A Temporary Win for Abortion Rights

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Late Thursday night, the Court put a Louisiana abortion statute on hold. The 5–4 order in June Medical Services v. Gee has been perceived as a victory for abortion rights—but I’m not sure it is. The stay is purely to allow the Court to decide whether to hear the case. And the Court’s four solid conservatives voted to allow the law to take effect right away, even though it runs directly contrary to the Court’s most recent abortion decision. Chief Justice John Roberts voted to stay the law; but this does not mean he will vote to strike it down.

If Thursday’s order was a win for abortion rights at all, it was a minor and probably temporary one.

June Medical Services is a challenge to Louisiana Act 620, which requires abortion providers in the state to have “admitting privileges” at a licensed hospital within 30 miles of the clinic at which they practice. That precise requirement in a Texas statute had been struck down in Whole Woman’s Health v. Hellerstedt. In that 2016 case, a district court found that the “privileges” requirement provided no genuine health benefit to pregnant women. However, combined with a strict set of physical regulations for clinics, it would in fact cause the closure of most of the state’s licensed abortion clinics; thus, it constituted an “undue burden” on a pregnant woman’s constitutional right to have an abortion.

A federal district court in Louisiana considered the Louisiana law in light of the Hellerstedt decision, and struck it down. In seven pages of Kafkaesque factual findings, the court detailed the current providers’ futile efforts to get admitting privileges—which were blocked for reasons that had little to do with competency and much to do with deep-red Louisiana’s opposition to abortions. Of the six current providers, it found, Act 620 would put four completely out of business, and restrict one to performing abortions at only one of the two locations where he currently practices. The sixth doctor, the court found, would simply stop performing abortions if that happened, out of “a well-founded concern for his personal safety.” If Act 620 took effect, the court concluded, “approximately 70 percent of the women in Louisiana seeking an abortion” would be unable to get one in the state.

But then a strange thing happened: The U.S. Court of Appeals decided that the district judge just didn’t understand the facts, and ruled that Act 620 could go into effect.

The court-of-appeals decision is one of the most remarkable federal opinions I have ever read. To understand why, let’s look at the basic rules for the federal court system. The system has three levels. District courts conduct trials, hear testimony, sift evidence, and “find” facts. Then they apply court-of-appeals and Supreme Court precedent to those facts, and render a judgment. Courts of appeals, except in very unusual circumstances, do not “find” facts. Instead, they ask whether the trial court correctly applied the law to the facts it found. To decide that, they apply Supreme Court precedent, and, if there is none, precedent from the appeals courts. After the appeals court decides, the Supreme Court can step in if it thinks the lower courts got it wrong.

To repeat: Trial courts “find” the facts; appeals courts primarily decide the law. Appeals courts cannot set aside factual findings unless the trial judge committed “clear error.” Even if an appeals panel is “convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently,’’ the Supreme Court has said, it should not second-guess the trial judge unless it has “a definite and firm conviction that a mistake has been committed.”

But the Fifth Circuit in essence decided that the trial judge had been wrong about virtually every factual question in the case. Whatever might have been the case in Texas, in Louisiana there were hitherto unsuspected benefits to the “admitting privileges” requirement. As for the doctors who hadn’t gotten admitting privileges, they were lying. They had, the appeals court decided, “sat on their hands” and probably really could get admitting privileges somewhere, if they just got off their lazy behind and gave it a real try. And even if some of the doctors were eliminated, the others could just work a few more hours a week and everything would be tickety-boo for the women seeking abortions.

As a result, the Fifth Circuit said, the case in June Medical Services is totes different from the identical case of Hellerstedt. And thus it is totes constitutional too.

It’s hard to believe that the Fifth Circuit’s opinion was even intended to pass the straight-face test. There are two reasons for that suspicion. First, the Fifth Circuit decision was written by Judge Jerry E. Smith. Smith, a Ronald Reagan appointee, during his three decades on the bench has displayed some tendencies toward assuming an authority not strictly warranted by his commission.

Smith was the author of a 1996 affirmative-action case called Hopwood v. University of Texas. In that case, he wrote for a majority that a previous Supreme Court case, Regents of the University of California v. Bakke, was no longer binding in the Fifth Circuit. The Supreme Court had not said so, but Smith thought the decision was a bad one; he didn’t think the Supreme Court liked it either and thought it was about time the high court reversed it. (The Supreme Court, in fact, later reaffirmed Bakke.) Smith’s self-confidence verged on megalomania in 2012 when he ordered the attorney general of the United States to write him a letter explaining political comments by President Barack Obama about a case that was not before Smith’s court, and to which Obama was not a party.

So we might call Smith’s judicial philosophy freewheeling—or, to be more precise, lawless. In his June Medical Services opinion, he in essence overruled the Supreme Court’s decision in Hellerstedt. That level of hubris is probably explained by the true difference between Hellerstedt and June Medical Services.

The facts on the ground in Louisiana and Texas are roughly the same, but the facts on the ground of the Supreme Court are not. That is to say: Justice Anthony Kennedy, who provided the fifth vote in Hellerstedt, is no longer on the Court. His seat is now filled by Justice Brett Kavanaugh.

The message of the Smith opinion is: We’ve got the votes now. Hellerstedt, and then Planned Parenthood v. Casey, and then Roe v. Wade, are finished. I can write any nonsense in this opinion and you can’t do anything about it.

Is he right? Kavanaugh’s dissent may be the real news here. He notes the supposed factual discrepancy and suggests that the court should just allow the law to go into effect. The lazy doctors could try again to get admitting privileges. The state has promised not to enforce Act 620 “aggressively,” he says, so no one will be hurt.

His argument, in essence, is: Trust a government regulator with your rights. What could go wrong? This is, let’s say, an uncharacteristic argument for a conservative.

After the temporary stay of Act 620, the Court has a few choices. It could issue an unsigned opinion saying that Hellerstedt—only three years old—is still the law. It could also grant full-scale review and ask the parties to argue whether it should reconsider Hellerstedt. That would suggest a cavalier view of precedent, but at least the Court would be leveling with the country.

The worst choice would be to engage with Smith’s claim that Act 620 is somehow different from the Texas law. Finely parsing nonsense leads to nonsensical law. But I suspect that Kavanaugh is not the only conservative on the Court who would like to take that route. Bogus factual distinctions offer an appealing way of getting rid of Hellerstedt—and then Planned Parenthood v. Casey, and then Roe v. Wade.

The key vote on Thursday’s order was that of Roberts. He dissented in Hellerstedt, which suggests that he believes admitting-privilege requirements are fine, regardless of their impact. Does he respect precedent enough to, in effect, rule against his beliefs? More likely, his inner struggle is only about expediency and timing. Is this a politic time for the Court to reconsider its precedents frankly? Would it be better for the Court to stand by its precedents for a decent interval before making the foreordained assault on Roe and Casey? Or should the Court take the easy route suggested by Kavanaugh, and undo abortion rights while pretending it’s doing nothing of the sort?

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.
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