Court Invalidates Louisiana Admitting Privileges Law

Court Invalidates Louisiana Admitting Privileges Law

Legal Sidebari
Court Invalidates Louisiana Admitting
Privileges Law
July 13, 2020
In a recent decision, the U.S. Supreme Court struck down a Louisiana law that required physicians who
perform abortions to have admitting privileges at a hospital within 30 miles of the location where the
procedure is performed. In June Medical Services v. Russo, a majority of the Court concluded that the law
imposed an undue burden on a woman’s ability to obtain the procedure. Justice Breyer authored an
opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, that relied heavily on Whole Woman’s
Health v. Hellerstedt—the Court’s 2016 decision that invalidated Texas’s admitting privileges law. Justice
Breyer maintained that the laws being reviewed in June Medical Services and Whole Woman’s Health
were “nearly identical” and that the Louisiana law “must consequently reach a similar conclusion.” In a
separate opinion, Chief Justice Roberts concurred in the judgment, emphasizing that the legal doctrine of
stare decisis required June Medical Services to be decided like Whole Woman’s Health. At the same time,
however, the Chief Justice reiterated his belief that Whole Woman’s Health was wrongly decided and
criticized how the undue burden standard used to evaluate abortion regulations was applied in both cases.
This Sidebar provides background on the undue burden standard and Whole Woman’s Health, and
examines the opinions of Justice Breyer and Chief Justice Roberts in June Medical Services. The Sidebar
also reviews some of the dissenting opinions filed in the case.
The Undue Burden Standard and Whole Woman’s Health
The undue burden standard used to evaluate the constitutionality of an abortion regulation was adopted by
a plurality of the Supreme Court in 1992. In Planned Parenthood of Southeastern Pennsylvania v. Casey,
the plurality determined that an abortion regulation violates the substantive component of the Fourteenth
Amendment’s Due Process Clause if it imposes an undue burden on a woman’s ability to obtain the
procedure. The plurality explained that an undue burden exists if the purpose or effect of an abortion
regulation is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability.” Applying the undue burden standard to five provisions of the Pennsylvania Abortion
Control Act, the Casey plurality upheld the law’s 24-hour waiting period requirement, its informed
consent provision, its parental consent provision, and its recordkeeping and reporting requirements. The
plurality invalidated the law’s spousal notification provision, which required a married woman to tel her
husband of her intention to have an abortion. The plurality explained that the requirement created a
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substantial obstacle for a significant number of women seeking an abortion because of the possibility of
spousal abuse.
Evaluating Texas’s admitting privileges law in Whole Woman’s Health, the Court provided additional
guidance on the undue burden standard. The Court, with former Justice Anthony Kennedy joining the four
Justices in the June Medical Services plurality, maintained that the standard requires a reviewing court to
balance the health benefits conferred by an abortion regulation for women seeking the procedure against
any burdens imposed on abortion access. After examining the Texas law and considering the evidence
collected by the district court, the Court concluded that the law did not cure a significant health-related
problem or provide any health benefit. At the same time, however, the law resulted in the closure of
abortion facilities, increased driving distances for women seeking abortions, and longer wait times for the
procedure. Balancing these burdens against the absence of any health benefit, the Court concluded that
the law imposed an undue burden. The Court also invalidated a separate requirement for abortion
facilities to satisfy the same standards as ambulatory surgical centers after similarly balancing the benefits
and burdens of that requirement.
June Medical Services v. Russo
In June Medical Services, the Court considered not only the constitutionality of Louisiana’s admitting
privileges law, but a procedural question involving standing and whether abortion providers can chal enge
an abortion regulation on behalf of their clients. In general, under Article III of the U.S. Constitution,
plaintiffs in federal court must assert their own rights and not those of third parties. The Court, however,
has recognized third-party standing when the real party in interest cannot assert her own rights and a third
party has a close relationship with her. In June Medical Services, the state argued that the petitioners – an
abortion clinic and physicians who perform abortions – did not have standing because they did not have a
close relationship with abortion patients. Louisiana also contended that the petitioners’ opposition to a
health regulation intended to protect patients evidenced a conflict of interest with these patients , making
them an unsuitable party to assert the rights of their clients.
Plurality Opinion. In the plurality opinion, Justice Breyer concluded that the state waived its standing
argument when it opposed the petitioners’ initial request for a temporary restraining order against the
admitting privileges law. In a memorandum opposing the request, Louisiana had stated that there was “no
question that the physicians had standing to contest [the law.]” Accordingly, the plurality determined that
the State’s “unmistakable concession” barred the Court’s consideration of the argument. Nevertheless, the
plurality also emphasized the Court’s longstanding recognition of abortion providers invoking the rights
of their actual and potential patients in chal enges to abortion regulations. Citing several of the Court’s
past decisions from both the abortion context and beyond in which third-party standing was recognized
even with seeming conflicts of interest at stake, Justice Breyer indicated that the plurality would not have
undone those decisions even if the state had not conceded the argument. Chief Justice Roberts, in a
footnote in his concurring opinion, indicated his agreement with this portion of the opinion.
Addressing the merits of the admitting privileges law, Justice Breyer applied the undue burden standard,
reiterating that the standard requires balancing an abortion regulation’s benefits against any burdens it
imposes. The plurality maintained that the district court faithfully engaged in this balancing, and reviewed
the evidence collected by the court to determine whether its evidentiary findings were clearly erroneous.
The district court found that admitting privileges are not relevant to a patient’s care and do not provide a
significant health benefit. The lower court also determined that the law ’s enforcement would reduce the
number of Louisiana physicians performing abortions and result in the closure of most of the state’s
abortion facilities. Balancing these burdens against the absence of any notable health benefit, the district
court concluded that the law was unconstitutional.

