Courthouse Steps Preview: June Medical Services v. Russo

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This teleforum previews the upcoming March 4, 2020, Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services). These cases involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.

Featuring: 

Denise Harle, Senior Counsel, Alliance Defending Freedom

Prof. Stephen l. Vladeck, Professor of Law, The University of Texas at Austin School of Law 

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. This podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Monday, March 2, 2020, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Preview Teleforum on June Medical Services v. Russo. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Denise Harle, who is Senior Counsel at the Alliance Defending Freedom. We also have Professor Stephen Vladeck, who is a Professor of Law at the University of Texas at Austin School of Law. After our speakers give their opening remarks, we will then go to audience Q&A.

 

Thank you both for sharing with us today. Denise, the floor is yours.

 

Denise Harle:  Thank you. So this is a really interesting case because I think it's fun to speculate about why the Court took it and what the Court is going to do, which may be different things here.

 

      So the law at issue, Louisiana's Unsafe Abortion Protection act, was passed in 2014. And it required abortion doctors to have admitting privileges at a nearby hospital, just like Louisiana requires of other doctors performing outpatient procedures at ambulatory surgical centers. And Louisiana's argument was that this furthers the state's interest in doctor competence through a credentialing function and continuity of care for the patient.

 

      This was promptly challenged by an abortion clinic through medical services and some abortion doctors proceeding as Does. This was all around the time that Whole Woman's Health v. Hellerstedt was up at the Supreme Court and decided. So there was a trial in June Medical, an appeal. It was remanded in light of the Hellerstedt decision.

 

The law was enjoined on remand based on Hellerstedt. Then there was another appeal which reversed the district court and dismissed the case. And now, we're at the Supreme Court on cross petitions to decide a couple different questions that are pretty interesting.

 

As you probably heard, last February when June Medical's petition was pending before the Court, June Medical also sought a stay of the Fifth Circuit's decision upholding the law essentially. And that was granted 5-4, which caused a lot of people to speculate about what that might mean.

 

      So linking this over to Whole Woman's Health v. Hellerstedt, because you probably have already noticed how similar these laws sound, the Supreme Court struck down the Texas law 5-3 after Scalia had passed and Gorsuch was not yet confirmed. There were some serious problems in the Texas record that the Supreme Court pointed to. One is that the record in Hellerstedt did not reflect evidence of a real problem that the Texas admitting privileges were seeking to cure. So it was a very fact specific analysis.

 

Here, in contrast, Louisiana made an effort to put significant facts into legislative records of multiple incidences of abortion doctors in clinics not living up to the standard of care, failing to screen for competence, failing to stock emergency equipment, expired medications, and so forth. And in the Texas record as well, there wasn't any evidence of specific women who would've been helped by the law or who were helped by admitting privileges, whereas in Louisiana, there were several stories of women in both directions.

 

So women who had undergone abortions, had complications and then were able to be treated to prevent further harm because their doctor had admitting privileges, or on the flip side, there was a complication and because of a lack of admitting privileges, the women suffered extensively, and it could pretty well be traced to the fact that the abortion doctor was not able to admit and treat her.

 

      In Texas, if you recall, the majority of the clinics were shutting down, and it was pretty well tied to the admitting privileges law. So in Texas, the number of clinics went from 40 down to 8 versus in Louisiana, so far, only two clinics have closed for purportedly unrelated reasons. And at least one of the doctors has already obtained admitting privileges.

 

      In Texas, the records show that the number of women who would have to drive more than 150 miles to an abortion clinic would go up by about 350 percent. And in Louisiana, the record suggests that a little less than 1 in 3 women might have to wait longer for an abortion, up to about 54 minutes. Those are some of the factual differences there, and those are some of the main factors that the Fifth Circuit focused on when it distinguished published set in its opinion that's now on appeal.

 

      One of the questions that has emerged, that was not initially focused on because what everyone was focused on was application of Hellerstedtapplication of the Casey undue burden test, how did Hellerstedt change that, isn't this just the same thing—is a question of third-party standing. And this is something that Justice Thomas had flagged in his dissent in Hellerstedt, and of course, as we all probably know, third-party standing is generally prohibited. The idea being that a third-party is not the appropriate -- or a party has to meet certain standards in order to be able to fairly represent a third-party.

