UPDATE, February 7, 9:33 p.m.: On Thursday, the Supreme Court granted an injunction of the Louisiana anti-abortion statute while the case makes its way through the courts.
UPDATE, February 1, 6:30 p.m.: On Friday, the Supreme Court released an order written by Justice Samuel Alito blocking the Fifth Circuit ruling in Louisiana until Thursday, noting that the decision “does not reflect any view regarding merits.”
UPDATE, January 25, 11:00 p.m.: Late Friday, attorneys from the Center for Reproductive Rights filed an emergency petition with the U.S. Supreme Court asking it to stay the Fifth Circuit decision that would allow Louisiana’s admitting privileges law to take effect on February 4.
The term “judicial activism” is supposed to refer to judges who act outside the bounds of the law in order to force the law into a predetermined outcome, usually based on that judge’s personal opinion. It’s the opposite of judicial restraint, which, arguably, is what judges are supposed to exhibit. But thanks to conservative whinging, the term has lost all meaning to me.
I don’t often use the term “judicial activism,” because it has come to mean “a decision that I dislike.” But while I dislike the Fifth Circuit Court of Appeal’s rulings in June Medical Services v. Gee, a lawsuit challenging Louisiana’s admitting privileges law, the mess the Fifth Circuit has made of the case is as clear an example of judicial activism—in its true sense—as I’ve seen.
In September, a two-judge majority of a three-judge Fifth Circuit panel contorted logic, reason, and the rules governing appellate procedure to uphold Louisiana’s law requiring abortion providers to obtain admitting privileges at hospitals located within 30 miles of their clinic. And last week, the Fifth Circuit declined to rehear the case en banc to allow the full court to weigh in—meaning the law will remain in effect unless the case goes back up to the Supreme Court.
Act 620, the law at issue in June Medical Services v. Gee, is basically identical to the admitting privileges provision in Texas’ HB 2, which the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt as an undue burden on the right to an abortion. The district court in June Medical Services temporarily blocked Act 620 in 2014 and again in 2016 before permanently blocking it in April 2017, ruling that it was unconstitutional and an undue burden on the constitutional right to an abortion in violation of principles the Supreme Court set forth in Planned Parenthood v. Casey and clarified in Whole Woman’s Health.
Still, despite the striking similarities between June Medical Services and Whole Woman’s Health, the Fifth Circuit panel reversed the district court’s ruling and upheld the Louisiana law. The Fifth Circuit decided that there was no evidence that clinics would close as a result of the law. (In fact, there were mountains of evidence that the district court considered.). The court also decided that if the law went into effect, two clinics with one provider each would remain open, as if this in and of itself is not a clear undue burden. It also determined that any clinic closures would be the doctors’ fault, because they didn’t try hard enough to obtain admitting privileges.
The ruling is absurd not just because any fair reading of the evidence fully supports the district court’s factual findings, but also because the panel simply ignored the district court’s factual findings and substituted its own judgment in place of them. This is an egregious breach of appellate procedure. Appellate courts are required to accept a lower court’s factual findings unless those findings are clearly erroneous. The two-judge majority panel simply declared that the district court had committed “clear error,” even though no reasonable judge could review the district court’s extensive findings of fact and draw that conclusion. “Clear error” is a high bar. It is not mere disagreement or an appellate judge’s personal feeling that the district court should have interpreted the facts differently.
The district court held a six-day trial, during which it considered and accepted testimony from abortion providers who said they were unable to obtain the requisite admitting privileges. Some of the hospitals refuse to give abortion providers privileges outright. Others require doctors to have a certain number of admissions in order to qualify for admitting privileges—ironically, abortion providers can’t get admitting privileges because they don’t admit enough patients into hospitals, and they don’t admit enough patients into hospitals because abortion is an overwhelmingly safe and uncomplicated procedure.
But the two-judge majority thought it knew better. The district court found that the doctors had tried to get admitting privileges. The Fifth Circuit disagreed and decided the doctors hadn’t tried hard enough. The district court also stressed that the law would burden poor women:
The vast majority of women who undergo abortions in Louisiana are poor. As a result of that poverty, the burden of traveling farther to obtain an abortion would be significant, fall harder on these women than those who are not poor and cause a large number of these women to either not get an abortion, perform the abortions themselves, or have someone who is not properly trained and licensed perform it.
