June Medical Services LLC v. Gee

Issues 

Under Supreme Court precedent, can a state law require physicians who administer abortions to obtain admitting privileges at hospitals?

Oral argument: 

This case asks the Supreme Court to determine whether Louisiana’s law, requiring physicians who perform abortions to have admitting privileges at local hospitals, comports with the Court’s precedent. The parties agree that the Louisiana law at issue in this case is substantially similar to the Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. June Medical Services argues that precedent from Whole Woman’s Health and Planned Parenthood of Southeastern Pennsylvania v. Casey control and that Louisiana’s Act is unconstitutional because it unduly burdens women seeking abortions. Doctor Rebekah Gee on behalf of Louisiana argues that June Medical Services lacks standing to bring forth a claim on behalf of their patients and further asserts that Whole Woman’s Health does not control the outcome of this case because the Louisiana Act does not unduly burden women seeking abortions. The outcome of this case has important implications on access to abortion services for women of color and could impact lower courts’ fact-finding authority.

Questions as Framed for the Court by the Parties 

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

Facts 

In 2014, the Louisiana Legislature passed the Unsafe Abortion Protection Act (“Louisiana Act”), which required abortion providers who perform abortions at local clinics to have admitting privileges at a hospital within thirty miles of the clinic. June Medical Services LLC v. Gee (5th Circuit) at 1–2. Any abortion provider found in violation of this law could be fined up to $4,000. Id. at 3.

While considering the Louisiana Act, the state legislature reviewed evidence of health and safety violations in Louisiana abortion clinics, including testimony from women who had experienced medical complications while undergoing abortion procedures. Id. at 3–4. The Louisiana Legislature also expressed its intention for the Act to protect unborn life to the extent permitted by law. Id. at 4.

When the legislature passed the Louisiana Act, five abortion clinics were operating in Louisiana and six doctors were performing abortions, only one of whom had hospital admitting privileges. Id. at 5. Under Louisiana law, a doctor has admitting privileges if that doctor is in good standing on the medical staff of a licensed hospital that can admit patients and provide certain diagnostic and surgical procedures. Id. at 3.

The Louisiana Act was scheduled to take effect on September 14, 2014, but three abortion clinics and two abortion doctors (collectively “June Medical”) filed a lawsuit on August 14, 2014 in the Middle District of Louisiana (the “District Court”) to prevent the law from going into effect. Id. at 4. There, June Medical asserted that the Louisiana Act was unconstitutional because it “placed an undue burden on women’s access to abortions.” Id.

The District Court initially granted a temporary restraining order to give Louisiana abortion providers time to seek admitting privileges at local hospitals. Id. at 4–5. Then, on January 26, 2016, the District Court granted a preliminary injunction preventing the Louisiana Act from going into effect for the duration of the litigation. Id. at 5. Louisiana appealed this decision to the Fifth Circuit Court of Appeals, which granted an emergency stay of the District Court’s injunction. Id. The Supreme Court of the United States subsequently vacated this emergency stay on March 4, 2014, leaving the District Court’s preliminary injunction in effect. Id.

After the Supreme Court in Whole Woman’s Health v. Hellerstedt struck down a Texas law requiring admitting privileges similar to the Louisiana Act (“WWH”), the Fifth Circuit remanded Louisiana’s appeal to the District Court so that both parties could provide additional factual evidence in light of the WWH decision. Id. On April 26, 2017, the District Court ruled the Louisiana Act unconstitutional. Id. Citing Planned Parenthood of Southeastern Pennsylvania v. Casey, the District Court concluded that the Act provided only “minimal” health benefits for women seeking abortions while imposing “substantial burdens” on obtaining an abortion. Id.

On behalf of Louisiana, Secretary of the Louisiana Department of Health and Hospitals Doctor Rebekah Gee (“Gee”) appealed the District Court’s ruling to the Fifth Circuit. Id. The Fifth Circuit reversed the District Court’s decision, determining instead that, although the Louisiana Act and Texas law were “substantially similar,” due to differences of “facts and geography” between Texas and Louisiana, the Louisiana Act did not unduly burden women seeking abortions or substantially burden a large fraction of women. Id. at 24, 40. In support of this conclusion, the Fifth Circuit found that the Act would require, at most, thirty percent of women seeking abortions to wait an additional fifty-four minutes for a procedure, a burden that the court concluded was not substantial. Id. at 40, 45.

