Appeals court upholds abortion clinic regulations. Will Kavanaugh agree?
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October 12, 2018 (Population Research Institute) – A federal appeals court has upheld a Louisiana law requiring abortionists have admitting privileges at a local hospital. The law is intended to provide women with access to emergency care in the event of serious complications.
In a 2-1 ruling, the Fifth Circuit Court of Appeals upheld the admitting privileges requirement in the Louisiana Unsafe Abortion Protection Act (Act No. 620), overturning a previous 2017 ruling from a federal district court which had ruled the Act unconstitutional.
The Unsafe Abortion Protection Act was adopted by the Louisiana legislature in 2014 to ensure that abortionists meet the preexisting minimum qualifications required of other physicians performing surgical procedures at ambulatory surgical clinics (ASCs). The Court reasoned that the Act "performs a real, and previously unaddressed, credentialing function that promotes the wellbeing of women."
Louisiana public health regulations require that a physician working at an ambulatory surgical clinic have admitting privileges and be a "member in good standing" with the medical staff of "at least one hospital in the community." The Unsafe Abortion Protection Act requires abortionists to have admitting privileges at at least one hospital within a 30-mile radius.
Even so, the standards abortionists are required meet under Act No. 620 are more lenient than the requirements for other physicians. In Louisiana, physicians performing surgery are required to be on staff at a hospital.
"This bill doesn't go that far," Representative Katrina Jackson said when introducing the bill in the Louisiana House, "It says that you must have admitting privileges at a hospital, which means if something goes wrong from your surgical procedure, you can call the hospital or follow your patient to the hospital and make sure they receive proper care. And I think that's just a commonsense method that we've always used with physicians who are set up in surgical centers."
After Act 620 was passed, several abortion clinics including Hope Medical Group for Women sued the state of Louisiana, alleging the law placed an undue burden on abortion access. Ongoing litigation has so far prevented the law from going into effect.
The Fifth Circuit Court of Appeals found, however, that the admitting privileges requirement under Act 620 did not impose a "substantial burden." Although only one out of the six abortionists in the state had been able to secure full and active admitting privileges, the court found that the abortionists had not made a good-faith effort to comply with the law but had "largely sat on their hands." The Court inferred that one of the abortionists was "waiting for the outcome of this litigation to put forth an actual good-faith effort."
The Louisiana ruling follows another similar decision handed down last month by the Eighth Circuit Court of Appeals which upheld health regulations issued by the Missouri Department of Health and Senior Services (DHSS). The DHSS' rules require abortionists to have hospital admitting privileges and require abortion clinics to meet the minimum state standards for ambulatory surgery centers.
In 2017, a federal district court had blocked the state of Missouri from enforcing the regulations. The Eighth Circuit Court of Appeals reversed the district court's decision this September, finding that the district court had made its decision "based on less than adequate information and an insufficient regard for the relevant standard." Planned Parenthood had initiated the lawsuit against the Missouri DHSS back in 2016.
In 2016, the U.S. Supreme Court overturned a Texas law (H.B. 2) nearly identical to the Louisiana and Missouri statutes in its decision in Whole Woman's Health v. Hellerstedt. Like the Louisiana law, H.B. 2 had required abortion doctors to maintain admitting privileges at a hospital within a 30-mile radius. And like the Missouri health regulations, H.B. 2 had required abortion clinics to meet minimum standards for an ambulatory surgical center.
Hellerstedt is arguably the most important abortion decision handed down by the Supreme Court since Gonzales v. Carhart when, in 2007, the Court banned the barbaric practice of partial-birth abortion. According to the pro-abortion Center for Reproductive Rights, the Hellerstedt decision was "the most significant abortion-related ruling from the Court in more than two decades."
In Roe v. Wade, the Supreme Court ruled that states were prohibited from regulating abortion during the first trimester and could only regulate abortion in the interest of women's health from the second trimester on. In 1992, the Supreme Court in Planned Parenthood v. Casey rejected the trimester framework established by Roe and opened the door to allowing states to regulate abortion at any point during pregnancy, so long as such regulations furthered a legitimate state interest and did not impose an "undue burden" on abortion access prior to viability. It is this "undue burden" standard established in Casey that the courts have generally used ever since for testing the constitutionality of pro-life laws.
The precise definition of what constituted an "undue burden" under Casey "was unclear" after the case was decided. Other decisions, such as Gonzales v. Carhart, have helped define how the Court applies its "undue burden" standard.
In Casey, the Court invalidated a spousal consent law in Pennsylvania under the premise that it was an "undue burden" "in a large fraction of the cases in which [it] is relevant." In Hellerstedt, the Supreme Court built upon Casey's "large fraction" requirement and seemed to imply that the "undue burden" standard is something akin to a "cost-benefit analysis." As the majority in Hellerstedtopined, the standard "requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer."
In the recent Louisiana and Missouri cases, the Fifth and Eighth Circuit Courts applied Hellerstedt in this way, weighing the benefits of the pro-life laws against "undue burden" considerations. And even though the Louisiana and Missouri laws are very similar to the Texas law that was struck down by the Supreme Court two years ago, federal appeals courts have interpreted the Hellerstedt standard to allow courts to uphold even identical restrictions so long as they do not impose an "undue burden" under the circumstances particular to each state or context in which they are applied.
