Symposium: The rule of law is at stake — the Supreme Court must take June Medical Services v. Gee and uphold the right to abortion

Fatima Goss Graves is the president and CEO of the National Women’s Law Center.

June Medical Services v. Gee – the outrageous decision by the U.S. Court of Appeals for the 5th Circuit upholding an anti-abortion Louisiana law – is not just a threat to access to healthcare, but a blatant disrespect of legal precedent and the rule of law. The Louisiana law is identical to – and in fact was modeled after – a Texas law that the Supreme Court struck down in 2016. If the Supreme Court truly wishes to protect the integrity of the court, it must take June Medical Services v. Gee.

The Louisiana law at issue requires abortion providers to have admitting privileges at a local hospital. This targeted regulation of abortion providers (TRAP) is a strategy devised by anti-abortion politicians and activists as a way to shut down clinics through laws and regulations that have nothing to do with medical care and everything to do with making an end run around Roe v. Wade, and eliminating the possibility of women being able to obtain an abortion. The question of whether these types of restrictions can survive has been asked and answered. Just three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down two Texas TRAP laws – including one identical to the Louisiana law at issue in this case.

In Whole Woman’s Health, the Supreme Court clarified that when assessing the constitutionality of an abortion restriction, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The court held that admitting-privileges requirements have no health benefit to the woman, but instead place “a substantial obstacle in the path of a woman’s choice.” These requirements force clinics to close, which means “fewer doctors, longer waiting times, and increased crowding” along with additional travel and driving distances. The court considered nationwide data, as well as the views of the American Medical Association, American College of Obstetricians and Gynecologists, and hospital associations, all of whom were unanimous in the view that these laws are not necessary. Taking these burdens together and balancing them against the lack of health benefit, the court struck down the Texas admitting-privileges law as unconstitutional.

Following the decision in Whole Woman’s Health, a district court judge – in a careful, thorough, and detailed 116-page decision – found that the Louisiana law provides no benefits to women’s health but rather imposes serious burdens on a woman’s ability to decide whether to obtain an abortion. The law would force two of the remaining three clinics in the state to close and leave only one doctor providing abortions to Louisiana’s entire population. As a result, the judge remarked, “a substantial number of Louisiana women” would be “unable to obtain an abortion in this state.” And those who could still access abortion would be subject to longer delays, increased travel obstacles and other burdens, which would fall most heavily on women who struggle to make ends meet and others who already face barriers to health care. The district court struck down the law as unconstitutional, finding that the burdens vastly outweighed the nonexistent benefits. There was nothing surprising in the decision; it carefully followed the guidance already set out by the Supreme Court and was consistent with decisions of other courts considering admitting-privileges requirements post-Whole Woman’s Health.

On appeal, two 5th Circuit judges held otherwise, in an opinion that took pains to justify flouting Whole Woman’s Health. The extraordinary decision revisited facts, cherry-picked evidence, and misstated and misapplied the relevant legal standard. It reviewed evidence already carefully considered by the district court and reversed the district court’s findings of fact – something circuit courts are generally not permitted to do, and which a dissenting judge referred to as “egregious.” It invented a new justification for the Louisiana law, even though that justification had already been rejected by the Supreme Court in Whole Woman’s Health. It imposed a new standard of proof on the plaintiffs – more demanding than the one the court applied in Whole Woman’s Health. Perhaps most tellingly, the judges advanced an already rejected interpretation of the undue-burden standard. In the judges’ view, the law – which the panel majority conceded was medically unnecessary – was nevertheless constitutional. And in so doing, the opinion ignored the very real and critical impact on women in Louisiana.

The decision in June Medical Services revives a strategy to end safe, legal abortion in this country. It is a strategy of undermining Roe v. Wade and the constitutional right to abortion – without even asking the Supreme Court to overrule it. It is a strategy that professes to uphold the right to abortion but narrows that right so considerably that it is meaningless. By the 5th Circuit’s logic, an abortion restriction can stand even when every judge to consider it – from the district court to the panel majority and dissenters – agrees that it lacks a health benefit to the woman and will impose limits on access.

Of course, the effect on individuals in this country is largely the same – a tortured reading of the Supreme Court’s past precedent can be just as harmful as overturning Roe altogether. This has been painfully clear in states across the country, where anti-abortion legislatures have continually passed laws to restrict abortion. Since 1973, states have adopted over 1,100 abortion restrictions, with over 420 enacted in just the last eight years. And while some have been challenged in court, most are in effect, meaning that for too many people – especially low-income individuals, those who live in rural areas, and communities of color – the right to safe, legal abortion is simply a pipe dream.

If the Supreme Court lets the 5th Circuit decision stand, it will give a green light to other lower courts to uphold a range of abortion restrictions that will make the right to abortion meaningless for many more individuals across the country. There is some indication that at least four of the justices are ready to do just that. Upon receiving the emergency petition to put a temporary hold on the law, newly confirmed Justices Neil Gorsuch and Brett Kavanaugh sided with Justices Samuel Alito and Clarence Thomas, meaning they would have allowed the law to go into effect. Make no mistake: In so doing, these two new justices signaled their willingness to reconsider the right to abortion, despite their promises to respect precedent, and despite the Supreme Court’s reaffirmation of the right to abortion less than three years ago.

Already state politicians are feeling emboldened by the promise of a Supreme Court that will overturn Roe or severely gut its protections. If the rule of law matters in this country, the court will ignore those political pleas.

Although denying certiorari in this case would do serious damage to abortion access and the rule of law, the Supreme Court need not make any new law in order to correct the 5th Circuit’s error. The court can simply grant certiorari and reverse the 5th Circuit’s decision without briefing and oral argument, a streamlined procedure that the court has used in the past when a lower court has so clearly departed from binding precedent.

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Past cases linked to in this post:

Roe v. Wade, 410 U.S. 113 (1973)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)