 

      For decades, though, federal courts have assumed that abortion providers have third-party standing to assert the constitutional rights of their patient, and usually, Singleton v. Wulff is a case that's cited to that. I'll get to that in a moment.

 

      So one of the questions raised in this case is whether third-party standing is a prudential doctrine, which is a bit more flexible, or whether it's an Article III matter that is jurisdictional. The abortion providers are arguing a few things but in part that third-party standing is prudential and that it was waived because Louisiana did not raise it below. But Louisiana argues that the third-party standing is really properly understood as a component of federal courts' limited jurisdiction under Article III which can't be waived or forfeited, and it requires an actual case or controversy, a redressable actual injury, and so forth.

 

And Louisiana cites to Supreme Court precedent saying that it has an independent obligation to assure itself of standing for obvious reasons like it ensures that the issues are being properly framed by a party that has the appropriate incentive to litigate the issue and give a fair presentation. And the Fifth Circuit did pass on the standing issue below earlier in the case when Louisiana sought a stay of the district court's injunction, the Fifth Circuit concluded that the abortion providers did have third-party standing.

 

      And Louisiana argues either way, the third-party standing should have the same requirements in abortion cases as it has in other litigation, meaning they have to be at least a close relationship between the party and the third-party whose rights are being asserted. And there has to be a real hindrance to the third-party asserting their own rights, neither of which Louisiana argues are present here because typically, the patient and the abortion provider have a one-time interaction. Often, the woman's already sedated on the operating table, and she never returns to the clinic. And there's no real hindrance because the women could proceed as Doe plaintiffs if they wanted.  

 

      I think the main difference here between Singleton v. Wulff, which would get cited a lot, is that in that case, Medicaid funding for abortion was the question. And the Court kind of recognized the exception to third-party standing if there's a close relationship in the identity of interest. And so what Louisiana has focused on and what the United States amicus brief in this case hits really hard is that the interests aren't apparently aligned in this case. Instead, there's a real conflict of interest.

 

So the way that the State puts it here is that abortion providers are challenging a law on behalf of patients, but the law is designed to protect those very same patients from unscrupulous and incompetent abortion providers. So it's sort of like -- the analogy that I use a lot is like if Ford Motor Company was claiming to represent its consumer's interest when it was challenging a law that required safer cars in some way. And so the idea being that we should be listening in this case to the women who are purportedly protected by this law, the women that Louisiana was trying to protect, if they raise a challenge to the law, so be it. But no women have challenged this law so far.

 

      And so I guess I'll just switch over now because I know the Professor will have a lot to say on standing, but I think the initial thing that we thought was all interesting about this case was just interpreting Hellerstedt. The previous standard was from Planned Parenthood v. Casey, and the rule is that a law is unconstitutional if it places an undue burden or so if it has the purpose or effect of placing a substantial obstacle in a woman's path to abortion. But a law is okay, on the flip side, if there is a rational basis and there is no undue burden.

 

      Casey also included a large fraction test, so it would have to be an undue burden on a large fraction of women affected by the law in order for the law to be unconstitutional. And that, of course, has led to a bunch of questions about what's large, and what's the denominator and so forth, which, perhaps, we'll get answered in this case.

 

      Hellerstedt actually raised the bar for that and kind of questioned to something like do the medical benefits justify the burdens? So rather than just is it an undue burden, are there benefits that outweigh the burdens? Which we're not sure exactly how different that is because maybe undue already captured the idea of benefit, but either way, Hellerstedt made pretty clear that the substantial obstacle portion was not something it was addressing or considering.

 

      And Hellerstedt also departed from the previous principle that legislatures decide issues of medical uncertainty. So in other words, some of the deficiencies in the Texas record that I had mentioned weren't subjects upon which the Court was going to give the benefit of the doubt to the state legislature, whereas before, it seemed that in the abortion jurisprudence, there was a deference to what states are doing.  