Following the Fifth Circuit’s decision, June Medical filed a petition for a rehearing en banc, but the Fifth Circuit panel denied this request on January 18, 2019. June Medical Services LLC v. Gee (En Banc Denial) at 1–2. June Medical then filed a petition for a writ of certiorari, which the United States Supreme Court granted on October 4, 2019. Proceedings & Orders, 18-1323

Analysis 

WHETHER JUNE MEDICAL HAS STANDING TO ASSERT THE RIGHTS OF PATIENTS SEEKING ABORTIONS

June Medical argues that the Court should not consider Gee’s claim that June Medical lacks standing to challenge the Louisiana Act’s constitutionality on behalf of its patients, Louisiana women seeking abortions. Reply Brief for Petitioner, June Medical Services LLC et. al at 27. In furtherance of this argument, June Medical contends that Gee waived any standing objections at the outset of this case by urging the courts below to decide the case on the merits, and that Gee did not object to June Medical’s standing until the case reached the Supreme Court. Id. Additionally, June Medical claims that the lower courts did not pass upon the question of standing, and even if the Fifth Circuit did, that should not affect Gee’s affirmative waiver of any standing objection. Id. at 38. June Medical asserts that Supreme Court precedent clearly establishes that parties can waive objections to third-party standing, the type of standing at issue here, and maintains that no justifiable reason exists to depart from that precedent in this case. Id. at 28–29. As support, June Medical distinguishes between jurisdictional claims that limit a court’s power to hear a case and thus cannot be waived, and non-jurisdictional rules that do not limit a court’s adjudicatory power, and thus can be waived; June Medical asserts that third-party standing falls into the latter category. Id. at 29–31. Additionally, June Medical cites a long line of precedent to combat Gee’s argument that third-party standing should comport with Article III’s standing requirements, and argues that even if the Court accepts Gee’s argument, the harm June Medical alleges satisfies these requirements. Id. at 31–34. Finally, June Medical contends that the Court should reject Gee’s argument to forgive the standing waiver because that issue is beyond the question presented to the Court. Id. at 39.

June Medical also argues that even if the Court reaches the standing question, June Medical has the standing to assert the rights of its patients. Id. at 43. June Medical contends that litigants may raise the rights of third parties when either: (1) a restriction prevents the litigant from entering into a relationship with a third party to which the third party is legally entitled, or (2) the litigant has a “close” relationship with the third party whose right is being infringed upon and some obstacle “hinder[s]” the third party from bringing the challenge. Id. June Medical asserts that it can challenge the validity of the Louisiana Act under either of these frameworks. Id. at 44. First, June Medical believes that because the Louisiana Act restricts June Medical’s capacity to provide abortion services, which in turn violates its patient’s constitutional right to obtain an abortion, June Medical has standing to challenge that law on behalf of its patients, and, indeed, abortion providers have done so in almost all other abortion cases before the Court. Id. at 46–47. Second, June Medical asserts that the second category of standing also applies because a doctor-patient relationship qualifies as “close,” and pregnant women seeking abortions are “hinder[ed]” in challenging the Louisiana Act themselves because to avoid mootness, they must file the claim while still pregnant, and filing suit could infringe on a woman’s privacy. Id. at 50, 53–54.

In contrast, Gee argues that the Fifth Circuit erred when it determined that June Medical had third-party standing to challenge the Louisiana Act on behalf of its patients and that, therefore, the case should be dismissed. Brief for Respondent, Rebekah Gee at 26. Gee asserts that although Article III does not formally provide requirements for third-party standing, this type of standing should still be considered as a jurisdictional question that could limit a court’s power to hear a case. See id. at 26–27. Third-party standing, Gee explains, fits into Article III because third-party standing involves concerns embedded in Article III’s separation of powers and requires a particularized and traceable injury like Article III standing. Id. Thus, Gee argues that even if the Court does not wish to make third-party standing formally part of its Article III jurisdictional inquiry, parties still should not be able to waive their objections to this type of standing because restrictions on third-party standing serve the same purpose as Article III restrictions, namely limiting federal courts’ adjudicatory power. Id. at 50. Gee continues that appellate courts have just as much interest in ensuring that representatives are not infringing on a third-party’s rights as lower courts do, and, thus, parties should be able to raise standing objections at any stage of a lawsuit. Id. Finally, Gee argues that even if it failed to address standing in the lower courts, the Fifth Circuit passed on the standing question, so the Supreme Court can, and should now consider standing as a matter of discretion. Id. at 52. Moreover, Gee emphasizes that the Fifth Circuit had just determined in a different case that abortion providers had third-party standing to assert the claims of their patients, so the objection below would have been futile; Gee contends that Louisiana should not have been required to raise such an argument in order to raise it for the Supreme Court’s consideration. Id. at 52–53.

