The 2016 U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt sealed an important victory for reproductive rights advocates. The opinion struck as unconstitutional a series of Texas regulations that closed clinics across the state under the ruse of “advancing patient safety.” It also created a pathway for future plaintiffs to challenge anti-abortion regulations that cumulatively create an undo burden on abortion rights.
But on Friday, a panel of judges on the Fifth Circuit Court of Appeals appeared ready to ignore Whole Woman’s Health altogether. This would be nothing short of an extreme exercise of judicial activism designed to thwart legitimate legal challenges to unconstitutional abortion restrictions.
In June 2017, following the victory in Whole Woman’s Health, reproductive rights advocates filed a lawsuit challenging a web of anti-abortion restrictions in Louisiana. In response, attorneys for the state of Louisiana filed a motion to dismiss. As my colleague Imani Gandy explains here, a motion to dismiss is a request to the court to throw out a case at its earliest proceedings, usually before any discovery has taken place. When deciding whether to grant one, the court is required to take all the factual allegations in the complaint as true. If the defendant disputes any of these allegations, the proper course is for the court to deny the motion to dismiss and allow the case to proceed through discovery, where the parties can collect evidence to either prove or disprove the allegations.
And that’s exactly what happened in this case. In March 2018 the district court denied Louisiana’s motion to dismiss. After some procedural wrangling that included the plaintiffs filing an amended complaint and another motion to dismiss that was also denied, the case was about to proceed to discovery. There, the plaintiffs could have the opportunity to prove the network of regulations pose an undue burden on abortion rights.
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Instead, Louisiana filed a petition for a writ of mandamus, or an emergency request to the Fifth Circuit Court of Appeals asking for the case to be dismissed.
The state is now arguing that by not dismissing the lawsuit, the district court is trampling on its rights and forcing it to continue shouldering the burden of defending the constitutionality of regulations the state itself passed. According to Louisiana, the lower court has created a legal emergency that the Fifth Circuit must step in and fix immediately.
The argument is as outlandish as it is dangerous. But it’s one the panel of judges Friday appeared willing to accept.
First, let’s address the outlandishness of Louisiana’s argument that a routine denial of a motion to dismiss is an unacceptable intrusion into state sovereignty. To begin with, mandamus allows appellate review of an issue before a case has come to conclusion, but only if the district court “clearly and indisputably erred” and the error is so bad an appeals court can’t wait for the case to first run its course in the lower court. Having to defend a lawsuit that credibly alleges that a scheme of anti-abortion restrictions is unconstitutional is not the kind of emergency mandamus is designed to address. Courts deny motions to dismiss all the time and doing so does not rise to the level of a jurisprudential emergency.
Furthermore, if Louisiana thinks the court got the legal basis for denying the motion to dismiss wrong, the proper procedural course would be to make those arguments on appeal at the conclusion of the lower court proceedings. Not beforehand. Louisiana’s motion here is just another example of anti-choice conservatives circumventing proper judicial procedure to try and make their arguments before a more sympathetic set of judges.
Now, a word on just how dangerous this argument is.
A success for Louisiana would effectively gut Whole Woman’s Health v. Hellerstedt as precedent. The heart of Louisiana’s argument is that instead of arguing that the entire system of challenged regulations is unconstitutional cumulatively, plaintiffs must instead prove why each challenged restriction individually is unconstitutional. Among the regulations challenged are requirements that providers send the state a copy of each patient’s ultrasound image and that providers give patients false information about abortion, including junk-science claims that the procedure causes breast cancer. In Whole Woman’s Health, Texas made this exact same argument and the Supreme Court rejected it outright. For the Fifth Circuit to turn around and endorse that argument now by granting Louisiana’s request would be nothing short of a repudiation of precedent.
Frankly, though, there’s every reason for Louisiana to believe the Fifth Circuit would be sympathetic to its arguments that this lawsuit should be dismissed. The conservative federal appeals court has already had to be reigned in once by Chief Justice John Roberts for going rogue and trying to enforce a different set of unconstitutional Louisiana anti-abortion restrictions. In that case, which is still lingering before the Supreme Court, the Fifth Circuit ruled Louisiana could enforce restrictions identical to the ones the Supreme Court had struck as unconstitutional in Whole Woman’s Health.
Here the state of Louisiana is once again asking the Fifth Circuit to disregard precedent. During oral arguments Friday, it appeared as though the judges were inclined to grant that request. The panel included two Trump appointees: Judge Andrew Oldham, who before joining the Fifth Circuit defended the Texas restrictions at issue in Whole Woman’s Health, and Judge Don Willett. Judge Priscilla Owen, a notorious anti-choice member of the conservative appeals court, was the panel’s final judge.
And that panel basically allowed the state of Louisiana to make its argument to dismiss the lawsuit nearly uninterrupted. That suggests the judges had few, if any, concerns to press the state on. Similarly, the attorney for the state of Texas—who is an amicus in the proceedings and argued the lawsuit should be dismissed, in part because the state of Texas is currently defending identical litigation—faced a receptive bench.
But when it was time to hear from attorneys challenging Louisiana’s regulatory scheme, the questions came immediately and relentlessly. The judges pressed the attorneys on whether the clinic and providers even had standing to bring this lawsuit. The judges second-guessed factual allegations in the complaint, something appellate courts are not usually supposed to do.
These lines of inquiry suggest the judges are probing for that “clear and indisputable error” by the district court that would give them an excuse to dismiss the lawsuit against Louisiana.
The Fifth Circuit is expected to rule quickly on Louisiana’s request, perhaps as soon as the end of this week. Should the panel grant mandamus and order the lawsuit dismissed, it is almost certain that the Roberts Court will at some point have to intervene. The federal courts are freshly radicalized on the anti-abortion cause, thanks in large part to the historic number of Trump appointees. Undoing Whole Woman’s Health v. Hellerstedt is a clear judicial priority for conservatives. But once again, the question is: Will Chief Justice John Roberts let the lower courts attack abortion rights precedent so brazenly?
I doubt it. Roberts is no friend to the reproductive rights movement. But his desire to at least try to maintain some appearance of proper procedure in the federal judiciary by reigning in these rogue courts may be the closest reproductive rights advocates come to a conservative ally on the federal bench.