 

      To the bottom line on that point is just that assuming we get passed the standing issue and to the merits issue on the third question presented, the Court will be considering whether Whole Woman's Health v. Hellerstedt alters the Casey undue burden test and perhaps what large fraction means and potentially clarifying that which is why this is getting so much attention essentially.

 

Prof. Stephen Vladeck:  Great. Well, thank you, Denise. That's a good place to start.

 

      This is Steve Vladeck. I should say, if it wasn't obvious already, that I am a signer onto an amicus brief in support of, I guess it's the petitioner/cross respondents on the stand-in question. So I have at least some margin of an interest in this case beyond just the academic side.

 

      Let me start my part by just suggesting that it might be worth taking a step back and talking about both what this case is about and, more importantly, what it's not. I mean, I think there's obviously a lot of attention being paid to the case because it is the first abortion case the Supreme Court is hearing oral argument in with the new Conservative majority, that is to say since Justice Kennedy retired and was replaced by Justice Kavanaugh.

 

I don't think it's going to surprise anyone to suggest that Justice Kennedy really was the critical swing vote in almost all of the Court's recent abortion decisions, including the 2016 ruling in Whole Woman's Health v. Hellerstedt, which is so central to this case. And so I think a lot of folks are looking at this case as a bellwether on the future of abortion cases in the Supreme Court, if not even a referendum on Roe and Casey themselves.

 

      And I want to suggest, at least in my short time today, that I think that's not accurate. That I actually don't think this case really is a referendum on Roe or Casey. I actually do think it is on Hellerstedt, I'll get to that in a second. That I don't think it's a referendum on Casey. I don't think the Court is going to go out of its way to say much about Roe or Casey, but that I do think the real question is we're going to learn a lot, I think, about Justice Kavanaugh and where he ends up in these cases going forward.

 

      So I think it'll be a harbinger of things to come but probably not necessarily the referendum a lot of folks are expecting either as a good thing or a bad thing. I do think, though, as I gave away moments ago that this case is a referendum on the Supreme Court's 2016 decision in Hellerstedt. And, indeed, I think the Solicitor General arguably raised the stakes in that respect in his amicus brief which Denise referred to. So Denise noted the government's position as to both third-party standing and affirmance on the merits.

 

And I think one of the things worth stressing is the Solicitor General has also suggested that Hellerstedt should be overruled to the extent that the Court doesn't think it can distinguish it. That's a pretty remarkable thing for the federal government to be arguing that the Supreme Court, four years after issuing a constitutional decision where the only real change has been a change in membership on the Court, should nevertheless overrule a decision, and I want to come back to that toward the end.

 

Denise mentioned, I think, there are two big questions before the court: third-party standing and the merits. So, like her, let me take those in order. On standing, I think it's very important to note a point that I don't believe I heard Denise mention which is that the penalties that the Louisiana law imposes for violating the law at issue in this case. Those penalties are not directed at the women seeking abortions. They're directed at the providers.

 

So that is to say, a provider, like June Medical Services, who violates this statute faces a combination of civil and potentially criminal penalties as a provider. The notion that someone in that circumstance would lack standing to challenge a law that if they violate it, they could face significant fines, if not prison time, I think is rather striking when we frame it that way. That is to say yes, the underlying dispute in these cases is about abortion, but like so many other abortion laws, the focus is on abortions as performed by providers. And the way that the law has teeth is it punishes providers.

 

It would be a rather remarkable precedent for the Supreme Court to hold in those circumstances that providers cannot challenge a statute in court that may unconstitutionally subject them to serious penalties. So that's why I actually think it's not even obvious at first blush that this even is a case about third-party standing, that there are at least some respects in which the providers really have what we might call first-party standing.

 

But even if this does become a dispute about third-party standing, I think it's worth talking about some of the reasons why federal courts in general and the Supreme Court in particular have generally allowed doctors to challenge laws that affect their patients. So one reason, which I think is especially salient in the abortion context, is that patients often have temporary and/or time limited interest in laws that govern and regulate medical procedures. That is to say once the procedure has been effected or once the time in which the procedure could've been effected has expired, patients tend not to have continuing interest, the kinds of which support litigation of constitutional claims like these.