Additionally, Gee argues that regardless of whether third-party standing is jurisdictional, June Medical fails to satisfy its strenuous requirements. Id. at 31. Gee asserts that abortion providers should not categorically receive third-party standing automatically, but rather must establish third-party standing in every lawsuit, like any other type of litigant. Id. at 31, 34. Gee explains that in order to achieve third party standing, a party must prove that it has a “close” relationship to the party whose interests it is representing and that a “hindrance” prevents that other party from asserting the rights. Id. at 31. Gee claims that June Medical lacks the close relationship with its patients necessary to establish third-party standing, most prominently because of conflicts of interest, including a patient’s competing interest in safety with a clinics’ interest in reducing costs. Id. at 41–43. Clinics, Gee maintains, are business entities which cannot have close relationships with patients, and abortion providers similarly lack closeness because they typically meet with patients only once to perform the procedure with little follow-up. Id. at 47–48. Secondly, Gee claims that no evidence shows that June Medical’s patients are hindered from challenging the Louisiana Act on their own and cites a line of past cases where women seeking abortions challenged laws on their own behalf. Id. at 39–40. Additionally, Gee contends that June Medical relies on speculative hindrances to support its claim for third-party standing. Id.

IMPACT OF WHOLE WOMAN’S HEALTH v. HELLERSTEDT ON THIS CASE

June Medical argues that because the Court in WWH struck down the Texas law as unconstitutional, laws that are not materially different from the Texas law, like the Louisiana Act, should be struck down as well under the doctrine of stare decisis. Brief for Petitioner, June Medical Services LLC et al. at 21. June Medical notes that the Court struck down the Texas law in WWH for reasons applicable to Texas and other states and, thus, contends that the decision is binding on laws made in states other than Texas too. Id. at 24. Additionally, June Medical asserts that the facts of WWH and this case are not materially different, and, in fact, the Louisiana Act would have even harsher effects on women seeking abortions than the Texas law struck down in WWH. Id. at 26, 29. June Medical bases this assertion on the District Court’s detailed findings that: (1) the admitting privileges requirement would not have helped increase the safety of a woman undergoing an abortion, (2) only one abortion clinic and doctor would be available in Louisiana if the Louisiana Act were to go into effect, and (3) Louisiana is the third poorest state, making abortion more likely but less accessible to women. Id. at 29–30. The Fifth Circuit, June Medical contends, erred in not accepting the District Court’s factual findings and in making two specific factual findings of its own. Id. at 31–32, 37. First, June Medical claims that the Fifth Circuit erred in finding that the admitting privileges requirement provides credentialing and conformity benefits that boost patient safety, as the Court rejected those same benefits in WWH. Id. at 33–37. Second, June Medical maintains that the Fifth Circuit ignored the factual record from the District Court in finding that no abortion clinics would close under the Louisiana Act and that no woman would be substantially burdened by the Act. Id. at 37.

June Medical additionally argues that even if the Louisiana Act creates fewer burdens than the Texas law did in WWH, the Court should still find the Louisiana Act unconstitutional because any negligible benefits of admitting privileges do not outweigh the undue burdens the Act imposes on women seeking abortions. Brief for Petitioner at 45. June Medical contends that because admitting privileges offer no substantial health or safety benefits, the Louisiana Act necessarily fails the undue burden balancing test, which weighs a woman’s liberty interests against a state’s regulatory interests to determine if the benefits of the state’s abortion restrictions outweigh the burdens they place on women. Id. at 45­–47. June Medical further asserts that even if the Fifth Circuit is correct that admitting privileges provide a de minimis credentialing or regulatory consistency benefit, that minimal benefit does not outweigh the substantial burdens the Louisiana Act places on abortion access. Id. at 48­–50.

