June Medical Services v. Russo

591 U.S. ___ (2020)

Case Year: 2020

Case Ruling: 5-4, Reversed

Opinion Justice: Breyer

 

In 2014, Louisiana passed a law (Act 620), which required any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.” This “admitting privileges” law was “almost word-for-word identical” to the Texas law that the Supreme Court invalids in Whole Woman’s Health v. Hellerstedt (2016).

Five abortion clinics and four abortion providers challenged the Louisiana law, and a U.S. District Cout rules in their favor. Applying the approach outlined in Whole Woman’s Health, the court found the law offered no significant health benefits; that admitting privileges would be impossible for abortion providers to obtain because existing state laws and practices “precluded or at least greatly discouraged” granting privileges to abortion providers for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety; and that this inability places a substantial obstacle in the path of women seeking an abortion. The court concluded that the law imposes an undue burden and is thus unconstitutional. The Court of Appeals reversed, agreeing with the district court’s interpretation of the relevant legal standards but disagreeing with the court’s factual findings.

JUSTICE BREYER announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join.

In  Whole  Woman’s  Health  v.  Hellerstedt (2016), we held that “ ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ ” and are therefore “constitutionally invalid.” quoting Planned Parenthood of Southeastern Pa. v. Casey (1992). We explained that this standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens.”

The Texas statute at issue in Whole Woman’s Health required abortion providers to hold “ ‘active admitting privileges at a hospital’” within 30 miles of the place where they perform abortions. Reviewing the record for ourselves, we found ample evidence to support the District Court’s finding that the statute did not further the State’s asserted interest in protecting women’s health. The evidence showed, moreover, that conditions on admitting privileges that served no “relevant credentialing function,” “help[ed] to explain” the closure of half of Texas’ abortion clinics. Those closures placed a substantial obstacle in the path of Texas women seeking an abortion. And that obstacle, “when viewed in light of the virtual absence of any health benefit,” imposed an “undue burden” on abortion access in violation of the Federal Constitution.

In this case, we consider the constitutionality of a Louisiana statute, Act 620, that is almost word-for-word identical to Texas’ admitting-privileges law. As in Whole Woman’s Health, the District Court found that the statute offers no significant health benefit. It found that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety.   And it found that this inability places a substantial obstacle in the path of women seeking an abortion.  As in Whole Woman’s Health, the substantial obstacle the Act imposes, and the absence of any health-related benefit, led the District Court to conclude that the law imposes an undue burden and is therefore unconstitutional. The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations on abortion. It thought, however, that the District Court was mistaken on the facts. We disagree. We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional…

In June 2015, the District Court held a 6-day bench trial on the plaintiffs’ request for a preliminary injunction. It heard live testimony from a dozen witnesses, including three Louisiana abortion providers, June Medical’s administrator, the Secretary (along with a senior official) of the State’s Department of Health and Hygiene, and three experts each for the plaintiffs and the State….

Approximately two months later, in June 2016, we issued our decision in Whole Woman’s Health, reversing the Fifth Circuit’s judgment in that case. We remanded this case for reconsideration, and the Fifth Circuit in turn remanded the case to the District Court permitting it to engage in further factfinding….

Because the issues before us in this case primarily focus upon the factual findings (and fact-related determinations) of the District Court, we set forth only the essential findings here, giving greater detail in the analysis that follows.

With respect to the Act’s asserted benefits, the District Court found that:

• “[A]bortion in Louisiana has been extremely safe, with particularly low rates of serious complications.” ….
• There was accordingly “ ‘no significant health-related problem that the new law helped to cure.’ The record does not contain any evidence that complications from abortion were being treated improperly, nor any evidence that any negative outcomes could have been avoided if the abortion provider had admitting privileges at a local hospital.” …

Turning to Act 620’s impact on women’s access to abortion, the District Court found that:

• Approximately 10,000 women obtain abortions in Louisiana each year. At the outset of this litigation, those women were served by six doctors at five abortion clinics. By the time the court rendered its decision, two of those clinics had closed, and one of the [doctors]  had retired, leaving only [five doctors].
• “[N]otwithstanding the [doctors’] good faith efforts of to comply with the Act by getting active admitting privileges at a hospital within 30 miles of where they perform abortions, they have had very limited success for reasons related to Act 620 and not related to their competence.”
• These doctors’ inability to secure privileges was “caused by Act 620 working in concert with existing laws and practices,” including hospital bylaws and criteria that “preclude or, at least greatly discourage, the granting of privileges to abortion providers.”
• Enforcing the  admitting-privileges  requirement  would therefore “result in a drastic reduction in the number and geographic distribution of abortion providers…”
• “The result of these burdens on women and providers, taken together and in context, is that many women seeking a safe, legal abortion in Louisiana will be unable to obtain one. Those who can will face substantial obstacles in exercising their constitutional right to choose abortion due to the dramatic reduction in abortion services.”
• “In sum, “Act 620 does not advance Louisiana’s legitimate interest in protecting the health of women seeking abortions. Instead, Act 620 would increase the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.”