 

Second, doctors are in general often in a much better position than their patients to assess the overall benefits and burdens of laws regulating medical procedures and not just the benefits and burdens as applied to a particular patient in an individual case. And all this goes to why, in the context of abortion, the Supreme Court has long preferred facial challenges versus as-applied challenges. Both because pregnancy itself is of limited duration, and because there can be a significant chilling effect from leaving these laws on the books even if they're unconstitutional as applied to individual women.

 

That is to say if, as Denise suggests, one particular woman who's affected by the law were to come forward and succeed in an as-applied challenge, that doesn't solve the problem that the Supreme Court has for the better part of four decades suggested these laws impose. So as long as we're going to have a constitutional law of abortion, as long as we're going to have a Roe and Casey framework, it seems like it would actually only dramatically complicate litigation and not make it easier to require individual women on a case-by-case basis to challenge these laws.

 

More to the point, and I think this is absolutely an argument that will probably resonate with at least some of the justices, it will in effect decide the validity of these laws in most cases, to not allow for facial challenges and to not allow for providers to bring these suits. Now, that may be what many of the folks on this call and many of the folks who support Louisiana in this case want, but it would be a rather substantial corruption of doctrine to get there and one that could have pretty deleterious consequences outside of the abortion context. So color me skeptical that this case is going to go out on third-party standing.

 

On the merits, so part of the tricky thing about this case on the merits is that there is a threshold dispute over whether the facts even matter. So one of the things I think jumps out if you read the petitioner/cross-respondent's merits brief is that there is a claim that I think is a fairly substantial one, that the Supreme Court's decision in 2016 in Whole Woman's Health v. Hellerstedt is basically a categorical repudiation of so-called trap laws, of targeted regulation of abortion provider statutes like these, especially the very kinds of restrictions that the Louisiana law imposes.

 

So just to be clear, the Supreme Court in 2016 struck down a Texas law that had an admitting privileges requirement and a requirement that any facility performing abortions of any kind comply with the state rules for so-called ambulatory surgical centers. The Fifth Circuit certainly believed that there were factual grounds on which this case could be distinguished, but, of course, that assumes the question rather than deciding the question of whether Whole Woman's - Hellerstedt is a case about facts or a case about the categorical benefits and burdens that these kinds of trap laws impose.

 

Of course, if it's simply the latter, then I think the facts are going to be wholly irrelevant, and the Court will almost certainly reverse.

 

If it does become about the factual differences, this is where I think it's worth adding a few points to Denise's presentation. So first, the district court, which of course is the fact finder and closest to the on the ground situation, a 116-page opinion in which the district court concluded that these factual distinctions between the Louisiana law and its impact on access to abortions in Louisiana were distinct from the Texas law struck down in Whole Woman's - Hellerstedt. District court held those were insufficient.

 

And so I think it's worth also pointing out that the only judges in this entire case who have thus far found the factual distinctions at all compelling were appellate judges, where a majority of the panel -- which of course is not usually how we think about the relative roles of district court and appellate courts. But, of course, appellate courts are only supposed to reverse factual findings by district courts if they are plainly erroneous or at least clearly erroneous. Color me skeptical that that's true here.

 

Denise also mentioned that only two abortion clinics would close, perhaps, for unrelated reasons if this law goes into effect. Denise is the expert on this, I am not. But my understanding is that there are only three abortion clinics in the entire state of Louisiana. So only two is a small number in a state like Texas. It's a big number in a state like Louisiana.

 

But this is where I think the case is going to be really interesting to watch and the arguments are going to be, I think, really telling because the more the justices are focused on factual distinctions on the merits, I think the more it might look like this is going to be a merits decision, trying to figure out whether the Fifth Circuit was right in how it assessed the factual differences between these two cases.

 

But I'm not sure that's where this is going to end up, and this is where Denise mentioned, I think, the most important fact lingering over this case as we head toward oral argument, which is that the Supreme Court has already stayed the Fifth Circuit decision and kept in place the district court's injunction against Louisiana law, and that was after Justice Kavanaugh joined the Court. That was by a 5-4 vote with Chief Justice Roberts joining the more progressive justices in preventing this law from going into effect.