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The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision, contending that the
law provides a credentialing function that promotes women’s health. The Fifth Circuit disputed the
district court’s finding that the law’s enforcement would result in facility closures, explaining that several
of the state’s abortion providers did not make a good faith effort to obtain admitting privileges. In the
view of the Fifth Circuit, if these providers made such an effort, they could obtain admitting privileges
and abortion facilities would not close. Consequently, any burdens associated with facility closures would
be minimized.
The plurality concluded that the district court’s factual determinations were supported by ample evidence
and were not clearly erroneous. With regard to any health benefit associated with an admitting privileges
requirement, Justice Breyer discussed both the district court’s findings, as wel as similar findings by the
district court in Whole Woman’s Health. Writing for the Court in Whole Woman’s Health, Justice Breyer
emphasized that deference should be given to the district court’s evaluation of the record evidence. Both
district courts determined that an admitting privileges requirement serves no “relevant credentialing
function” because privileges may be denied for reasons other than a doctor’s ability to perform abortions.
Both courts also found that the background vetting for admitting privileges does not add significantly to
what is already conducted by state medical examination boards.
The plurality also maintained that direct and circumstantial evidence supported the district court’s finding
that the admitting privileges law burdened abortion providers. For the plurality, this evidence refuted the
Fifth Circuit’s conclusion that some providers did not act in good faith to obtain admitting privileges. For
example, direct evidence established that some of the providers were denied privileges for reasons other
than their ability to safely perform abortions. And circumstantial evidence il ustrated how application
costs and reputational risks that accompany rejection could prevent the providers from seeking privileges
at some hospitals. According to the plurality, the evidence collected by the district court also supported its
conclusion that enforcement of the admitting privileges law would result in the closure of most of the
state’s abortion facilities. For the plurality, fewer abortion facilities would create additional burdens for
women seeking abortions, such as longer wait times and increased driving distances.
Accepting the district court’s findings, including its balancing of the burdens imposed by the admitting
privileges law against the absence of any real health benefit, the plurality agreed with the lower court’s
conclusion that the Louisiana law imposed an undue burden on a woman’s ability to obtain an abortion.
For the plurality, because the district court applied the undue burden standard in the same manner as the
district court in Whole Woman’s Health, the same result was required.
Chief Justice Roberts’s Concurrence. Concurring in the judgment, Chief Justice Roberts agreed that the
Louisiana law and the Texas law at issue in Whole Woman’s Health were nearly identical. Although he
dissented in Whole Woman’s Health and indicated in his concurrence that the Texas case was wrongly
decided, he nevertheless maintained that stare decisis requires the Louisiana law to be invalidated:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision
four years ago invalidating a nearly identical law. The Louisiana law burdens wome n seeking
previability abortions to the same extent as the Texas law, according to factual findings that are not
clearly erroneous.
The Chief Justice emphasized that adherence to precedent is necessary to avoid arbitrary decision making
in the courts and promotes the “predictable and consistent development of legal principles.”

