Symposium: How to count to one

John Knepper is a private attorney based in Cheyenne, Wyoming. He previously was chief deputy attorney general of Wyoming. He filed an amicus brief on behalf of the Susan B. Anthony List in support of the respondent in June Medical Services v. Russo.

Marks v. United States instructs that when a majority of the justices cannot agree on more than the outcome, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Much of the immediate analysis of June Medical Services v. Russo has therefore focused on Chief Justice John Roberts’ concurring opinion. Indeed, the chief’s concurrence makes it difficult not to consider the effect of his opinion: He cites Marks in a footnote when discussing Planned Parenthood v. Casey.

The chief justice is not the most important jurist in this case, however. That honor goes to the district court judge in the Middle District of Louisiana. Both Justice Stephen Breyer, writing for a four-justice plurality, and the chief defer to the district judge’s findings of fact as dispositive. That judge’s view of the world-as-it-exists can be challenged only when “clearly erroneous.” And according to the five justices who voted to strike down Louisiana’s abortion law, the mistake made by the U.S. Court of Appeals for the 5th Circuit was a lack of proper respect for the district court’s findings of fact.

For the plurality, the six-day bench trial on the motion for a preliminary injunction established that Louisiana has “no significant health-related problem that the new law helped to cure.” The chief justice views this fact as irrelevant. Nothing in Whole Woman’s Health v. Hellerstedt or Casey calls for analysis of the benefits of regulation.

The district court also held, however, that Louisiana’s law burdens the abortion right because four of the state’s full-time abortion providers are unable to obtain admitting privileges at nearby hospitals. And even if the abortion providers could obtain admitting privileges, the plurality questions whether they would be able to maintain this affiliation if they provided abortions only at off-site locations.

Bound by the factual findings of the district court, the chief justice concurs.

The chief justice notes that the legal requirements of the Louisiana law are nearly identical to those of the Texas law that was struck down in Whole Woman’s Health, but it is not clear how this is relevant to his concurrence. In response to the dissenters, he explicitly agrees every litigant should have a fresh opportunity to litigate the facts of a new case. The risk of inconsistency—different results for similar state laws—arises not from Louisiana’s policy choices but from the Supreme Court’s decision in Whole Woman’s Health. That decision was explicitly an as-applied challenge. The court could not consider broader, pre-enforcement issues because the Texas plaintiffs had already lost a pre-enforcement challenge and had abandoned their appeal.

The chief justice’s motivating concern appears to be that the federal district court found that the effect of the Louisiana law would be at least as restrictive as the Texas law. This was enough. The district court’s decision displays no clear error, so its conclusions about the Louisiana law’s effects “bind us in this case.” “I cannot view the record here as in any pertinent respect sufficiently different from that in Whole Woman’s Health to warrant a different outcome,” the chief writes.

As Justice Samuel Alito points out, however, the critical factual determination in June Medical is not whether every Louisiana abortion provider obtained admitting privileges at a nearby hospital. Several have not yet done so. The question is whether the abortion providers will ever be able to obtain admitting privileges. On this point the record is murky. The abortion providers are not identified, and neither are the faceless hospital employees who—in the view of the district court—made the credentialing process “Kafka-esque.” (As an attorney who has been involved in health care law from several perspectives, I would ask the participants whether this is their first experience with the American health care system.)

Properly understood, the critical fact decided by the district court is not a fact in the world-as-it-exists at all. It is a prediction that abortion providers cannot survive the law’s new regulatory requirements. And the merit of this prediction depends on one’s perception of the hospital committees that review applications for admitting privileges.

For the plurality, the physicians on these committees are, at best, economic protectionists working to limit competition and ensure that insurance reimbursements for follow-up care flow to their own coffers. They may also be, the plurality suggests, anonymous non-government actors who have been stealthily empowered to eliminate abortion services altogether.

For three members of the dissent, privilege review committees are one of the many processes mandated by the federal government to improve patient care and reduce medical errors. (Antitrust attorneys, take note: the justices may be unanimous in the view that economic protectionism is a poor reason to deny hospital admitting privileges.) When one provider steps away, another physician will see an opportunity to earn money. The record in this case shows, for example, that two Louisiana abortion providers were an ophthalmologist and a radiologist, respectively. These physicians chose to re-orient their careers, and others might choose the same path. The review by privileges committees ensures quality health care by physicians who have relevant training and experience.

This is the real difficulty with June Medical. The chief justice’s view of stare decisis is “contextual.” It is fact-specific. In Louisiana, the district judge decided the facts, and his vision of Louisiana health care is the only one that matters. The logical question for other litigants is: Who will decide the facts in my case? The most celebrated factfinder in our constitutional framework is the jury, but the Supreme Court’s Seventh Amendment jurisprudence permits litigants to avoid a jury by seeking only an injunction. It is not at all clear that the defendants could have demanded a jury trial for the facts here.

The horn has sounded, and the race to the courthouse has begun. Forum selection has always been part of case analysis, but now it is essential. June Medical makes the district court’s factual predictions so critical that it would be irresponsible not to consider every option. While it is too early to know how litigants will react, one should not expect the states to continue to passively defer to abortion providers in the choice of venue.

Forum selection will be important for another reason as well. In dissent, Justice Clarence Thomas points out that, just two months ago, in Ramos v. Louisiana, three justices rejected the Marks analysis. They concluded that, in some cases, a concurrence may be so different from the plurality that the court has no controlling opinion at all. Abortion providers will undoubtedly cite Ramos to argue that the chief justice’s concurrence in June Medical is entitled to no weight. And they will renew their argument that Whole Woman’s Health created a new paradigm for abortion litigation. This legal argument will be decided, in the first instance, by a district court judge.