 

And I think the Chief's vote on the stay is telling in at least two respects. First, in his 15 years on the Supreme Court, I'm not aware of a single case where the Chief Justice voted for a stay pending disposition of the case on the merits but then reached a conclusion on the merits that was adverse to the stay. That is to say but then ultimately decided that the thing he agreed to stay should in fact go into effect.

 

So purely as a predictive matter, the stay certainly seems to suggest that the Chief has some pretty strong reservations about the court of appeal decision. But then also turning to the merits, the Chief was one of the three dissenters four years ago in Whole Woman's Health v. Hellerstedt, but I also think this is the kind of case where the Chief is worried about the perception of the Court institutionally, for better or for worse.

 

And so much like a case that had, I think, a lot less attention two years ago called Moore v. Texas, a capital case out of Texas where the Chief had initially dissented from the Supreme Court's decision, sending the case back to the lower courts. When the Chief felt that the lower courts had not adequately heeded the instructions of a majority opinion from which he dissented, the second time around, he concurred. Not because he agreed with the original decision but because he didn't think the lower court had plausibly distinguished what the Supreme Court had held.

 

I think we're looking to a large degree of a carbon copy of that. I think going into the argument, I think there's no question the Chief Justice is most likely the most important person to watch. He is probably the swing vote. But I also think that to some degree, he's shown us at least one of his cards by voting over a year ago to keep this law on hold while this litigation proceeds. That's not by any means dispositive. It's not preclusive, but I do think it's strongly indicative that when it comes to the bottom-line issue of whether the Louisiana law really can be distinguished from the Texas law that the court struck down four years ago, the Chief at least so far has not been convinced.

 

But I've been talking too much. I want to give Denise a chance to respond. I want to leave room for questions, so why don't I stop there and throw the floor back to Denise for a minute.

 

Denise Harle:  Okay. So I have two questions I'll try to pick between on a matter of procedure. I guess I'd ask when you are making the distinction about specific women challenging the laws as as-applied challenge, I guess what would prevent them, though, from bringing the sort of challenge that abortion providers have brought and saying yes, this affects me and putting before the court all sorts of evidence on statistics throughout the state just like we see in so many of these cases. I mean why couldn't it be considered as well as a facial challenge?

 

Prof. Stephen Vladeck:  The short version is nothing formally, I think, would prevent a pregnant woman from bringing a similar lawsuit. I think the concern is that the Court might be more inclined where it's an individual woman to treat that as an as-applied challenge, and certainly, I imagine the State in such a case would want to look to some degree at the burden the state law imposed on that particular woman.

 

      So for example, is it really that hard for her to travel to the clinic or clinics that remain open, right? Is this really going to pose hardship on her? Whereas, I think the challengers to these laws take the position that I think is not implausible. Indeed, it has a lot going for it that the burden has to be looked at on women as a class. And so, maybe if a pregnant woman could bring a class action, that would be perhaps an even better vehicle, but of course, the Supreme Court in recent years has become increasingly hostile to certification of those kinds of class action.

 

      So it's not, Denise, that I think there'd be a categorical procedural obstacle in such a suit, it's that I think there would be reasons why such a suit would make it at least somewhat harder for the courts to reach the full merits of laws like these. And all the more reason, to my mind, from both the State's perspective and the perspective of providers, to actually have it settled not just for the case of one particular woman but of all women, so that the providers know what their legal liabilities are and the state knows what its legal authority is.

 

Micah Wallen:  All right. We'll move to our first caller.

 

Caller 1:  Hi, this is a question for Denise. You used the analogy regarding standing to be like a woman suing Ford for a regulation that required safer vehicles, but what if the regulation was that Ford could only sell monster trucks? Because isn't that a more accurate analogy? The clinics are being forced to do things, like widen the hallways, in order to prescribe a pill. It doesn't seem obvious to me that these things really have anything [inaudible 25:27] but rather with reducing sales of the trucks or abortions. How am I wrong?