In response, Gee argues that June Medical misinterprets WWH when it claims that any materially similar law to the Texas law must also be struck down. Brief for Respondent at 53. Instead, Gee contends that the WWH decision relied on a unique, fact-based analysis and that the Court’s decision to strike down the Texas law depended on circumstances specific to Texas. Id. at 53, 56. Precedent, Gee emphasizes, thus establishes that the Court must perform a similar fact-based analysis here. Id. at 54. Gee asserts that the Fifth Circuit correctly reviewed the District Court record and correctly determined that because Louisiana women could still receive an abortion under the Louisiana Act, the admitting privileges requirement did not impose a substantial burden on women’s abortion access. Id. at 72–73. Gee cites examples from the District Court record of abortion doctors in Louisiana either already having admitting privileges or obtaining them after the passage of the Louisiana Act as proof that women in Louisiana will still have access to abortions after the admitting privileges requirement goes into effect. Id. at 73–75. Gee additionally points to the failure of several abortion doctors to make good faith efforts to receive admitting privileges as evidence that the Fifth Circuit did not err in concluding that the doctors’ failures and not the Louisiana Act would reduce the number of abortion providers in the state. Id. at 75–76. Finally, Gee argues that the Fifth Circuit correctly concluded that admitting privileges improve the credentialing of abortion doctors because hospitals perform more credentialing investigation than do abortion clinics. Id. at 81. In fact, the Louisiana Act, Gee notes, offers two additional benefits: improving safety by requiring that abortion clinics have the capacity to transfer patients to nearby hospitals and preserving conformity of abortion regulations under Louisiana laws. Id. at 85–88.

Gee also asserts that post-WWH challengers to abortion regulations must still prove that a substantial obstacle to obtaining an abortion exists before the regulation can be struck down, not merely that the benefits of the law do not outweigh the burdens, as June Medical suggests. Id. at 60–61. Gee contends that abortion regulations are health and safety regulations, and because states hold the power over health and safety within their own state, the Court must defer to the state legislature’s determinations here. Id. at 67. Therefore, Gee believes that as long as abortion regulations do not impose a substantial obstacle to accessing an abortion, the Court can uphold these regulations if they are rational, and, Gee asserts that WWH does not say otherwise. Id. at 68–69. Finally, Gee argues that the Court should make the substantial obstacle standard less subjective by defining it as a near impossibility of obtaining an abortion. Id. at 71. Because Louisiana women could still access abortion under this law, Gee argues that the Court must uphold the Louisiana Act. Id. at 72.

Discussion 

THE DISPROPORTIONATE IMPACT OF THE LOUISIANA ACT ON BLACK WOMEN

A group of Reproductive Justice Scholars, in support of June Medical, argue that the Louisiana Act disproportionately impacts Louisiana’s poor women—in particular black women. Brief of Amicus Curiae Reproductive Justice Scholars, in Support of Petitioner at 10–11. The Reproductive Justice Scholars contend that admitting privileges do nothing to improve health, but rather serve as an obstacle for women seeking an abortion. Id. at 7. Clinic closures, note the Reproductive Justice Scholars, increase the financial hardship women seeking abortions experience due to increased travel costs, lost time from work, and increased childcare expenses. Id. at 10. Further, the Reproductive Justice Scholars explain that because black women disproportionately lack safe and effective access to contraception compared to other populations, the Louisiana Act’s decrease on abortion access impacts black women particularly. Id. at 14. Based on this inaccessibility and a higher prevalence of intimate partner violence and sexual assault toward black women, the Reproductive Health Scholars argue that the Louisiana Act effectively deprives black women of a tool that helps them “navigate poverty, violence, and vulnerability.” Id. at 17.

Meanwhile, African American Pro-Life Organizations (the “Organizations”), in support of Gee, contend that the Louisiana Act advances women’s health and safety by ensuring women seeking abortions have continuity of quality care from abortion providers. Brief of Amicus Curiae African American Pro-Life Organizations, in Support of Respondent at 7. The Organizations maintain that the Louisiana Act enables a higher standard of care for women receiving abortions who are admitted to a hospital because the Act ensures abortion providers remain responsible for patients that experience complications during abortion procedures until another physician has the necessary information to assume care for that patient. Id. at 24–25. Because black women comprise a substantial portion of the population obtaining abortions in Louisiana, the Organizations argue, the Act functions as a tool to protect black women from substandard medical care, and even save their lives. Id. at 9, 12, 19.