In the Louisiana case, the Fifth Circuit Court of Appeals found that even though the Unsafe Abortion Protection Act was almost identical to the Texas law overturned by the Supreme Court, the Louisiana law, unlike the H.B. 2, was valid because the law did not create "a substantial burden on a large fraction of women."
The Fifth Circuit Court found that, at most, only 30 percent of women seeking abortion in Louisiana would be affected by Act No. 620. The Court also reasoned that far fewer clinics, if any at all, would close due to Act 620, thus differentiating the Louisiana law from the Texas law which had threatened to drastically reduce the number of abortion providers in the state.
Still, the fact that only one out of six abortionists in Louisiana were able to obtain admitting privileges may serve as an indication that some abortion clinics in the state may close soon nonetheless. In this way, the Fifth Circuit has found a way to balance its binding obligation to follow the Supreme Court's Hellerstedt decision while still protecting the right of the state to regulate abortion as guaranteed by Planned Parenthood v. Casey, Gonzales v. Carhart, and others.
As the Louisiana and Missouri cases may signal a departure from what was intended by the majority in Hellerstedt, the new composition of the U.S. Supreme Court will be key to determining how the cases resolve. With Justice Brett Kavanaugh confirmed to the Court this past weekend, it is widely being touted that the Court has, for the first time since Roe v. Wade, a conservative – and presumably pro-life – majority.
With a conservative majority on the Court, lower federal courts may now have more freedom to interpret Hellerstedt in favor of pro-life laws. The Supreme Court is presumably more likely to allow judgements favoring pro-life restrictions to stand and may be more likely to correct decisions which interpret Hellerstedt strictly.
Still, it remains to be seen how Kavanaugh will position himself on the abortion issue. Kavanaugh has not had the opportunity to decide very many cases on abortion. In the one notorious case where he did, however, in the case where a 17-year-old minor was seeking an abortion while in immigration custody Kavanaugh's opinion in the case merely sought to have her transferred to a sponsor expeditiously after which "she could have the abortion immediately after transfer, if she wishes."
As we are unclear about how Kavanaugh (or Gorsuch for that matter) would decide on a direct challenge to Roe, it would perhaps be beneficial to first try to test the Court with a case on a narrow issue related to abortion rather than providing a full challenge to Roe off the block. A reaffirmation of Roe by the Court would significantly harm efforts to overturn it in the future. The recent Louisiana and Missouri cases could provide the perfect test case. If the plaintiffs in the Louisiana or Missouri cases appeal to the Supreme Court, it could present the Court with the first opportunity to rewrite the "undue burden" standard. And, if they have resolve, it could perhaps present them with the opportunity for something even more.
Published with permission from the Population Research Institute.
 La. Admin. Code tit. XLXIII, §4541(B) (2018). See also La. Admin. Code tit. XLV, §4535(E)(1) (Oct. 2016).
 Another abortionist had received notice from Women's Hospital that they would grant the abortionist admitting privileges once he/she (court documents do not disclose the sex of the abortionists in the case) is able to find a doctor to cover for his/her service when not at the hospital.
 La. Admin. Code tit. XLXIII, §4541(B) (2018). ("Each member of the medical staff of the ASC, including physicians who practice under a use agreement, shall be a member in good standing on the medical staff of at least one hospital in the community and that hospital shall be licensed by the department.").
 Center for Reproductive Rights, Whole Woman's Health v. Hellerstedt (Feb. 23, 2016), https://www.reproductiverights.org/case/whole-womans-health-v-hellerstedt. (Hellerstedt is not the most significant abortion case in two decades as the Center for Reproductive Rights alleges, what they appear to imply is the most significant case since Planned Parenthood of Southeastern Pennsylvania v. Casey. This is not exactly correct. Gonzales v. Carhart was arguably more significant as it represented the first instance that the Supreme Court allowed an abortion procedure to be completely banned on a premise unrelated to women's health (the court in this case implicitly conceded the possibility that intact D&E abortion was actually safer than most other late-term methods, but it banned its practice nonetheless. See Gonzales v. Carhart, 550 U.S. 124, 162-5 (2007)). However, for radically pro-abortion advocates, the Court's upholding a federal ban on partial birth abortion in Gonzales v. Carhart represented for them a set-back, and thus, through that lens, pro-abortion advocates may perceive the Hellerstedt decision as more significant as it actually accomplishes something significant in their favor. Nevertheless, the Hellerstedt decision is a very significant decision, but perhaps not as significant as pro-abortion advocates may believe it to be.).
 Whole Woman's Health v. Hellerstedt. Harv. L. Rev.2016;130(1):397.
 Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 895 (1992)).
 Comprehensive Health of Planned Parenthood Great Plains v. Hawley, No. 17-1996 (8th Cir. 2018), citing Whole Woman's Health v. Hellerstedt. Harv. L. Rev. 2016;130(1):397.
 Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309-10 (2016).
 Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (per curiam) (Kavanaugh, dissenting).