Abortion Access, the Supreme Court, and a Troubling Case of Déjà Vu

Cross-posted on The American Prospect

If you are unfamiliar with Planned Parenthood of Arkansas and Eastern Oklahoma v. Jegley, it is totally understandable. The Planned Parenthood Federation of America and co-counsel Jeffrey Fisher of Stanford Law School filed a petition for Supreme Court review on the last business day before the holidays, and, so far, the move has received little attention. Yet, the pendingcertiorari request raises compelling issues: a major threat to abortion access in Arkansas and a lower federal court’s egregious departure from binding Supreme Court precedent in addressing the case.

Specifically, Planned Parenthood is asking the justices to review and correct anabortion decision last July by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit (covering Arkansas, Missouri, Nebraska, North Dakota, South Dakota, Iowa, and Minnesota). The panel’s ruling overturned a properly grantedpreliminary injunction blocking an Arkansas requirement that would, if allowed to be implemented, effectively ban medication abortion in the state, achieving a dubious national first. That would leave the entire state of Arkansas with just a single abortion provider—one that performs surgical abortions only.

But that large and detrimental potential impact is not the only reason the Eighth Circuit ruling stands out, and not in a good way. The law at issue, Arkansas Act 577, requires that doctors who provide early abortions using a combination of two pills, mifepristone and misoprostol, enter into a medically unnecessary contract with a second doctor who holds hospital admitting privileges and agrees to handle complications.

If that requirement sound familiar, it is because it is remarkably similar to the admitting privileges requirement that the Supreme Court struck down, 5 to 3, in its landmark June 2016 abortion rights ruling, Whole Women’s Health v. Hellerstedt.

Less than two years ago, a high court majority (consisting of Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan) struck down a nearly identical Texas law, likewise enacted under a flimsy pretext of protecting women’s health. The Lone Star State’s restriction mandated that all physicians performing abortions, including medication abortions, obtain admitting privileges for themselves at a nearby hospital, which, as the Whole Women’s Health decision noted, are typically unattainable for political and bureaucratic reasons having nothing to do with a doctor’s competence—and Arkansas doctors would face the same problems as their Texas counterparts.

In a decision written by Justice Stephen Breyer that carefully parsed the evidence, the Supreme Court held the restriction placed an unconstitutional “undue burden” and blocked it, concluding it created a substantial obstacle to women’s access to abortion that outweighed the “virtually absent” benefits it provided.

Unfortunately, this precedent did not stop the Eighth Circuit panel from vacating the preliminary injunction that a district court judge, Kristine Baker, had imposed. The panel acted based on its own made-up test for evaluating the constitutionality of restrictions that impede women’s access to abortion rather than following the balancing test for determining an “undue burden” that the Supreme Court prescribed in Whole Women’s Health (which in turn built on its 1992 decision inPlanned Parenthood of Southeastern Pennsylvania v. Casey), namely whether the benefits, if any, of an abortion restriction outweigh the burdens imposed on a fundamental constitutional right.  

Instead, the Eighth Circuit panel lunged in a sharply different direction. Its 12-page decision did not contest the district judge’s skepticism that the state’s so-called “contracted physician” requirement confers any real benefit. Nor did the panel contest the law’s stark impact in eliminating medication abortion entirely, requiring all women seeking to terminate a pregnancy (including women for whom medication abortion is safer) to undergo a surgical procedure, and making many drive unreasonably long distances to have it—not once but twice, thanks to the overlay of the state’s separate biased counselling and waiting requirements.

Nevertheless, the panel held that the district court erred in declaring the likelihood of an undue burden because it failed to “make factual findings estimating the number of women burdened by the statute,” meaning, the panel said, the number who “would forgo the procedure or postpone it.” The panel decision mandated further “fact finding.”

Therein lies the basic problem. Neither Whole Women’s Health nor the Caseydecision require the type of analysis the Eighth Circuit now demands when invalidating restrictions on women’s access to safe and legal abortion. Indeed, the federal court ruling from Texas overturned in Whole Women’s Health took that approach and the Supreme Court rejected it.

As Planned Parenthood argues, the circuit panel “improperly conflated the substantive test for whether an abortion restriction is unconstitutional, the ‘undue burden’ test,’” with another test, the so-called “large fraction” test. The counting exercise is sometimes used to decide whether all or part of a law should be struck after a finding of unconstitutionality.