The 5th Circuit Court of Appeals in New Orleans just left alone a Louisiana law that is substantially similar to one the Supreme Court already ruled invalid out of Texas. The difference, the court said: the effect of the law in Louisiana is different. The LA law doesn’t provide a “substantial obstacle” in the way of a woman to get an abortion, unlike the Texas law.

Both laws require abortion providers to have hospital access privileges within 30 miles of their abortion clinics. In passing the law, the states found it would provide medical benefits to the women receiving abortions – continuity of care and ensuring appropriate credentialing of doctors.

However, when the Supreme Court got ahold of the Texas law, it called the medical benefit BS (Whole Women’s Health v. Hellerstedt). In contrasting the Louisiana law, the 5th Circuit court found a “minimal” medical benefit from the law (in doctor credentialing) and went about distinguishing the differences in Louisiana and Texas in order to conclude that the Louisiana law’s burden on women’s access to abortions is not substantial, like the law in Texas.

The Supreme Court’s analysis of the Texas law

In Whole Women’s Health, the Supreme Court (in a 5-3 decision) declared the Texas law provided zero medical benefit. The Court listed several sets of evidence that abortions are performed without complications in a huge percentage of cases and rarely do they ever require a hospital transfer. For example, in the 17,000 cases of abortions that one Texas clinic had performed in the preceding 10 years, there were zero cases of a hospital transfer. Furthermore, an abortion provider could have a working arrangement with a doctor who has hospital privileges, which would provide adequate coverage in the few cases which are transferred. The Court also determined the admitting privileges requirement provided no doctor-credentialing function.

The legal analysis requires two sides of a balancing test, and that was just one side. A court must compare the state’s interest in the law (the medical benefit to women) with the burden it places on women’s access to abortions. The burden on abortion cannot be a “substantial obstacle” to a woman’s right to gain an abortion (Planned Parenthood v. Casey, 1992). Even though the Court ruled the state’s interest was nonexistent, the Court went ahead to analyze the burden on abortion access caused by the law.

The Court found that in Texas, the law caused serious issues for women wanting to get abortions. Texas hospitals have certain requirements to get hospital access privileges that make it hard for abortion providers to qualify. As a result, a lot of abortion providers were unable to get privileges and many abortion clinics closed. The law, then, made it extremely difficult for a large number women to get abortions. They would have to drive much farther, and even then, the clinics which could remain operating wouldn’t be able to handle the influx of cases.

Balancing the burdensome effect of the law and the nonexistent state interest, the Supreme Court ruled it violated the “substantial obstacle” rule.

How the 5th Circuit distinguished the Louisiana law

Recall, there are two sides to the balancing test. The Supreme Court had given a big fat zero to the state interest side in the Texas case. With the same result in the Louisiana case for state interest, the 5th Circuit would have had a hard time justifying much burden at all on abortion access. But the 5th Circuit found a minimal state interest in Louisiana.

Recall Roe v. Wade

According to the 5th Circuit, credentialing of abortion providers in Louisiana was not up to par before the law. The new law’s requirement of hospital privileges would subject abortion providers to more extensive background checks. So there, the Louisiana law does provide some medical benefit. The Court admitted it was a minimal one.

But then for the other side of the balancing test. The 5th Circuit plainly didn’t find as large of a burden on women’s access to abortion. In comparing the relevant factors the Supreme Court found problematic in Texas, they were all less of a burden in Louisiana. The court said it’s not actually that hard for abortion providers to get hospital privileges in Louisiana. True, some of the providers have failed so far, but they haven’t tried hard enough. There’s no proof that the new law is what’s causing the issue. There’s also no proof, the 5th Circuit said, that Louisiana abortion clinics are closing as a result of the law. Yes, some have closed, but we don’t have proof that it’s because of the law. Thus, women won’t be driving much farther to get abortions in Louisiana, like they would have in Texas. All in all, the law might complicate the process a bit, but given the small medical benefit, the state is justified in imposing the hospital privileges requirement.

Arguments on appeal

It would not be surprising if the plaintiffs decide to appeal this case to the Supreme Court, considering that the Court already has ruled against a law with the same language. There are a few potential arguments for appeal.

For one, was the 5th Circuit supposed to get into the details of the facts (comparing the effect of the law in LA vs. Texas), or was that for the district court to do? Generally, the trial court gets the best look at the facts. That’s the court which extracts all the evidence and hears it in the first instance (instead of through a paper record). That would be the district court here. In this case, the district court didn’t dig too far because it followed the ruling in Whole Women’s Health to declare that the law – with the same exact policy – was facially invalid. In other words, the law was so exactly the same in appearance as the Texas law that it couldn’t pass muster, even without digging into the factual differences.

If the 5th Circuit was right that the district court should have reviewed the facts of the case (instead of ruling on facial grounds), then was the 5th Circuit supposed to send the case back to the district court? Or was the 5th Circuit correct in taking the factual analysis into its own hands?

Then, if the 5th Circuit was supposed to be taking the factual analysis into its own hands, did it do so correctly? The 5th Circuit judges who ruled for Louisiana in the case were both nominated by Republicans and it’s not hard to think they are probably anti-abortion. Other judges might have reviewed the burden on abortion access or the medical benefit of the law differently. Will the Supreme Court be interested in determining the appropriateness of the 5th Circuit’s factual analysis?

The Supreme Court may say:

1) the minimal medical benefit the 5th Circuit found is not a benefit at all. If LA wanted to provide for stricter background checks on abortion providers, it could do just that – without the hospital privileges part. That alone could make the rest of the 5th Circuit’s balancing analysis fall apart.

Or 2) the 5th Circuit’s analysis of the burden on abortion was off. The 5th Circuit chose to ignore the obstacles on abortion access that it should have found.

Alternatively, the Supreme Court could say that even with the factual analysis as the 5th Circuit declared, the burden on abortion is still too high compared to the minimal medical benefit the law could provide.

The future Supreme Court

When Whole Women’s Health was decided, one of the 5-member-majority was Anthony Kennedy, the swing vote from the conservative side who is now retired. Most of us are well aware that Kennedy’s replacement is not certain to be confirmed, but we can probably assume that anyone Trump nominates will be of the conservative persuasion. Will that change the result? Will that factor in to whether the plaintiffs will appeal?