June Med. Servs., L.L.C. v. Gee, 17-30397

• Decision Date: 18 January 2019
• Docket Number: No. 17-30397,17-30397
• Parties: JUNE MEDICAL SERVICES, L.L.C., on Behalf of Its Patients, Physicians, and Staff, Doing Business as Hope Medical Group for Women; John Doe 1; John Doe 2, Plaintiffs–Appellees, v. Doctor Rebekah GEE, in Her Capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

913 F.3d 573 (Mem)

JUNE MEDICAL SERVICES, L.L.C., on Behalf of Its Patients, Physicians, and Staff, Doing Business as Hope Medical Group for Women; John Doe 1; John Doe 2, Plaintiffs–Appellees,

v.Doctor Rebekah GEE, in Her Capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant.

No. 17-30397

United States Court of Appeals, Fifth Circuit.

FILED January 18, 2019

Travis Tu, Senior Counsel, Center for Reproductive Rights, U.S. Litigation, New York, NY, Dimitra Doufekias, Esq., Morrison & Foerster, L.L.P., Washington, DC, Charles M. Samuel, III, Rittenberg, Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiff–Appellees.

Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, Leah Draayer McDowell, Stephen S. Schwartz, Schaerr Jaffe, L.L.P., Washington, DC, for Defendant–Appellant.

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( FED. R. APP. P. 35 and 5TH CIR. R.35 ), the petition for rehearing en banc is DENIED.^* In the poll, 6 judges voted in favor of rehearing (Chief Judge Stewart and Judges Dennis, Southwick, Graves, Higginson, and Costa), and 9 judges voted against rehearing (Judges Jones, Smith, Owen, Elrod, Haynes, Willett, Ho, Engelhardt, and Oldham).

JAMES L. DENNIS, Circuit Judge, joined by Judges Higginbotham, Graves, and Higginson, dissenting:¹

I respectfully but strenuously dissent from the court’s refusal to rehear en banc the panel’s two-judge majority opinion upholding as constitutional the Louisiana Unsafe Abortion Protection Act ("Act 620"), which requires an abortion provider to have admitting privileges at a hospital within thirty miles of the site of an abortion. The panel majority opinion is in clear conflict with the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt , ––– U.S. ––––, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016) (" WWH "), holding unconstitutional an almost identical Texas admitting privileges requirement that served as a model for Act 620. The panel majority’s attempt to distinguish WWH is meritless because it is based on an erroneous and distorted version of the undue burden test required by WWH and Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The panel majority also improperly reverses the district court’s well-supported factual findings regarding the devastating effects on women’s rights to abortion that will result from Louisiana’s admitting-privileges requirement, instead retrying those facts de novo at the appellate level. The panel majority refuses to acknowledge, much less discuss, these mistakes, even though the panel dissenter, Judge Higginbotham, cogently pointed them out. See June Medical , 905 F.3d 787, 816 (5th Cir. 2018) (Higginbotham, J., dissenting). A majority of the en banc court repeats this mistake, apparently content to rely on strength in numbers rather than sound legal principles in order to reach their desired result in this specific case. The important constitutional issues involved in this case deserve consideration by the full court more so than most others for which the court has granted en banc rehearing. It is disconcerting and telling that a panel and now the active circuit judges by slim majorities have refused to even acknowledge, much less openly discuss, the implications this case will have on our important doctrines of stare decisis and clear error review of trial court factual findings.

I. BACKGROUND

A. Act 620

Act 620 was signed into law in Louisiana in June 2014. It requires "that every physician who performs or induces an abortion shall ‘have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced.’ " "[A]ctive admitting privileges" means "the physician is a member in good standing of the medical staff of a hospital that is currently licensed by the department, with the ability to admit a patient and to provide diagnostic and surgical services to such patient."

