June Medical Services LLC v. Russo

No. 18-1323; 18-1460 - Argued March 4, 2020
At Issue

18-1323: Whether the decision by the U.S. Court of Appeals for the Fifth Circuit, below, upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital, conflicts with the Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

18-1460: Whether abortion providers have third-party standing to challenge Louisiana’s statute.

Advocates
  • Julie Rikelman, for June Medical Services LLC
  • Elizabeth Murrill, for Stephen Russo, Interim Secretary, Louisiana Department of Health and Hospitals
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting Stephen Russo, Interim Secretary, Louisiana Department of Health and Hospitals
Background and Case Commentary

 

Editor’s Note: This entry addresses the consolidated cases June Medical Services LLC v. Russo (18-1323) and Russo v. June Medical Services LLC (18-1460).

Jareb Gleckel:

In June Medical Services, physicians challenge a statute that requires abortion providers to have admitting privileges at hospitals within thirty miles of their respective clinics.  In Whole Woman’s Health v. Hellerstedt, in 2016, the Court struck down an identical Texas law as unconstitutional.

18-1323 (Merits):

Throughout the argument, the Justices—mainly Kavanaugh—press the question of whether, according to the Petitioners, such statutes are per se unconstitutional or whether the courts should examine them on a case-by-case basis.  In the first set of answers below, Joanna Grossman responds to these questions for Petitioner June Medical.

As Professor Grossman’s responses demonstrate, the Court need not conclude that admitting-privilege requirements are always unconstitutional.  In practice, however, admitting-privilege requirements all likely fail the undue burden test because states will be hard-pressed to provide evidence that they have benefits for women.   Such fact-finding by a state legislature would conflict with the extensive national data (not data local to Texas) upon which the Whole Woman’s Health Court relied.  And if a law offers no benefit, then—unless there is no burden—it cannot be constitutional, even if the burdens vary from state to state.  Consider, for example, a statute requiring doctors to recite their ABCs before performing an abortion: such a statute would place just a tiny burden on doctors and women, but the lack of any benefit is dispositive.

Louisiana’s law could survive the undue burden analysis if Louisiana could provide evidence that (1) the law creates no burden, or (2) unlike in the rest of the country, admitting privileges in Louisiana provide benefits.  But the Louisiana district court found here—and the Fifth Circuit agreed—that the Louisiana legislature failed to proffer such evidence.  The Whole Woman’s Health data may not have preordained this finding, but they do render the finding unsurprising.

18-1460 (Standing):

A threshold inquiry (from the consolidated case Russo v. June Medical Services) is whether the physician-plaintiffs have third-party standing to challenge Louisiana’s statute.  To be clear: as Julie Rikelman (for Petitioners) expertly argued, physicians should have standing under Kowalski v. Tesmer.  As Chief Justice Rehnquist wrote for the Court in that 2004 decision, a majority of the justices have always taken a generous view of third-party standing in a special category of cases where the government enforces the law directly against the litigant.  (Academics have pressed even further, arguing that such litigants should actually qualify for first­-party standing because every individual has a right to not be subject to an unconstitutional law.)  June Medical falls into this category of cases because Louisiana enforces its admitting-privilege law directly against the physician-plaintiffs.

Justice Breyer’s questions to Respondents, however, press a different point about why physicians should have standing.  He posits that rejecting standing in June Medical would overturn 40 years of abortion jurisprudence.  I answer, for Respondents, that rejecting standing in this case does not necessarily overrule the Court’s prior abortion decisions.

June Medical Services LLC v. Russo on Oyez: https://www.oyez.org/cases/2019/18-1323

Key Questions from Oral Argument

Justice Kavanaugh to Petitioner (20:53): Can I follow up on the Chief Justice’s earlier question and mine as well? Are you saying that admitting privileges laws are always unconstitutional, such that we don’t have to look at the facts in – state by state? Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens?

Joanna Grossman: Your honor, this Court in no way limited its decision in Whole Woman’s Health to the Texas law at issue in that case. Indeed, following Whole Women’s Health, this Court dismissed pending petitions for certiorari in cases involving similar laws in Wisconsin and Mississippi, which meant leaving injunctions in place. In Alabama and Tennessee, the states immediately conceded in pending litigation that their admitting-privilege laws were unconstitutional. And in states like Oklahoma and Mississippi, where the lawyers failed to concede as much, courts blocked enforcement on the basis of this Court’s ruling. These actions reflect this Court’s conclusion that an admitting-privileges law for abortion providers, as a per se matter, offers no benefit and serves no valid state interest. Such a law therefore cannot survive the undue burden analysis required by this Court’s precedents.

