that the geographically convenient hospital for the patient and the hospital where the clinic physician has admitting privileges would be one and the same. Additionally, there is no risk that patients facing complications will be refused care. Under the federal Emergency Medical Treatment and Labor Act, hospitals are required to provide treatment to patients who present to their emergency rooms. Beyond all of this, abortions are safe procedures, which minimizes the need for additional restrictions and requirements in the first place.

Summary reversal also is appropriate because the 5th Circuit went too far with its extensive critique of the physicians’ good-faith efforts to obtain admitting privileges. As an initial observation, a difference in scale seems to have allowed the 5th Circuit to engage in a tougher review than the Supreme Court’s inquiry in WWH. The Supreme Court had before it evidence that Texas’ admitting-privileges requirement reduced the number of abortion clinics in the state from 40 to less than 10. The impact spoke for itself, and any exercise seeking to call into question the basis for 30 clinic closures would have bordered on the absurd. Here, instead, the 5th Circuit had much more limited ground to cover and far fewer causal links to sever. As the decision explained, “[t]he paucity of abortion facilities and abortion providers in Louisiana allows for a more nuanced analysis of the causal connection between Act 620 and its burden on women[.]” Laws that are so similar, however, should not be analyzed so differently.

The intense second-guessing of the district court’s factual findings (which are supposed to get deference) was clear error. The district court fairly evaluated the efforts of doctors to come into compliance with a law that has never been in effect, that most of the physicians did not believe they could comply with as a practical matter, and that they knew was designed to have the same effect as H.B. 2 in Texas (because Act 620 was passed a year later). By contrast, the 5th Circuit’s review of the record impliedly required these physicians to prove a negative – that they cannot get credentialed at any qualifying hospital. In so doing, the 5th Circuit at times determined that particular physicians are not burdened or overly burdened by Act 620. Of course, the constitutional question is whether women experience an undue burden.

The panel majority’s critical view of these physicians and their attempts was echoed by Kavanaugh in his dissent from the grant of the stay. In his view, we do not yet know the impact of Act 620, because it has not gone into effect. Perhaps, once the law is in effect, the doctors will be able to comply. I believe we already do know the effect, because Act 620 was designed with a specific purpose: the inevitable closure of clinics and the loss of providers due to their inability to meet the admission-privileges requirement. Letting the law go into effect means irreparable and irreversible harm to the delivery of care to women in Louisiana.

There would be rich irony in allowing this type of targeted regulation of abortion providers (TRAP) law to stand. Over time, more and more abortion facilities became free-standing clinics owing to, among other things, the stigma associated with performing abortions and the unwillingness of certain hospitals to have them performed onsite. Now, when the federal government is poised to remove the need for admission privileges for ASCs, triggering the shutdown of these clinics because providers are unable to reconnect with hospitals is both unjust and an affront to the constitutional rights of women. The 5th Circuit did not properly apply WWH and wrongly decided this case. The Supreme Court should summarily reverse.

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Past cases linked to in this post:

American Tradition P’ship Inc. v. Bullock, 132 S. Ct. 2490 (2012)
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)