Act 620 reflects its legislative environment and Louisiana’s longstanding opposition to abortions. Louisiana has legislated multiple restrictions on access to abortions, such as an ultrasound requirement, a mandatory 24-hour waiting period, and a trigger ban that would reinstate Louisiana’s total ban on abortions in the event Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) is abrogated. Advocacy groups and the bill’s primary sponsor, Representative Katrina Jackson, expressed an intent to restrict abortion rather than further women’s health and safety through the passage of Act 620. For example, Representative Jackson stated that the Act would "build on our past work to protect life in our state" and would protect "unborn children." An anti-abortion advocacy group sent Representative Jackson an email praising the bill because of its similarity to the Texas law that would ultimately be at issue in WWH , noting that Texas’s law had "tremendous success in closing abortion clinics and restricting abortion access in Texas."²

B. WWH

While this lawsuit challenging Act 620 was pending in the district court, the Supreme Court’s decision in WWH invalidated the nearly identical Texas admitting privileges requirement. In so doing, the Supreme Court set out several basic legal principles that the district court applied in the instant case. First, while recognizing that states have a legitimate interest in ensuring that abortions are conducted safely, the Court reiterated its prior holding in Casey that a statute that "has the effect of placing a substantial obstacle in the path of a woman’s choice" is unconstitutional even though it furthers a valid state interest. WWH , 136 S.Ct. at 2309 (quoting Casey , 505 U.S. at 877, 112 S.Ct. 2791 ) (quotation marks omitted). Explicitly referring to Casey ’s undue burden test as a balancing test, the Court emphasized that "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Id.

The Court in WWH invalidated this circuit’s prior formulation of the undue burden test because it failed to "consider the burdens a law imposes on abortion access together with the benefits those laws confer." Id . Our prior, abrogated test isolated the benefits and burdens from each other analytically, rather than considering the benefits and burdens together, and upheld a state abortion restriction as " ‘constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.’ "³ Id. (quoting Whole Woman’s Health v. Cole , 790 F.3d 563, 572 (5th Cir. 2015) ). The first prong of this test, according to the Court in WWH , was directly contrary to Casey , as it "may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden." Id. Instead, as the Court explained, the burdens and benefits of the law must be weighed against each other.⁴ Id.

Applying these principles, the Supreme Court in WWH reversed the Fifth Circuit’s holding that Texas’s admitting privileges requirement was constitutional, holding instead that "there is adequate legal and factual support for the District Court’s conclusion" that "the legislative change imposed an ‘undue burden’ on a woman’s right to have an abortion." Id. at 2310–11. The Court affirmed the district court’s finding that Texas’s admitting privileges requirement "brought about no ... health-related benefit," and the requirement "does not serve any relevant credentialing function." Id. at 2311, 2313. "At the same time," it held, "the admitting-privileges requirement places a ‘substantial obstacle in the path of a woman’s choice.’ " Id. at 2312 (quoting Casey , 505 U.S. at 877, 112 S.Ct. 2791 ). Specifically, the Court determined that "the record contains sufficient evidence" to support the district court’s finding that half of Texas’s clinics closed because of Texas’s H.B. 2, meaning "fewer doctors, longer waiting times, and increased crowding" for women seeking abortions in Texas. Id. at 2313.

C. The District Court’s Decision in the Instant Case

Faced with a challenge to Act 620 by several abortion clinics and doctors, the district court properly declared Act 620 facially invalid and permanently enjoined its enforcement. Employing the principles set forth in WWH , the district court made detailed findings of fact, some necessarily based on credibility determinations, and reached the following conclusions: (1) Act 620 does nothing to protect women’s health; (2) it imposes serious burdens on a woman’s choice; and (3) those burdens vastly outweigh the nonexistent benefits. Based on ample record evidence, the district court determined that, because abortions are extremely safe, low-risk procedures and admitting privileges are not necessary to address any unlikely complications that may arise, Act 620 "provides no benefits to women and is an inapt remedy for a problem that does not exist." The district court then determined that "[a]dmitting privileges also do not serve ‘any relevant credentialing function,’ " and "[a]s the record in this case demonstrates, physicians are sometimes denied privileges, explicitly or de facto, for reasons unrelated to [medical] competency." This finding was premised on extensive evidence about the multitude...