 

Denise Harle:  Well, I mean, you're wrong that it doesn't have anything to do with the hallways or chemical abortion. And I think, again, the specific facts here show the significant health and safety concerns, including one of the abortion doctors challenging the law has conceded that the admitting privileges would improve continuity of care. And another abortion doctor testified to, one who does have admitting privileges, to how helpful it was for him to be able to admit and treat a woman at a nearby hospital.

 

      So, I mean, I think the problem with the analogy there is that I'm not seeing in what way that would -- Ford could possibly have, backed up by facts and evidence in the record, that monster trucks would be the only thing that could achieve its goal. And keeping in mind here that Louisiana has the same admitting privileges requirement on other doctors at all other ambulatory surgical centers. So it really -- this law was really bringing abortion doctors in line with the requirements that other doctors performing outpatient surgical procedures have been complying with for a long time.

 

Micah Wallen:  All right. We'll move to our next caller.

 

Caller 2:  Yeah, I think you've answered my question. I guess the question was really sort of a basic one that at least where I am, getting somebody admitted into a hospital is not something that's done very quickly, that if you need medical care quickly, one goes to the emergency center or emergency room, and that's where you get your medical care immediately. And you may even be admitted through the emergency center if you need continuing care. I guess you sort of answered the question, I just -- I'm having trouble understanding why other doctors also don't have to have privileges at a specific hospital or hospitals. But I guess my point is getting somebody admitted is not so simple anymore.

 

Denise Harle:  The admitting privileges is a requirement on other doctors doing the outpatient surgical procedures at other surgical centers throughout the State, and doctors haven't had trouble complying. And on this point, I'll make a distinction between the Texas law. Texas's admitting privileges required a certain number of minimum admissions per year to maintain the privileges, which made it much more difficult for an abortion doctor to satisfy, where Louisiana's requirement seems to be a pretty basic low-level bar, essentially, that focuses more on credentialing in this sense.

 

The hospital, before it extends admitting privileges, has an interest in doing some vetting and background checks. And so the express thinking is that that would've helped to catch some of the violations and the bad track records of certain abortion providers and potentially screen them out as well. But as to the admitting privileges itself, it should be a pretty low bar that the abortion provider should be able to satisfy just as the other doctors in the state do.

 

Prof. Stephen Vladeck:  Denise, I'm curious about something that I just don't know the answer to, which is so in the Texas case in Hellerstedt, one of the points that Justice Breyer's majority opinion makes is that yes, the admitting privileges requirement under Texas law was a requirement for other doctors performing outpatient surgical procedures, but it was not a requirement under Texas law for doctors performing non-surgical services, which at least some abortions are. Is Louisiana law the same in that respect that insofar as abortion providers have to have admitting privileges, it actually crosses over from those performing outpatient surgical procedures to non-surgical abortions in a way that no other procedure in Louisiana is covered?

 

Denise Harle:  I'll just answer because I don't know if yes or no is going to -- is the right answer. In this instance, this applies to surgical abortions.

 

Prof. Stephen Vladeck:  But a facility like June Medical that wants to provide both surgical and medicinal abortions have to comply with the admitting privileges requirement even with regard to the medicinal abortions, right?  

 

Denise Harle:  The doctor. So it applies to the doctor, and so the doctor has to comply with the admitting privileges if that doctor is or intends to perform surgical abortions, not a doctor who strictly performs medication abortions, of which I don't think there are even any in the record that only do the medication abortions.

 

Prof. Stephen Vladeck:  Great. Thanks for the clarification.

 

Micah Wallen:  All right. We have another question in the queue. We'll move onto that caller.

 

Jeff Pauley (sp):  Yes, this is Jeff Pauley from Raleigh, North Carolina. The professor mentioned earlier that the district court, as the finder of fact, found that these were not substantially different from Texas, if I heard him correctly. I guess my question is do you think that the Supreme Court is losing faith in district court judges based on the recent kerfuffle, if I might use that word, about nationwide injunctions? And although Justice Robert doesn't see, want to say, the various district judges are partisan that it's becoming more apparently clear in the last few years. Do you think the Supreme Court might start ignoring the finder of fact on highly political cases like this?

