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Analysis Law and Policy

Did the Fifth Circuit Just Try to Make It Harder to Bring an Abortion Rights Challenge?

Jessica Mason Pieklo

The Fifth Circuit refused to dismiss a challenge to a web of anti-choice restrictions in Louisiana. But don't call it a win for abortion rights.

When the U.S. Court of Appeals for the Fifth Circuit rules against a state defending some outlandish anti-abortion regulation, it’s usually a moment to celebrate. Wins for abortion rights are exceedingly rare in the conservative appellate district, after all, and they should be savored.

In that spirit, it’s good news that last week the Fifth Circuit denied an emergency request by the State of Louisiana to dismiss a lawsuit challenging a web of abortion restrictions in the state. Louisiana’s request for the Fifth Circuit to effectively end the lawsuit at its earliest stages was extreme, even by anti-choice advocates’ standards, and the panel of judges considering the request seemed dangerously close to granting it. That they didn’t should be commemorated given the circuit’s historic hostility to abortion rights. But the win manages to serve as a warning: If the Fifth Circuit gets its way, it is going to be much harder for plaintiffs challenging abortion rights regulations to have their day in court.

In June 2017, reproductive rights advocates filed a lawsuit challenging a host of anti-abortion restrictions in Louisiana that regulate everything from what documents abortion providers must provide the state to what information—true or not—providers must disclose to patients. The lawsuit builds off the 2016 abortion rights victory in Whole Woman’s Health v. Hellerstedt that struck two Texas abortion restrictions as unconstitutional. In particular, the lawsuit seeks to build off the part of Whole Woman’s Health that recognized that abortion restrictions can cumulatively add up to unduly burden abortion rights, opening up new pathways for plaintiffs to challenge networks of abortion restrictions that work together to squeeze off abortion access.

Shortly after advocates filed their lawsuit, attorneys for the State of Louisiana filed a motion to dismiss the allegations that would have thrown out the case at its earliest stages and before any discovery on the factual allegations in the complaint had taken place. When a court is considering a motion to dismiss, it is required to take all the facts alleged in the complaint and assume them to be true at that stage in the proceeding. If a defendant disputes a particular factual claim, then the routine course is not for the court to grant the motion to dismiss and toss the case out of court, but to deny the motion to dismiss and allow the case to proceed to discovery. That’s because discovery is the “fact-finding” stage of litigation, where any evidence to settle a factual dispute, if it exists, is disclosed.

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Defendants routinely file a motion to dismiss as a way to try and get plaintiffs to more clearly articulate the case they are trying to make and as a way to help refine defense strategy early on in the litigation. Because they happen early in the litigation process, courts routinely deny motions to dismiss and allow plaintiffs the opportunity to develop the factual evidence to support their claims with the understanding that if the plaintiffs are unable to do so, the court will likely toss their case close to trial.

And that is exactly what the district court did when it denied Louisiana’s motion to dismiss in March 2018. The case proceeded with the plaintiffs amending their complaint to further refine their claims and the State of Louisiana filing another motion to dismiss that was also denied.

That’s when things in the case got weird. Instead of proceeding to discovery and forcing the challengers to develop evidence to support their claims or risk summary judgment against them, attorneys for the State of Louisiana filed an emergency request with the Fifth Circuit asking it to dismiss the case. And the Fifth Circuit seriously considered doing so.

Thankfully it did not and instead turned away Louisiana’s request—but not without spending over 30 pages explaining why it would have liked to rule in Louisiana’s favor.

“This is an extraordinary case,” the opinion opens. But the three-judge panel was not talking about Louisiana’s request that the appeals court take the extreme measure of dismissing the challenge to the web of abortion restrictions. Rather they were referencing that the plaintiffs articulated a “cumulative effects” theory, an argument built off Whole Woman’s Health that abortion restrictions can work in concert and in their totality unduly burden abortion rights. Yes, individual restrictions can unduly burden abortion rights, the plaintiffs claim, but so too can networks of restrictions when taken together, as is the case in Louisiana.

What makes this case “extraordinary,” from the Fifth Circuit’s perspective, is that that the plaintiffs had the audacity to rely on Whole Woman’s Health to bring it at all.

In denying Louisiana’s request, the Fifth Circuit ordered the case back to the lower court to determine if the plaintiffs have legal standing to bring all of the claims in their complaint, suggesting that there wasn’t enough evidence that each of the challenged restrictions were causing the plaintiffs any legal harm or injury. That means that the lower court must now go through each individual regulation identified in the lawsuit and determine if the plaintiffs have a legal basis to bring a challenge to that regulation, despite the fact that the plaintiffs are alleging the cumulative harm of these regulations working in concert to restrict abortion access. The Fifth Circuit just demanded the plaintiffs be able to assert why they should be able to bring any of these individual claims at all.

“The plaintiffs’ theory, as we understand it, is that Louisiana’s various laws and regulations regarding abortion cumulate to an undue burden,” the opinion states. “But before any federal court can analyze the ‘cumulative effects’ of Louisiana’s laws, we must know which laws Plaintiffs have standing to challenge.”

“Perhaps they lack standing in ways not explored here,” the opinion states. “Perhaps they have standing in others. We leave that for the district court to decide on a provision-by-provision basis.”

The question of who has standing to bring legal challenges to abortion restrictions and what that legal standing requires plaintiffs to show is a very live legal question, now that the Roberts Court has agreed to review standing later this term when it takes up a different abortion rights case out of Louisiana, June Medical Services v. Gee. Conservatives have been trying to narrow the scope of legal standing in abortion rights cases for decades, in part because if fewer people or organizations have the ability to bring claims against laws restricting abortion rights, the more likely those laws are to go unchallenged.

That’s not unlike what the Fifth Circuit is setting up with last week’s order.

The plaintiffs in this case challenge numerous regulations and restrictions, including a variety of reporting and record-keeping requirements. Individually, a requirement that abortion clinics enact “safeguards” to protect patient-privacy may not harm providers enough to create an undue burden on abortion rights. But when considered alongside all the other reporting and record-keeping requirements Louisiana requires of abortion providers, those requirements cumulatively create the kind of harm that does amount to an undue burden.

The Fifth Circuit essentially wants plaintiffs to tease out each instance of individual harm at the earliest stages of litigation—before a court should allow them to proceed with claims that the entire system unduly burdens abortion rights. It’s a way to try and short-circuit cumulative effects claims based off Whole Woman’s Health v. Hellerstedt before the theory can effectively undermine state regulatory networks that have historically targeted abortion providers for heightened restrictions as a means to roll back abortion rights. It’s also a way to limit challenges to abortion rights generally by suggesting a different, more difficult pleading standard in early litigation for abortion rights challenges than for other types of claims. And it just might work.

The case now heads back to the district court, where the plaintiffs will have to engage in that “provision-by-provision” analysis mandated by the Fifth Circuit for their case to proceed. Should the district court rule against the plaintiffs on standing grounds, it could unravel their combined claims against Louisiana—which is likely the outcome the conservative panel of Fifth Circuit judges hope to see.

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