Tuesday, March 03, 2020

To Ask the Question Presented in June Medical is to Answer it

by Michael C. Dorf

Tomorrow the Supreme Court will hear oral argument in June Medical Services LLC v. Russo. The case presents the following question: "Whether the U.S. Court of Appeals for the 5th 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." Whole Woman's Health invalidated a Texas law requiring physicians who perform abortions to have admitting privileges at a local hospital, so unless the Constitution means something different in Louisiana from what it means in Texas, the obvious answer to that question is yes. Nonetheless, one would have to be very naive to think there is not a substantial possibility that Louisiana will prevail.

(1) Merits.

My view on the merits appears in an amicus brief of fifteen constitutional scholars. I commend the brief to interested readers. Here I'll just highlight one line of argument we present in our brief.

Even though the state's lawyers won't admit it, everyone knows that the real basis for the Louisiana law is not protecting women's health but making abortions more difficult to obtain. Likewise, everyone knows that if they reach the merits (see 2 below), those Justices inclined to uphold the Louisiana law without formally overruling Whole Woman's Health will rely--as the Fifth Circuit did--on ostensible but bogus distinctions between how the Louisiana law and the virtually identical Texas law operate in practice. But to see why those distinctions are bogus, one must have some account of how lower courts should implement balancing tests.

Planned Parenthood v. Casey as explained in Whole Woman's Health sets forth a balancing test that measures the benefits a law provides against the burdens it imposes. In principle, a balancing test could come out differently in different states even with identically worded statutes if the laws are implemented differently or local circumstances differ substantially. For example, in a small densely populated state in which hospitals regularly grant admitting privileges to doctors who perform abortions, a law like the Texas and Louisiana ones would be less burdensome than it actually is in Texas and Louisiana.

But the possibility that a balancing test could result in different outcomes in different states cannot fairly be used to justify affirming the Fifth Circuit in June Medical because the benefits of an admitting-privileges law--as a general matter everywhere--are slight to nonexistent. Indeed, they're probably negative, insofar as they simply make abortions harder to get and thus likely delay abortions, leading to more complications. Justice Breyer was formally deferring to the district court findings about the nonexistent benefits of the Texas admitting privileges law in Whole Woman's Health, but just about all the evidence he cited was from the peer-reviewed medical literature rather than anything specific to Texas.

The absence of benefits alone should be enough to invalidate the Louisiana law, but to the extent that one thinks burdens also matter, Louisiana simply isn't relevantly different from Texas. That's what the district court found in June Medical, and as our brief notes, it is extraordinary for an appeals court to overrule such a decision.

To be sure, one could imagine a different case presenting a somewhat harder question. June Medical was assigned to a district judge who did not disguise anti-abortion normative views as findings of fact. Not all plaintiffs will be so lucky. Suppose that a district judge who is hostile to abortion rights (as many are) made factual findings to the effect that an abortion regulation like the admitting-privileges requirement has substantial medical benefits or is not unduly burdensome on the abortion right. Would that also be entitled to deference?

Maybe, but any deference under those circumstances would have to be tempered with skepticism, especially in light of Justice Breyer's opinion for the Court in Whole Woman's Health, which did not rely much on Texas-specific findings. Put differently, when the Supreme Court articulates a balancing test, it falls to district judges to apply that test in future cases. Reviewing courts should then be especially alert to the possibility that the district court disguised hostility to the underlying constitutional test in the form of findings of fact.

To reiterate, however, that circumstance is not presented by June Medical, which involves the exact opposite situation: the district judge faithfully applied Whole Woman's Health; then the appeals court disregarded the ordinary deference due to district court factual findings so that the appeals court itself could undercut the right recognized by the Supreme Court. That's why the stakes of June Medical include not only abortion rights but the integrity of the Supreme Court's own role in the federal judiciary.

* * *

There is thus no intellectually honest way for the Court to uphold the Louisiana law without effectively overruling Whole Woman's Health. Thus, I hope the Court reverses the Fifth Circuit. Suppose my hopes are dashed. How might the Court dash them?

One way would be the sort of intellectual dishonesty I've just described: pretend to follow Whole Woman's Health and draw bogus distinctions between Louisiana and Texas. More forthrightly, the Court might overrule Whole Woman's Health without purporting to overrule Roe v. Wade or Casey. But I suspect that if CJ Roberts were inclined to affirm the Fifth Circuit, he would want to do it in a way that brings the least attention to the Court. He therefore might be attracted to a procedural option. That takes us to . . .

(2)  Third-party standing.

