June Medical Services v. Russo

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Argument: March 4, 2020

Petitioner (Cross-Respondent) Brief: June Medical Services, et al.

Respondent (Cross-Petitioner) Brief: Stephen Russo

Decision: TBA

Court below: Fifth Circuit Court of Appeals

Court below: Fifth Circuit Court of Appeals

The Supreme Court Could Restrict Doctors’ Rights to Sue on Behalf of Women Seeking Abortions

This week the Supreme Court will hear arguments from Louisiana and a group of medical providers about the legality of a Louisiana regulation on abortion providers. The law at issue requires that abortion providers have hospital admitting privileges within 30 miles of the locations where they perform abortions. 

The law is not new to the Supreme Court, but the state defending it is. Texas passed the same law years back and in 2016 the Supreme Court ruled that it was illegal (Whole Woman’s Health v. Hellerstedt). The Constitution, the Court said, does not allow states to put a “substantial obstacle” on women’s access to abortion. The Texas law had done so, and the Court required Texas to take it off the books. 

June Medical Services v Russo

In this case, Louisiana will have to convince the Court that its law — or at least the effect of it — is different from the law in Texas. However, in an effort to avoid reaching that aspect of the case, Louisiana brought its own petition asking the Court to address a “standing” argument first.

Standing: Do the doctors have the right to bring this case?

The Constitution does not allow just anyone to bring a court case. The party bringing the court case must be the party who was harmed, or stands to be harmed, by the challenged action. If my cousin signed a deceitful credit card contract, I can’t bring a case against the credit card company. My cousin has to do it.

In this case, Louisiana argues that the doctors who brought the lawsuit do not have proper “standing.” The doctors claim the law violates their patients’ constitutional rights to have access to abortions. Louisiana says, well, then let the patients bring the suit; we don’t even know if the patients take issue with the law. 

Supporters of the doctors’ position argue that Louisiana’s standing argument is inapplicable because in this case the doctors will in fact face injury under the law. Louisiana’s law punishes doctors who violate the law with imprisonment, civil liability, license revocation and fines. Even though the doctors are bringing claims based on the constitutional rights of their patients, the law still harms them directly.

Louisiana wants the Court to evaluate the standing inquiry based on a framework set out in a 2004 case, Kowalsi v. Tesmer. Kowalski limited third party standing to those cases in which the plaintiff (1) has a “close” relationship with the third party and (2) the third party suffers a “hindrance” to asserting her own rights. The state argues neither of these factors is satisfied here: the doctors do not have a “close” relationship with their patients (“the relationship between Plaintiffs and their patients is not only attenuated, but also riven with conflicts”) and the patients could very well bring the cases on their own (they can use pseudonyms to avoid public attention and they have in fact brought such challenges in the past).

Distinguishing Whole Woman’s Health

If the Court permits the doctors to bring the case, it will address the substance of the doctors’ appeal. Did the Fifth Circuit violate precedent (Whole Woman’s Health) in ruling the Louisiana law valid?

Louisiana’s task of distinguishing this case from Whole Woman’s Health is a tough one. The law is identical to the one Texas passed in Whole Woman’s Health. Both of them require doctors to get admitting privileges at hospitals within 30 miles of the locations where they perform abortions. Thus Louisiana has no chance based on the text of the law alone. The state must argue the effect of the law is different in Louisiana. 

The Fifth Circuit Court of Appeals, which sided with Louisiana, distinguished the cases. The Fifth Circuit said the factors that matter in conducting the legal analysis are different in Louisiana than they were in Texas. 

The analysis

To address this case, a court must evaluate whether the state regulation imposes a “substantial obstacle” to women’s access to abortions. That’s the standard set out in Planned Parenthood v. Casey (1992). To conduct the analysis, the court must weigh the state’s interest in creating the law against the burden to the woman in getting an abortion (Whole Woman’s Health). If the state has a strong interest and the burden on the woman is not great, the state can pass the law. And vice versa.

In Whole Woman’s Health, the Supreme Court evaluated the Texas law. It determined the Texas law provided absolutely no benefit to the state. It wasn’t helpful at all to require doctors to get hospital admitting privileges nearby. Plus, the burden on women’s access to abortion was substantial, the Court ruled. The law would make it very hard for doctors to qualify to provide abortions because getting hospital privileges in Texas is difficult. As a result, women would have to travel long distances to get abortions. Thus, the law could not stand.

The Fifth Circuit weighed these factors differently in reference to the Louisiana law. The Fifth Circuit said that the Louisiana law does provide a small medical benefit to the state of Louisiana. In Louisiana, the Fifth Circuit said, the credentialing of abortion providers was not up to par before the law, and the law requires them to get background checks and to satisfy other credentialing requirements. Slight benefit, but still a benefit, the Fifth Circuit ruled.

On the other side of the scales — the burden on women — the Fifth Circuit said the law will not cause the same “substantial burden” as it did in Texas. In Texas, the court said, the law was going to make it very hard for women to find credentialed providers, but in Louisiana it’s easier for doctors to get hospital privileges. In Whole Woman’s Health, there was proof that Texas abortion clinics were closing because of the law, but the same was not proven in Louisiana. The Fifth Circuit thus concluded that the Louisiana law could stand even though the same law in Texas was unconstitutional.

Questionable dive into the facts by the Fifth Circuit

Here is Louisiana’s big problem. Appeals courts like the Fifth Circuit aren’t supposed to open the factual record and start making their own analyses of the facts. They are generally supposed to trust the trial court on fact-finding and factual conclusions. The trial court is where all of the evidence is set out, and the theory is that trial courts are better suited to conduct factual analyses than appeals courts. Appeals courts only get what’s written in the record which is second-hand in a sense.

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Roe v. Wade

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The trial court in this case — based on its primary review of the evidence — determined the facts regarding the Louisiana law (and its effects) were indistinguishable from the facts in Whole Woman’s Health. An appeals court would have to show the trial court was clearly wrong in order to overturn its factual conclusions. It’s a difficult standard to satisfy. 

The doctors argue to the Court to overturn the Fifth Circuit decision to let the Louisiana law stand based on its error in diving into the facts rather than respecting the standard of review. 

The U.S. government supports overruling Whole Woman’s Health

The federal government filed a brief in the case supporting Louisiana’s position. The government argued the Court should dismiss the case for lack of standing. Or if the Court reaches the merits, it should uphold the Fifth Circuit decision. 

The government further said the Court may need to overrule Whole Woman’s Health. The brief argued that the Whole Woman’s Health balancing test may not be consistent with the standard set out in Planned Parenthood v. Casey, which simply stated a state cannot place a “substantial obstacle” on abortion access. If a majority of the justices are looking for a way to uphold the Fifth Circuit decision without supporting the court’s factual reaching, they might like this hook.

The Supreme Court will hear arguments on March 4, 2020.

Women’s Rights Reports:



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