WHETHER PHYSICIANS SHOULD BE THE ONES CHALLENGING LOUISIANA’S LAW

A group of Federal Court Scholars, in support of June Medical, contend that rejecting a physicians’ third-party standing places a greater hindrance on a woman’s ability to vindicate her constitutional right to an abortion. Brief of Amicus Curiae Federal Courts Scholars, in Support of Petitioner at 19–20. The American College of Obstetricians and Gynecologists (the “College”) agrees and maintains that significant obstacles, including social stigma and the cost of litigation, prevent women from challenging abortion-related laws. Brief of Amicus Curiae American College of Obstetricians and Gynecologists, in Support of Petitioner at 28. Furthermore, the College argues that because physicians themselves are harmed by “medically unnecessary abortion regulations” on a daily basis, physicians and clinicians are well-suited to bring forth a claim on behalf of a pregnant woman. Id. at 29. Moreover, the College disclaims any conflict of interest between physicians and patients because physicians must adhere to the medical profession’s ethical standards, which place patient safety as a primary concern. Id. at 27.

Conversely, Senator Josh Hawley, in support of Gee, contends that the physicians in this case are invoking third-party standing to subvert legislative authority. Brief of Amicus Curiae Senator Josh Hawley, in Support of Respondent at 4. Because a more stringent standard of review applies to laws impacting women, Senator Hawley posits that these physicians are merely trying to obtain a higher level of scrutiny from the Court to overturn a statute and, thus, receive an unearned benefit, while avoiding a higher standard of care for women. Id. at 5–6. Louisiana State Legislators agree and argue that the doctors here are using a woman’s right to overturn an abortion regulation as a conduit for challenging the legislation without regard for the inherent conflict of interests between the doctors and the women seeking the doctors’ services. Brief of Amicus Curiae Louisiana State Legislators, in support of Respondent at 26, 30, 32. The Louisiana State Legislators contend that the physicians’ attempts to escape the legislation’s requirements undermines the legislators purported interest in improving the standard of care for women seeking abortions. Id. at 19–20.

IMPACT ON THE LEGITIMACY OF THE LOWER FEDERAL COURTS

A group of Constitutional Law Scholars, in support of June Medical, argue that the Fifth Circuit failed to follow the undue burden standard established in Casey, and the Court’s adoption of the Fifth Circuit’s ruling would encourage lower courts to erode other balancing tests throughout constitutional law. Brief of Amicus Curiae Constitutional Law Scholars, in Support of Petitioner at 20. The Constitutional Law Scholars continue that this approach will lead to lower courts skirting precedent, thus undermining uniformity and consistency in the law. Id. at 24. Furthermore, the American Bar Association (“ABA”) explains that if upheld, the Fifth Circuit’s decision could undermine a district court’s legitimacy in the eyes of litigants because the decision would approve of appellate courts overtaking the district courts’ fact-finding authority. Brief of Amicus Curiae American Bar Association, in Support of Petitioner at 11–12. The ABA contends that such an erosion of litigants’ confidence in district courts would amplify appeals and detract from the trial process. Id. at 11.

In contrast, the Louisiana Family Forum, Dr. James Dobson Family Institute, and 25 Additional Family Policy Organizations (the “Forum”), in support of Gee, assert that Casey’s undue burden framework provided an unpredictable guide for both lower courts and legislators to follow. Brief of Amicus Curiae Louisiana Family Forum, et. al, in Support of Respondent at 4–5. The Forum contends that Casey left courts with a “subjective analysis” that permits lower courts to function essentially as legislators. Id. at 6, 10. This subjectivity and unpredictability, the Forum suggests, undermines the legitimacy of the court system because courts performing this analysis no longer appear impartial. Id. at 10–11. Moreover, the Forum asserts that the uncertainty of the current framework increases litigation when legislators seek to strike a balance between advancing the dual state interests of protecting women’s health and protecting unborn children. Id. at 11.

Edited by 

Acknowledgments 

Additional Resources