Justice Kavanaugh to Petitioner (21:28): Could an admitting privileges law of this kind ever have a valid purpose, in your view?

Joanna Grossman: This Court’s ruling, in Whole Woman’s Health, that the Texas law offered no benefit for women did not rest upon facts unique to Texas. Rather, the Court based its conclusion on peer-reviewed studies, expert opinion, and evidence about how admitting privileges work across the country. The pretext on which this type of law is based finds no support in medicine or science. Abortion is an incredibly safe medical procedure (much safer than childbirth), especially when performed during the first trimester. Ninety-four percent of abortions in Louisiana occur in the first trimester; fewer than one percent of abortion patients require hospital admission. There is no support for the idea that requiring providers to have admitting privileges at a nearby hospital makes abortions any safer. Indeed, the very safety of the procedure is what makes most providers ineligible for admitting privileges—they admit too few patients to satisfy admitting requirements. The district court in this case found that Louisiana’s law “provides no significant health benefits to women.” To the contrary, as the district courts found in Whole Woman’s Health and in this case, laws like this reduce women’s safety. The record here amply supports the district court’s findings that the law would lead to “delays in care, causing a higher risk of complications, as well as a likely increase in self-performed, unlicensed and unsafe abortions.” The appellate court agreed that the record contained nothing to suggest that the law would improve health outcomes for women.

Justice Kavanaugh to Petitioner (21:38): So your view is that they’re unconstitutional in any state, regardless of the facts?

Joanna Grossman: Your honor, deciding this case for the petitioners would leave open the possibility that some set of facts could support a law of this type. But it is hard to imagine the emergence of such facts given the expert consensus that admitting privileges laws consistently fail to contribute to women’s health or safety. As this Court noted in Whole Woman’s Health, requiring abortion providers to obtain admitting privileges would disqualify competent providers for reasons unrelated to their ability to care for patients and would accordingly reduce patients’ access to care. As the district court found in this case, the law would “cripple women’s ability to have an abortion in Louisiana.”

Justice Breyer to Respondent (52:45) : I think eight cases where you've given standing, I mean, we could go back and reexamine Marbury versus Madison, but really we have eight cases in the abortion area, we have several cases in other areas, and Whole Woman's Health picks that up. Casey picks that up. And you really want us to go back and reexamine this, let's go back and reexamine Marbury versus Madison. And -- and you have good arguments. But why depart from what was pretty clear precedent?

Jareb Gleckel: Your honor, denying physicians standing today would not undermine this Court’s prior case law as the Petitioner suggests. There are two categories of cases where physicians have had standing to represent women’s abortion rights. First are cases in which this Court did not address standing at all. As Justice Gorsuch reiterated in his American Legion concurrence, citing Steel Co. v. Citizens for Better Environment, “failure to consider standing cannot be mistaken as an endorsement of it: ‘[D]rive-by jurisdictional rulings of this sort’ carry ‘no precedential effect.’” Moreover in a subset of these cases, such as Doe v. Bolton, women were among the plaintiffs. Therefore, the standing of the additional physician-plaintiffs in those cases was of no moment. The second category of cases includes City of Akron and Danforth, the only abortion cases where there were no female plaintiffs and a majority of the Court expressly found third-party standing for physicians. In each of these cases, women were truly hindered from bringing their own claims. The statute at issue in City of Akron prevented minors under age 15 from getting abortions without parental consent; the statute at issue in Danforth prevented women from getting abortions without permission from their husbands. Neither pregnant minors who were afraid of telling their parents, nor pregnant women who were afraid of telling their husbands, could be expected to bring their own claims. But this case does not involve the same kind of specific hindrance to female plaintiffs; it would therefore require a holding that all pregnant women are hindered from bringing their own claims, which is at odds with dozens of cases where female patients did bring challenges to abortion statutes. Finding standing here would therefore expand third-party standing in abortion cases to all doctors who provide the procedure, regardless of their patients’ ability to speak for themselves.

Contributors

Joanna Grossman
Jareb Gleckel