AG Watch: Planned Parenthood v. Jegley
On May 29, the Supreme Court denied certiorari in Planned Parenthood v. Jegley, a case involving an Arkansas law requiring that medication abortion providers have a contract with a physician who agrees to ensure that patients experiencing complications can access follow-up care. Planned Parenthood’s petition sought review of a unanimous Eighth Circuit Court of Appeals decision vacating a preliminary injunction against Arkansas’s requirement and argued that Arkansas’s requirement mirrored Texas’s 30-mile admitting privileges requirement for all abortion providers struck down in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
In March 2015, Arkansas adopted a law mandating that medication abortion providers give patients “the name and phone number” of a physician who has contracted with the provider “to handle complications” and “emergencies associated with . . . abortion-inducing drug[s].” That contract physician—but not the provider—must have admitting privileges at an Arkansas hospital, and he or she is required to ensure patients receive follow-up care.
In a lawsuit brought by Planned Parenthood, a federal district court preliminarily enjoined that law because it believed Planned Parenthood could not comply and that, as a result, Planned Parenthood would stop performing abortions at two Arkansas facilities. That, the district court reasoned, imposed an undue burden because it could cause “some women” near one of those facilities to forgo or delay an abortion due to the distance to the next closest Arkansas abortion facility.
Eighth Circuit Opinion
The Eighth Circuit unanimously vacated the district court’s decision and remanded with instructions for the district court to determine whether Arkansas’s requirement likely imposes an undue burden on a large fraction of relevant patients. As that court explained, at a minimum, under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), a party seeking facial relief must demonstrate that a large fraction of patients would face a substantial obstacle. Far from making that determination, as the Eighth Circuit explained, the district court had merely suggested that “some women” would face increased distances and might forgo or delay an abortion. Moreover, in remanding, the Eighth Circuit held that under Hellerstedt’s balancing test, to demonstrate facial invalidity, a plaintiff must establish—not merely that a law imposes more burdens than benefits but—that a regulation’s “benefits are substantially outweighed by the burdens it imposes on a large fraction of [relevant] women.”
Petition for Certiorari
Planned Parenthood asked the Court to grant review and dramatically expand Hellerstedt’s reach by concluding that admitting privileges provisions always impose an undue burden. But as Arkansas’s brief in opposition explained, Hellerstedt does not stand for such a broad rule. To the contrary, in invalidating Texas’s requirement that abortion providers have admitting privileges within a 30-mile radius, Hellerstedt explicitly relied on (and impliedly blessed) a preexisting Texas provision requiring abortion providers to have a “‘working arrangement’ with a doctor with admitting privileges.” Indeed, far from broadly invalidating admitting privileges provisions, Hellerstedt stands for the much narrower proposition that where a regulation does not do anything more than existing law to advance a state’s legitimate interest in protecting women’s health and imposes a de facto barrier to abortion access for a large fraction of women it imposes an undue burden.
Despite not garnering a single dissenting vote for their position before the Court, after denial, Planned Parenthood immediately returned to the district court and less than two weeks after Arkansas’s requirement went into effect obtained a new temporary restraining order. Thus, the parties will continue to litigate this case and another appeal to the Eighth Circuit is likely.