 

Prof. Stephen Vladeck:  It's a great question. If Denise doesn't mind, I'll try to take it first. So I think that there's a lot going on here. First, I think the Supreme Court has already, in some cases, ignored the finder of fact in high profile, politically charged cases. This has been a phenomenon I think some folks have written about before that there are Supreme Court cases where what we would've expected as deference to fact finders just gets totally brushed aside because the justices just either don't agree with that fact finding or just don't think that that's relevant to their disposition.

 

      On the broader point about the surge in nationwide injunctions and the Court's reaction, if I can be a little bit self-indulgent, I actually wrote basically a 40-page article about this that was published last November titled, "The Solicitor General and the Shadow Docket." And it basically argues that the disconnect, I think, is a lot more plausibly traced when you actually look at all of the cases, not to the rise of nationwide injunctions because many of these cases, like the public charged case from last week, were not nationwide injunctions, not to ideological differences between district courts and the Supreme Court because these cases are all also going through courts of appeals.

 

      But rather, too, I think a more subtle but perhaps even more important shift in how the Supreme Court understands and implies the standards for injunctions when state and federal laws are enjoined, which is that the Court is just increasingly convinced that the government is entitled to the presumption of regularity where the burden for showing that the law should be enjoined tilts even more heavily toward plaintiffs at the stay stage so that the equities always tilt in favor of the government.

 

      In other words, the part of what's going on in these cases, at least beyond June Medical, is that the justices are finding that the irreparable harm governments suffer when their laws are put on hold just is far more important than the harm those laws would impose if they were allowed to go into effect.

 

      And in that respect, just to tie this back to June Medical, that's yet further reason why I think the Chief Justice's vote to stay the Fifth Circuit's decision here to leave the Louisiana law on hold is so revealing because the Chief has been the leader of this charge. Going back to an in-chambers opinion he wrote about seven years ago in a case called Maryland v. King. And so for the Chief who is inclined in almost all of these cases to give states and the federal government the benefit of the doubt even when lower courts haven't, to turn around and say, "But not here," I think is a pretty important and telling signal of what's to come.

 

      So that's sort of a bit of a long-winded answer, but I hope it gets us in the ballpark.

 

Micah Wallen:  One more question just came in.

 

Caroline Harlatas (sp):  This is Caroline Harlatas in Tallahassee, Florida. I wondered if the record included sufficient evidence of the fact that abortions are truly a significant surgical and invasive procedure that I have never understood why doctors shouldn't be required to have admitting privileges if you have to have it for, what, removing a wart or whatever. It's not a minor procedure, and does the record reflect that?

 

Denise Harle:  I think that instances that really stand out to me are a couple examples where a woman's uterus was perforated during the procedure, and then there was a lot of hemorrhaging and bleeding. And eventually, by the time that the woman got to the hospital, there was a lack of communication because she didn't want to say she'd undergone an abortion, and the abortion doctor hadn't gone with her or sent any records.

 

I think in both instances, the perforation became an infected tear, part of the fetal skull was found, and both women ended up having to have hysterectomies, meaning they lost their ability to have children going forward. So I do think the specific facts of those kind of speak for themselves in terms of worst case scenario. Even if this is a very rare complication, it something that it's permissible for the legislature of Louisiana to want to protect its citizens from that as far as it can do so through this law.

 

Prof. Stephen Vladeck:  I think it's worth saying, I don't think there's anyone in any of these cases who is arguing that there are no circumstances in which states or the federal government can't require doctors performing surgical procedures to comply with the rules governing surgical procedures. I think the larger issue is that the scope of these laws—this was certainly true in the Texas case. I think there's some dispute as to the extent to which is true in the Louisiana case—sweep so much further than the highly invasive surgical procedure form of an abortion.

 

      So in the Texas case, part of why the Supreme Court found the law so dramatically overbroad from the perspective of the benefits it was trying to provide to both pregnant women and to unborn fetuses was because the law required admitting privileges and ambulatory surgical center requirements even at facilities that performed either principally or even only medicinal abortions, where there's no surgical procedure whatsoever, where in effect, a woman takes a pill, is monitored by nurses, and is usually discharged several hours later.