The District Court added that “there is no legally significant distinction between this case and [Whole Woman’s Health]: Act 620 was modeled after the Texas admitting privileges requirement, and it functions in the same manner, imposing significant obstacles to abortion access with no countervailing benefits.”

On the basis of these findings, the court held that Act 620 and its implementing regulations are unconstitutional.

The State appealed. A divided panel of the Court of Appeals reversed the District Court’s judgment. The panel majority concluded that Act 620’s impact was “dramatically less” than that of the Texas law invalidated in Whole Woman’s Health. “Despite its diligent effort to apply [Whole Woman’s Health] faithfully,” the majority thought that the District Court had “clearly erred in concluding otherwise.”.

With respect to the Act’s asserted benefits, the majority thought that, “[u]nlike Texas, Louisiana presents some evidence of a minimal benefit.” Rejecting the District Court’s contrary finding, it concluded that the admit- ting-privileges requirement “performs a real, and previously unaddressed, credentialing function that pro- motes the wellbeing of women seeking abortion.” The majority believed that the process of obtaining  privileges would help to “verify an applicant’s surgical ability, training, education, experience, practice record, and criminal history.” And it accepted the State’s argument that the law “brings the requirements regarding outpatient abortion clinics into conformity with the preexisting requirement that physicians at ambulatory surgical centers (‘ASCs’) must have privileges at a hospital within the community.”

Moving on to Act 620’s burdens, the appeals court wrote that “everything turns on whether the privileges requirement actually would prevent doctors from practicing in Louisiana.” … The Court of Appeals concluded that “there is no evidence that Louisiana facilities will close from Act 620.” …

On the basis of these findings, the panel majority concluded that Louisiana’s admitting-privileges requirement would impose no “substantial burden at all” on Louisiana women seeking an abortion, “much less a substantial burden on a large fraction of women as is required to sustain a facial challenge.” …

We start from the premise that a district court’s findings of fact, “whether based on oral or other evidence, must not be set aside unless clearly erroneous and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility….

Under that familiar standard, we find that the testimony and other evidence contained in the extensive record developed  over  the 6-day trial support  the District Court’s ultimate conclusion that, “[e]ven if Act 620 could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden.”…

[Justice Breyer then reviewed the testimony and other evidence]

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution…

This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional. The Court of Appeals’ judgment is erroneous. It is

Reversed.

CHIEF JUSTICE ROBERTS, concurring in the judgment.

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case. …

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents…

Both Louisiana and the providers agree that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law. Neither party has asked us to re- assess the constitutional validity of that standard.

Casey reaffirmed “the most central principle of Roe v. Wade,” “a woman’s right to terminate her pregnancy before viability.” At the same time, it recognized that the State has “important and legitimate interests in . . . protecting the health of the pregnant woman and in protecting the potentiality of human life.” To serve the former interest, the State may, “[a]s with any medical procedure,” enact “regulations to further the health or safety of a woman seeking an abortion.”… The State’s freedom to enact such rules is “consistent with Roe’s central premises, and indeed the inevitable consequence of our holding that the State has an interest in pro- tecting the life of the unborn.”

Under Casey, the State may not impose an undue burden on the woman’s ability to obtain an abortion. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Laws that do not  pose a substantial obstacle to abortion access are permissible, so long as they are “reasonably related” to a legitimate state interest. Id., at 878.

After faithfully reciting this standard, the Court in Whole Woman’s Health added the following observation: “The rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”  The plurality repeats today that the undue bur- den standard requires courts “to weigh the law’s asserted benefits against the burdens it imposes on abortion access.”

Read in isolation from Casey, such an inquiry could invite a grand “balancing test in which unweighted factors mysteriously are weighed.”…

In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. Casey. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy.”

Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.” 

Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts. On the contrary, we have explained that the “traditional rule” that “state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty” is “consistent with Casey.” Gonzales v. Carhart (2007). Casey instead focuses on the existence of a substantial obstacle, the sort of inquiry familiar to judges across a variety of contexts. 

Casey’s analysis of the various restrictions that were at issue in that case is illustrative. For example, the opinion recognized that Pennsylvania’s 24-hour waiting period for abortions “has the effect of increasing the cost and risk of delay of abortions,” but observed that the District Court did not find that the “increased costs and potential delays amount to substantial obstacles.” The opinion concluded that “given the statute’s definition of medical emergency,” the waiting period did not “impose[] a real health risk.” Because the law did not impose a substantial obstacle, Casey upheld it. And it did so notwithstanding the District Court’s finding that the law did “not further the state interest in maternal health.”…

The only restriction Casey found unconstitutional was Pennsylvania’s spousal notification requirement. On that score, the Court recited a bevy of social science evidence demonstrating that “millions of women in this country . . . may have justifiable fears of physical abuse” or “devastating forms of psychological abuse from their husbands.”

The spousal notification requirement was “thus likely to prevent a significant number of women from obtaining an abortion.” It did not “merely make abortions a little more difficult or expensive to obtain; for many women, it [imposed] a substantial obstacle.”

The upshot of Casey is clear: The several restrictions that did not impose a substantial obstacle were constitutional, while the restriction that did impose a substantial obstacle was unconstitutional.