What if the Court were to decide in Louisiana's favor while nominally ducking the abortion question entirely by ruling that the doctors and clinics lack standing to object to burdens on women's health? That is a live possibility because, in addition to the plaintiffs' cert petition, the Court granted the cross-petition of Louisiana objecting to standing. The cross-petition asks the following question: "Whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a 'close' relationship with their patients and a 'hindrance' to their patients' ability to sue on their own behalf."

That question is ill-framed because one need not presume anything. Decades of case law and common-sense indicate that doctors have sufficiently close relationships with their patients to make arguments in patients' interests and, with respect to hindrance, the short duration of pregnancy relative to the pace of litigation means that, as a practical matter, women seeking abortions typically cannot bring these sorts of cases on their own. A Federal Courts Scholars amicus brief explains these points and more in persuasive detail. Meanwhile, to the extent that the state is really making a claim that the doctors and clinics lack Article III standing, that's wrong too, as Leah Litman and Steve Vladeck explain in this SCOTUSblog essay.

The standing objections are thus weak, but might it be in some sense "better" for the abortion-rights community to lose on standing than to lose on the merits? Possibly, but that depends on two factors.

(a) A ruling that only women who are pregnant can challenge abortion restrictions might be coupled with the loosening of restrictions on such challenges. At a minimum, the Court would need to provide assurances that such cases do not become moot when the pregnancy ends (either in birth or an abortion), pursuant to the exception to mootness for cases that are capable of repetition yet evading review.

Even so, the problem posed by pregnancy's short duration is not just mootness but finding plaintiffs to challenge the relevant abortion restrictions during the brief window between (i) the woman's seeking an abortion and discovering that there are no providers available and attributing it to the admitting-privileges law and finding her way to a lawyer rather than addressing her urgent need by, say, traveling out of state if she can; and (ii) the pregnancy's termination by either abortion or birth. Even though  Louisiana's law burdens a great many women, it burdens each of them for a short (albeit critical) period. The capable-of-repetition exception is not well suited to addressing that problem.

Nor does the capable-of-repetition exception do anything to address the incentive problem. A woman who is genuinely in need of an abortion will not be motivated to litigate simply in order to obtain a ruling that could benefit her should she need another abortion in the future. Accordingly, doctors, clinics, public-interest litigation shops like the ACLU or the Center for Reproductive Rights and/or national organizations like Planned Parenthood and NARAL would have to go out looking for plaintiffs they can convince to file suit in the very short window between a case becoming ripe and its becoming moot (even if capable of repetition). They are unlikely to find such plaintiffs.

But suppose plaintiffs can be found. In order for a standing ruling to be effectively harmless it would have to be effectively pointless, changing how some future abortion cases are captioned but not the real parties in interest. (I say "some," because there have been cases that fit the paradigm I've just described already. Roe v. Wade itself is the best-known example.)

Bottom line: If abolishing third-party standing for abortion challenges has a real impact, that impact will be negative, which will simply demonstrate that third-party standing for doctors and clinics was justified on "hindrance" grounds in the first place; and in the unlikely event that abolishing third-party standing would not substantially undercut the ability to obtain court rulings invalidating unconstitutional abortion restrictions, the abolition would be pointless--a purely formal exercise.

Put differently, to dismiss the case on third-party standing grounds, the Court must make a decision that, by its own terms, proves itself wrong--or at best proves itself pointless, except for the cynical short-term point of ducking the case.

(b) Even though a standing ruling would likely have a substantial limiting effect in future cases, one still might think it less bad than a ruling that either expressly or tacitly cuts back on the substance of abortion rights. That's my very tentative view. My first choice would be for the Supreme Court simply to say there's no problem with standing and to reverse on the merits based on Whole Woman's Health. But if an erroneous standing ruling caused less harm than an erroneous substantive ruling, I'd take the former.

That's not everyone's calculus. Some excellent litigators I know think that a third-party standing ruling could do as much or even more damage than a disingenuous merits ruling. They may be right.

Meanwhile, it's possible to take what we might call a Trotskyite the-worse-the-better view. The idea here is that the Court has been whittling down the abortion right now for nearly four decades, so that the right is hollow, but so long as the key cases aren't officially overruled, pro-choice voters are complacent. A clear defeat on the merits in the Supreme Court, in this view, could energize the pro-choice side politically. Yesterday's NY Times editorial covers some of the same ground I've covered here   and arguably gestures in the Trotskyite direction.

Having no crystal ball, I cannot rule out the Trotskyite view, but I tend to think that other things being equal one does better winning by winning, not winning by losing.