June Medical Services, LLC, et al. v. Stephen Russo, Interim Secretary, Louisiana Department of Health and Hospitals

In 2014, the legislature in Louisiana passed Act 620 which requires any doctor who performs abortions in Louisiana to have admitting privileges at a hospital no more than 30 miles from where the abortion is performed. Admitting privileges is defined as being “a member in good standing” of the hospital’s “medical staff…with the ability to admit a patient and to provide diagnostic and surgical services to such a patient.”

The plaintiffs are 5 abortion clinics and 4 abortion providers challenging the Act as being unconstitutional because the Act imposes an undue burden on their patients’ right to obtain an abortion. The plaintiffs initially brought an action seeking a permanent injunction to prevent the law from taking effect which was granted by a District Court based on both factual and legal findings. The District Court found that abortion procedures requiring hospitalizations were exceedingly rare in the state of Louisiana (less than one per several thousand abortions). Further, there was no history of abortion complications that could have been avoided had the doctor performing the abortion had admitting privileges. Finally, the doctors involved in the litigation had limited success in receiving admitting privileges for reasons outside their competence.  The district court also heavily relied on a previous SCOTUS ruling in which a near-identical act was found to be unconstitutional in Texas for creating an undue burden on women in Texas asserting their right to have an abortion.

The defendants appealed to the Fifth Circuit which reversed the District Court’s judgement on the basis that the Louisiana Act was markedly different than the Texas one in that unlike in Texas, there was evidence that the Louisiana Act had benefits in promoting the wellbeing of women in Louisiana seeking abortions. The benefits of the Act were stated as helping to “verify an applicant’s surgical ability, training, education, experience, practical record and criminal history.” Also, the Fifth Circuit disagreed with the factual findings of the District Court which found the act would result in the closure of abortion clinics in the state of Louisiana because of the inability for some physicians providing abortions to obtain admitting privileges at nearby hospitals. Nonetheless, the Fifth Circuit did not disagree with the legal findings of the District Court. 

In a 5-4 majority, the Supreme Court reversed the decision made in the Fifth Circuit and upheld the original District Court decision in finding the Act unconstitutional by placing an undue burden on a women’s right to obtain an abortion in the state of Louisiana. Since there was no disagreement about the legal findings of the case, the Supreme Court’s judgment heavily relied on reviewing the factual evidence. The Supreme Court disagreed with the factual findings of the Fifth Circuit in that the Act would not result in the closure of abortion clinics in Louisiana and thereby not restrict access to abortion care creating an undue burden. The Supreme Court upheld the original factual findings of the District Court where the court oversaw 6 doctors practicing abortion care in Louisiana attempt to gain admitting privileges at hospitals but were continually denied for reasons unrelated to their competence.

The Supreme Court also found that even if some of the doctors were successful in obtaining admitting privileges, they almost certainly would not be able to maintain them because many hospitals require that those with admitting privileges must maintain a practice that involves regular in-hospital care. Given that complications in abortions procedures requiring hospitalization are exceedingly rare, doctors initially granted admitting privileges would eventually have them revoked because of the lack of in-hospital care they would be providing.

In addition, the Supreme Court found that the opposition to abortion also played a significant role in preventing some abortion doctors from gaining admitting privileges. While some hospitals were unwilling to give abortion doctors admitting privileges as a matter of discretion, others required the doctor to have a “covering physician” willing to serve as a backup in case they were unable. This requirement made it difficult for some doctors to gain admitting privileges because they were unable to find doctors willing to be publicly associated with an abortion provider.

Lastly, the Supreme Court also found that the Act would not provide any benefits to women in Louisiana seeking abortions. The defendants presented no evidence that patients with abortion doctors who had admitting privileges at nearby hospitals would have better outcomes than those without.

After reaffirming the factual findings of the District Courts’ judgment, the Supreme Court upheld their previous ruling in Whole Woman’s Health v Hellerstedt. In Whole Woman’s Health, a similar Texas law was found to be unconstitutional on the basis of creating an undue burden on a woman’s right to access abortion care. Now, since the factual findings were aligned with those of the law in Whole Woman’s Health, in that both would result in the closure of abortion clinics without any evidence of benefiting women, the legal reasoning amounted to a basic application of stare decisis.

The dissent found the Act constitutional on the grounds that abortion clinics had no standing to challenge the Acts constitutionality. Even if this weren’t the case, the dissent would have upheld the Act on the grounds that there is no constitutional constraint on a State’s ability to prohibit abortion.

"a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends." (At page 16)

"[e]ven if Act 620 could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden." (At page 19)

"Doe 5 is a board-certified OB/GYN who had been practicing for more than nine years at the time of trial. Of the thousands of abortions he performed in the three years prior to the District Court’s decision, not one required a direct transfer to a hospital. App. 1134. Yet he was unable to secure privileges at three Baton Rouge hospitals because he could not find a covering physician willing to be publicly associated with an abortion provider." (At page 23)

"As we stated in Casey, a State’s abortion related law is unconstitutional on its face if “it will operate as a substantial obstacle to a woman’s choice to undergo an abortion” in “a large fraction of the cases in which [it] is relevant." (At page 39)