 

      We should be careful not to use the most extreme examples to illustrate the broader debate because I think there's a whole spectrum here of one end, where I think no one disputes, that appropriate medical procedures are necessary for everybody's benefit, and the other end, where the state or federal legislative nod toward requirement of these procedures really serves no effect other than to make it harder for women in large parts of many states to obtain access to abortions.

 

      That may be okay with those of us who are opposed to abortions on whatever ground, but it's a practical impact that I think has been at the centerpiece of some of these cases and part of why I think the Supreme Court came out the way it did when it considered the very similar Texas law four years ago.

 

Micah Wallen:  All right. We have another question in the queue. Without further ado, we'll move to that caller.

 

Caller 5:  Yes. I have a question about class actions. Wouldn't one have a class action for women that would be for injunctive relief? Wouldn't the requirements of 23(a)(b) satisfy? I don't see why there'd be an obstacle to a class action.

 

Prof. Stephen Vladeck:  It's an interesting question. You know, it's been tried, not in Louisiana but in a couple of other states and with limited success. And I think part of the problem is that ever since the Supreme Court's, I want to say, 2011 decision, but I could be off on the year, in the Wal-Mart v. Dukes case, commonality of claims has been an ever-harder prong to satisfy in the class action analysis. And even when you have pregnant women, say, in Louisiana all challenging the same law, their claims might be different with regard to the particular facts of their pregnancy. For example, are they in their first trimester? Are they approaching viability?

 

And so I think a part of what the difficulty has been on that front has been finding women with sufficiently common claims to survive certification under 23(a), but it's out there. And, again, I don't want to suggest that the provider suits are the only mechanism. It's just that the provider suits have, for the better part of four decades, been, from the Supreme Court's own perspective, the best mechanism for assuring that all of the relevant stakeholders and all of the relevant considerations are adequately accounted for.

 

Micah Wallen:  All right, no other questions in the queue. Did either of you have any closing remarks for us? Anything else you'd like to cover?

 

Denise Harle:  I had one more question that Professor Vladeck intrigued me on. And that is sort of that question well, when could abortion providers bring a claim, then, if they are subject to civil or criminal penalties under law? And so what I was trying to think of was what right, though, would their challenge be based on? Would it be like a rational basis standard, like a right to practice medicine? I mean, they would be asserting a different right, I would think, and so it would seem to me it would be a different standard, but they would have an ability to challenge a law that subjects them to penalties based on something other than a woman's right to abortion.

 

Prof. Stephen Vladeck:  I disagree, and this is an argument that I think Senator Hawley makes in his amicus brief in June Medical, and I just think it doesn’t hold up. So if we go back to one of the canonical cases in this field, so Craig v. Boren, 1976. This is where, I think it's Oklahoma, passes a law that says if you're under the age of 21, you can consume -- but you're over the age of 18, you can consume near beer if you're a woman but not a man. And you can buy near beer if you're a woman, not a man, and the person who sues to challenge that statute was the store owner, not a 19-year-old man on the ground that it was affecting his business, right?  

 

      That is to say that the Article III injury that gets these folks in the Court in the first place doesn't have to be the same thing as the underlying constitutional violation that causes the injury. Economic injury is sufficient. To the point -- what Denise's question raises is, of course, in a world in which we did not allow providers to bring these kinds of lawsuits, what we would be looking at is a provider might instead be left to raising the unconstitutionality of a law like Louisiana's as a defense to a state enforcement action, either as a defense to a civil fine or as a defense to a criminal prosecution.

 

And I just think that there are reasons why for the better part of a century the Supreme Court has allowed the Constitution to be a sword and not just a shield. Now, we may all have reasonable disagreements about exactly what the scope of that sword is and what rights it protects, but to say that there's a right out there but we're not going to let you enforce it until you are haled into court criminally, I think, is to really demean how we tend to think about these kinds of enforcement proceedings.

 

So that's why I think the third-party standing issue here, although I understand why it's so useful to Louisiana and why it would basically allow the Court to avoid the merits, I just think ultimately, it's probably not going to be something that sells the Court, and it's my own gut. It's worth what you paid for it.

 

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.