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Despite his concurrence in the judgment, Chief Justice Roberts expressed skepticism over how the undue
burden standard is now applied as a result of Whole Woman’s Health. Discussing the balancing of an
abortion regulation’s benefits and burdens, the Chief Justice contended that nothing in Casey suggested
that courts should engage in this kind of weighing of factors. According to the Chief Justice, Casey
focused on the existence of a substantial obstacle as sufficient to invalidate an abortion regulation and did
not “cal for consideration of a regulation’s benefits[.]” Reviewing the burdens imposed by the Louisiana
law, such as fewer abortion providers and facility closures, the Chief Justice agreed with the plurality that
“the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the
same determination about Louisiana’s law.” However, the Chief Justice further observed that “the
discussion of benefits in Whole Woman’s Health was not necessary to its holding.”
Because only four Justices in June Medical Services viewed Casey to require courts to balance an
abortion regulation’s benefits and burdens, one might suggest that Chief Justice Roberts’s formulation of
the undue burden standard should be controlling. The Supreme Court has maintained that when a
fragmented Court decides a case and five Justices do not agree to a single rationale for the decision, its
holding may be viewed as the position taken by those who concurred in the judgment on the narrowest
grounds. Here, the Chief Justice’s concurrence in the judgment, applying the undue burden standard with
a focus only on the burdens imposed by the Louisiana law, could be viewed as the narrowest position
supporting the judgment and could be informative for future chal enges to abortion regulations.
Dissenting Opinions. In his dissenting opinion, Justice Alito also questioned the use of a balancing test to
determine whether an abortion regulation imposes an undue burden on the ability to obtain an abortion.
Justice Alito maintained that Whole Woman’s Health “simply misinterpreted Casey . . . [and] should be
overruled insofar as it changed the Casey test.” In a separate dissenting opinion, Justice Gorsuch
criticized the balancing test not so much as a misinterpretation of Casey, but as an unpredictable test that
wil produce different results based on the factors considered by a given judge and the weight accorded to
each of them. Rather than provide helpful guidance to courts, Justice Gorsuch contended:
The plurality’s test offers no guidance. Nor can it. The benefits and burdens are incommensurable,
and they do not teach such things in law school. When judges take it upon themselves to assess the
raw costs and benefits of a new law or regulation, it can come as no surprise that ‘[s]ome courts
wind up attaching the same significance to opposite facts,’ and even attaching the opposite
significance to the same facts.
Justice Gorsuch also rejected the Chief Justice’s formulation of an undue burden standard that considers
only whether the burdens imposed by an abortion regulation place a substantial obstacle in the path of a
woman seeking an abortion. Under that standard, Justice Gorsuch reasoned, even the most compel ing
and narrowly tailored medical regulation would be invalidated if it was found to place a substantial
obstacle in a woman’s path. Justice Gorsuch noted that such a standard could “prove [to be] stricter than
strict scrutiny”—a legal standard disavowed by Casey.
In another dissenting opinion, Justice Thomas reiterated his view that Roe v. Wade and its progeny were
wrongly decided. Contending that the Constitution does not constrain the states’ ability to regulate or even
prohibit abortion, Justice Thomas observed: “[T]he putative right to abortion is a creation that should be
undone.” Justice Kavanaugh, also in dissent, maintained that additional fact finding was needed to assess
whether Louisiana’s admitting privileges law imposed a similar burden as the Texas law at issue in Whole
Woman’s Health.

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After June Medical Services
Justice Kennedy’s retirement and the confirmation of Justices Gorsuch and Kavanaugh in the years since
Whole Woman’s Health was decided fueled interest in June Medical Services. Some believed that the
reconstituted Court might interpret and apply the undue burden standard in a different manner. However,
because of its similarity to Whole Woman’s Health, Chief Justice Roberts concurred in the judgment of
the Court, and June Medical Services did not ultimately produce a different outcome from the 2016
decision. Nevertheless, the opinions of the Chief Justice and various dissenting justices il ustrate a
skepticism with the balancing test used in Whole Woman’s Health. As a result, the June Medical Services
dissenters could join the Chief Justice to adopt a different test in a future abortion case, such as an undue
burden standard, as suggested by the Chief Justice, that focuses only on an abortion regulation’s burdens
and not its benefits. Applying the undue burden standard in Casey, before the adoption of the Whole
Woman’s Health balancing test, the plurality invalidated just one of the five chal enged requirements of
the Pennsylvania Abortion Control Act. The Casey plurality concluded that only the act’s spousal
notification requirement placed a substantial obstacle in the path of a woman seeking an abortion.
As states continue to adopt a variety of new laws regulating abortion, it seems likely that new legal
chal enges wil occur. In light of Whole Woman’s Health and June Medical Services, courts evaluating
these laws are to continue to consider their related health benefits and burdens. When such a case next
appears before the Court is uncertain. However, in his dissent, Justice Gorsuch suggested that another
case should be expected: “Some judges have thrown up their hands at the task put to them . . . If
everything comes down to balancing costs against benefits, they have observed, ‘the only institution that
can give an authoritative answer’ is this Court[.]”

Author Information

Jon O. Shimabukuro

Legislative Attorney

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