June Med. Servs. L.L.C. v. Gee

• Citation: 905 F.3d 787
• Decision Date: 26 September 2018
• 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 official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

905 F.3d 787

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 official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant.

No. 17-30397

United States Court of Appeals, Fifth Circuit.

FILED September 26, 2018

Janet Crepps, 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 Plaintiffs-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 Duncan, L.L.P., Washington, DC, for Defendant-Appellant.

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Louisiana enacted the Unsafe Abortion Protection Act ("Act 620" or "the Act"), requiring abortion providers to have admitting privileges at a hospital located within thirty miles of the clinic where they perform abortions.¹ On remand for consideration in light of Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016) (" WWH "), the district court invalidated the Act as facially unconstitutional. The court overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH . Here, unlike in Texas, the Act does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority. Careful review of the record reveals stark differences between the record before us and that which the Court considered in WWH .

Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually. Few Louisiana hospitals make that demand. Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act. In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana. Unlike the record in Louisiana, the record in Texas reflected no benefits from the legislation. Finally, because of the closures, the remaining Texas clinics would have been overwhelmed, burdening every woman seeking an abortion. In Louisiana, however, the cessation of one doctor's practice will affect, at most, only 30% of women, and even then not substantially.

That is only a summary. As we explain in detail, other facts underscore how dramatically less the impact is in Louisiana than in Texas. Because the Louisiana Act passes muster even under the stringent requirements of WWH and the other Supreme Court decisions by which we are strictly bound, we reverse and render a judgment of dismissal.

I.

Act 620 requires "a physician performing or inducing an abortion" to "[h]ave 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 and that provides obstetrical or gynecological health care services." LA. STAT. ANN. § 40:1061.10(A)(2)(a). " ‘[A]ctive admitting privileges’ means that 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...." Id . Each violation can result in a fine up to $4,000. Id . § 40:1061.10(A)(2)(c).²

Act 620 is premised on the state's interest in protecting maternal health. Introducing the Act, Representative Katrina Jackson explained, "[I]f you are going to perform abortions in the State of Louisiana, you're going to do so in a safe environment and in a safe manner that offers women the optimal protection and care of their bodies." During consideration of the Act, the Louisiana Senate Committee on Health and Welfare heard testimony from women who had experienced complications during abortions and had been treated harshly by the provider. For example, Cindy Collins with Louisiana Abortion Recovery testified that when she underwent an abortion and began to hemorrhage, "the abortion doctor could see that something had gone wrong" but, instead of assisting her, "told [her] to get up and get out." She eventually required an emergency dilation and curettage

("D&C"). Testimony also established numerous health and safety violations by Louisiana abortion clinics.

In addition to the concern for maternal health expressed at the hearing, Louisiana has an underlying interest in protecting unborn life. The state has codified its intent to "regulate abortion to the extent permitted." LA. STAT. ANN. § 40:1061.8. Its longstanding policy is that "the unborn child is a human being from the time of conception and is, therefore, a legal person ... entitled to the right to life." Id . And, Louisiana enacted a trigger law such that "if those decisions of the United States Supreme Court [legalizing abortion] are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions shall be enforced." Id .

A.

Act 620 was set to become effective September 14, 2014, but on August 22, 2014, Bossier Medical Suite ("Bossier"), Causeway Clinic ("Causeway"), Hope Medical Group for Women ("Hope"),³ and two abortion doctors—Doe 1 and Doe 2⁴ —(collectively "June Medical") sued to enjoin the Act,⁵ mounting a facial challenge, claiming that the Act placed an undue burden on women's access to abortions. The district court entered a temporary restraining order allowing the doctors to seek privileges during the preliminary-injunction proceedings.⁶ After a bench trial, the court granted a preliminary injunction on January 26, 2016,⁷ and denied a stay pending appeal.⁸

Louisiana requested and received from this court an emergency stay⁹ that the Supreme Court vacated on March 4, 2016.¹⁰ After the Supreme Court decided WWH , we remanded "so that the district court can engage in additional fact finding required by [ WWH ]."¹¹ The district court entered final judgment April 26, 2017, permanently enjoining the Act. The court found "minimal" health benefits but "substantial burdens" and ruled the Act unconstitutional on its face under Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), and WWH .¹² Louisiana appeals.

B.

At the time of enactment, only five abortion clinics operated in Louisiana, and only six doctors performed elective abortions, of whom only one had qualifying admitting privileges. Since the enactment, two clinics have closed for reasons unrelated to the Act, and at least one doctor has obtained qualifying privileges. The analysis is fact-bound, as required by WWH , 136 S.Ct. at 2310, so we begin with a detailed overview of each clinic and the abortion doctors it employs.

1. The Causeway Clinic

Causeway opened in 1999 and was located in Metairie, a suburb of New Orleans. It closed February 10, 2016, for reasons not disclosed in this record.¹³ It had provided only surgical abortions during the first and second trimesters. Between 2009 and mid-2014, about 10,836 abortions were performed there. Causeway employed two abortion doctors, Doe 2 and Doe 4, neither of whom held admitting privileges at the time of Act 620's enactment. Within 30 miles of Causeway's former location, there are 10 qualifying hospitals.

a. Doe 2

Doe 2 is a board-certified OB/GYN who has been performing abortions since 1980.¹⁴ He is the only doctor in Louisiana willing to provide abortions after 18 weeks up to the legal limit of 21 weeks, 6 days.¹⁵ At Causeway, Doe 2 performed only surgical abortions between 6 weeks and 21 weeks, 6 days. He worked 2 weekends a month and performed 25% of the clinic's abortions. In 2014, he estimated he performed about 450 abortions at Causeway, the majority being first-trimester terminations.

From 2009 through mid-2014, Doe 2 had only two patients who required hospitalization.¹⁶ In one instance, during a second-trimester procedure, the woman experienced heavy vaginal and intra-abdominal bleeding from a rupture of her incision from a prior C-Section. Doe 2 called 9-1-1 and sent her charts and a note explaining the situation to the emergency room doctor. Doe 2 also called the doctor before the woman's arrival to explain the situation and visited her in the hospital after the surgery.

The second instance was also a second-trimester termination. The woman experienced some bleeding from uterine atony

, and though Doe 2 believed it was non-critical bleeding, he called 9-1-1 to be safe. Though he did not have admitting privileges before the Act's effective date, Doe 2 has since secured limited, non-qualifying¹⁷ privileges at Tulane in New Orleans.¹⁸

b. Doe 4

Doe 4 is 82 years old and a board-certified OB/GYN with over 51 years' experience.¹⁹ He once provided abortions at the Acadian clinic but stopped in 2003 when that clinic closed. Though he retired from practice in 2012, Causeway requested in 2013 that he fill in for a doctor who had fallen ill. He agreed and provided abortions (for the first time in ten years) at Causeway until its closure. Other than ensuring that Doe 4 remained board-certified, had a DEA license, and "was in good standing with the medicals," Doe 4 knows of no other review undertaken, similar to hospitals' credentialing process, that ensures a doctor has the requisite skills and capacity to perform relevant procedures.

Doe 4 worked Thursdays and every other weekend and performed 75% of the abortions that were done at the Causeway Clinic; all...