To be sure, the Court at times discussed the benefits of the regulations, including when it distinguished spousal notification from parental consent. But in the context of Casey’s governing standard, these benefits were not placed on a scale opposite the law’s burdens. Rather, Casey discussed benefits in considering the threshold requirement that the State have a “legitimate purpose” and that the law be “reasonably related to that goal.”

So long as that showing is made, the only question for a court is whether a law has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey repeats that “substantial obstacle” standard nearly verbatim no less than 15 times. ..

Casey [does not] call for consideration of a regulation’s benefits… Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law. Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.

JUSTICE THOMAS, dissenting.

Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law…

The plurality and THE CHIEF JUSTICE… conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously

JUSTICE ALITO, with whom JUSTICE GORSUCH joins, with whom JUSTICE THOMAS joins [in part], and with whom JUSTICE KAVANAUGH joins [in part].

The divided majority cannot agree on what the abortion right requires, but it nevertheless strikes down a Louisiana law, Act 620, that the legislature enacted for the asserted purpose of protecting women’s health…

The plurality eschews the constitutional test set out in Casey and instead employs the balancing test adopted in Whole Woman’s Health. The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry…

Under our precedent, the critical question in this case is whether the challenged Louisiana law places a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey.  

Casey… rules out the balancing test adopted in Whole Woman’s Health. Whole Woman’s Health simply misinterpreted Casey, and I agree that Whole Woman’s Health should be overruled insofar as it changed the Casey test. Unless Casey is reexamined—and Louisiana has not asked us to do that—the test it adopted should remain the governing standard…

In any event, contrary to the view taken by the plurality and (seemingly) by THE CHIEF JUSTICE, there is ample evidence in the record showing that admitting privileges help to protect the health of women by ensuring that physicians who perform abortions meet a higher standard of competence than is shown by the mere possession of a license to practice.

[Even] June Medical’s expert, Dr. Eva Pressman, agreed that “admitting privileges can serve the function of providing an evaluation mechanism for physician competency.”

The record shows that the vetting conducted by hospitals goes far beyond what is done at Louisiana abortion clinics. Some clinics demand nothing more than possession of a license…

There is certainly room for debate about the need for this requirement, but under our case law, this Court’s task is not to ascertain whether a law “adds significantly” to the existing regulatory framework. Instead, when confronted with a genuine dispute about a law’s benefits, we have afforded legislatures “wide discretion” in assessing whether a regulation serves….

For these reasons, both the plurality and THE CHIEF JUSTICE err in concluding that the admitting-privileges requirement serves no valid purpose…

The Court should remand this case for a new trial under the correct legal standards. The District Court should apply Casey’s “substantial obstacle” test, not the Whole Woman’s Health balancing test...

JUSTICE GORSUCH, dissenting.

When confronting a constitutional challenge to a law, this Court ordinarily reviews the legislature’s factual findings under a “deferential” if not “[u]ncritical” standard. When facing such a challenge, too, this Court usually accepts that “the public interest has been declared in terms well-nigh conclusive” by the legislature’s adoption of the law—so we may review the law only for its constitutionality, not its wisdom. Today, however, the plurality declares that the law before us holds no benefits for the public and bears too many social costs. All while sharing virtually nothing about the facts that led the legislature to conclude otherwise. The law might as well have fallen from the sky.

Of course, that’s hardly the case. In Act 620, Louisiana’s legislature found that requiring abortion providers to hold admitting privileges at a hospital within 30 miles of the clinic where they perform abortions would serve the public interest by protecting women’s health and safety. Those in today’s majority never bother to say so, but it turns out that Act 620’s admitting privileges requirement for abortion providers tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory  surgical  centers.    In  fact,  the  Louisiana legislature passed Act 620 only after extensive hearings at which experts detailed how the Act would promote safer abortion treatment—by providing “a more thorough evaluation mechanism of physician competency,” promoting “continuity of care” following abortion, enhancing inter-physician communication, and preventing patient abandonment…

JUSTICE  KAVANAUGH, dissenting.

A threshold question in this case concerns the proper standard for evaluating state abortion laws. The Louisiana law at issue here requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic. The State asks us to assess the law by applying the undue burden standard of Planned Parenthood of Southeastern Pa. v. Casey, The plaintiffs ask us to apply the cost-benefit standard of Whole Woman’s Health v. Hellerstedt, (2016).

Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard. (ROBERTS, C. J., concurring in judgment); (THOMAS, J., dissenting); (ALITO, J., joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting)… A different five Members of the Court conclude that Louisiana’s admitting-privileges law is unconstitutional because it “would restrict women’s access to abortion to the same degree as” the Texas law in Whole Woman’s Health. (opinion of  ROBERTS, C. J.); see also (opinion of BREYER, J., joined by GINSBURG, SOTOMAYOR, and KAGAN, JJ.).

I agree with the first of those two conclusions. But I respectfully dissent from the second because, in my view, additional factfinding is necessary to properly evaluate Louisiana’s law. [T]he factual record at this stage … does not adequately demonstrate that the [doctors] cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law. In short, I agree with JUSTICE ALITO that the Court should remand the case for a new trial and additional factfinding under the appropriate legal standards.