This didn’t seem to matter. Instead, the two judges found that Louisiana’s law was not as stringent as Texas’ and therefore would not result in any clinic closures. Indeed, despite the fact that the district court found the statute “in fact led to clinic closures,” the two-judge majority found that because some of the clinics may have closed for reasons unrelated to the statute, the court shouldn’t count those.
The judges got it wrong, argued Circuit Judge James L. Dennis, who penned a scathing dissent from the decision not to rehear the case, relying heavily on Judge Patrick Higginbotham’s vigorous dissent from the panel opinion. (Higginbotham, who is a Reagan appointee, joined Dennis’ opinion, as did Judges James E. Graves Jr. and Stephen A. Higginson, both Obama appointees.)
“The panel majority opinion is in clear conflict with the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, holding unconstitutional an almost identical admitting privileges requirement that served as a model for Act 620,” Dennis wrote.
In Whole Woman’s Health, the Supreme Court reversed a Fifth Circuit ruling that upheld Texas’ admitting privileges law as constitutional under Planned Parenthood v. Casey’s undue burden test. The Supreme Court said that the Fifth Circuit’s interpretation of the undue burden test might have been “read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden.” In addition, the Court clarified that Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.
Apparently the Fifth Circuit didn’t quite get the message. In analyzing the Louisiana law, the two-judge majority noted that under “the proper reading” of Whole Woman’s Health, “even regulations with a minimal benefit are unconstitutional only where they present a substantial obstacle to abortion.”
But that’s not the proper reading.
In determining whether an abortion restriction is an “undue burden,” the Supreme Court said that courts must analyze scientific and medical evidence. The Court then said that courts must weigh the benefits and burdens of the law: If there are no “medical benefits sufficient to justify the burdens upon access” imposed by the law, then that law is unconstitutional.
And here’s where the Fifth Circuit really got it wrong. The Fifth Circuit attempted a rote mathematical analysis of the number of women that would be burdened and concluded that a large fraction of women in Louisiana would not be burdened by the law. But this analysis is incorrect—the burdens the law would impose are not to be analyzed with respect to all Louisianans or even all pregnant Louisianans. Rather, the burdens must be analyzed with respect to only those who are actually restricted by the law.
In other words, the constitutional inquiry should focus on whether the burdens are “undue” only for the relevant population who will be affected by them.
For example, the lower court found that the law would unduly burden poor women. That’s enough for the analysis. That’s an undue burden under Casey. It doesn’t matter if those poor women make up a small fraction of the total number of women in Louisiana. It’s enough that of the poor women in Louisiana who will be affected by the law, a large fraction of that population will be unduly burdened.
End of story.
“It is beyond strange that it is necessary to remind that it is not our task to re-try the facts of the case; this is especially true where the lower court’s findings are based on oral testimony and the trial judge has viewed the demeanor and judged the credibility of the witnesses,” Higginbotham wrote in his dissent from the two-judge majority opinion.
“We cannot reverse the findings of the trial judge simply because we are convinced that we would or could decide the case differently,” he said.
Yet that’s exactly what the two-judge majority did here.
By then refusing to rehear the case en banc, the Fifth Circuit decided that this flouting of appellate procedure and the distortion of the principles set forth in Casey and Whole Woman’s Health didn’t warrant another hearing. This was despite the fact that, as Dennis noted in his dissent, “[t]he important constitutional issues involved in this case deserve consideration by the full court more so than most others for which the court has granted en banc hearing.”
In light of the mess the Fifth Circuit has created in this case, it’s hard not to conclude that the ultra-conservative court would like nothing more than for the Supreme Court to take this case and uphold the law using the factual findings the Fifth Circuit improperly developed. Certainly, Whole Woman’s Health left space for that. As David Cohen pointed out regarding the limits of the Whole Woman’s Health decision, “It didn’t say that all admitting privileges requirements are unconstitutional …. Rather, even though the Court noted that neither was supported by any medical benefit, what the decision said was that based on the facts in Texas, there were substantial burdens imposed by this law that were not outweighed by this almost complete lack of benefit. This was enough to strike down the Texas provisions, but in other states, laws would be assessed based on the local particulars.”
The laws are nearly identical. The cases are also nearly identical. Nevertheless, the Supreme Court left an opening for states like Louisiana to try to distinguish themselves from Texas in their fervent attempt to restrict abortion out of existence.
Unfortunately, with the new Trumpian conservative majority on the Court, Louisiana may very well be successful.
And if that happens, I suspect we won’t hear any conservatives complaining about judicial activism.