The History of June Medical Services v. Russo: Admitting Privileges and Abortion Clinics

/ Commentary

By Daniel Gump

In June of 2014, Louisiana Governor Bobby Jindal signed into law Act No. 620 (also known as the “Unsafe Abortion Protection Act”) [1], which was set to amend several sections of the Revised Statutes of Louisiana [2] in relation to abortion procedures. Effective September 1, 2014, this five-page legislation aimed to provide additional regulations and requirements for physicians, expand informed consent regarding chemical abortions, and to provide penalties for violations.

Soon after passage of the Act, June Medical Services LLC, the parent company of Hope and Bossier abortion clinics, sued to block one specific aspect of it from going into effect. This challenge came to Section 1, which amended R.S. 40:1299.35.2 [3] to require any physicians 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.”
Louisiana House Bill 388 (Unsafe Abortion Protection Act), signed into law as Act No. 620


Upon the initial challenge, the district court invalidated the Act, citing precedent set by Whole Woman’s Health v. Hellerstedt [4] for placing a substantial burden on a large fraction of women.” [5] The Texas admitting privilege legislation [6] challenged in that case was estimated to have led to closure of 32 of the 40 abortion clinics, due to the state’s strict requirements to retain admitting privileges at nearby hospitals.

The US Court of Appeals for the Fifth District reversed the lower court’s opinion in a 2-1 decision and upheld Louisiana’s act, declaring the district court

“overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH.” [7]

The Court saw no such similarities with the Texas legislation, since the Act would lead to just one clinic closing, and there would be no increased driving distance for potential patients. Additionally, the remaining clinics would be able to handle up to a 30 percent increase in patients, meaning the single clinic’s closure would not add a burden to prospective patients.

From the US Court of Appeals for the Fifth District

In its 2018 decision, the Court noted several key points, using anonymized names for physicians at the facilities:

  • The Act requires abortion clinics to staff an OB/GYN in good-standing at a hospital within 30 miles.
  • The Louisiana legislature interviewed Cindy Collins of Louisiana Abortion Recovery, who experienced hemorrhaging after an abortion but was told to “get up and get out.” She had to check herself into a hospital for treatment.
  • Since passage of the Act, two of the five clinics have closed for unrelated reasons, and one physician was granted admitting privilege to a nearby hospital (bringing the count to two).
  • There have been instances of delays in securing admitting privileges, due to hospital bureaucracies or inactions by the physicians — nothing related to the Act.
  • Doe 1 is not an OB/GYN but is board certified in Family Medicine and Addiction Medicine.
  • Doe 2 is an OB/GYN who testified that since 1980, 10-20 women have required hospitalization after he performed surgical abortions on them. Doe 2 is also the only OB/GYN in Louisiana willing to perform surgical abortions past 18 weeks.
  • Doe 3 is an OB/GYN at Hope and has trained three other physicians to perform abortions: a radiologist, an ophthalmologist, and Doe 1. He never performed background checks or inquired on previous training before hiring them.
  • Doe 4 is 82 years old and has been an OB/GYN for over 51 years. He performed abortions until retirement and began performing them again in 2013. He has had one patient since resuming work experience heavy bleeding caused by atonic uterus and become unresponsive, requiring an ambulance to take her to the emergency room. He does not see the OB/GYN admitting privilege requirement to be overburdensome.
  • Hope has had four known cases of complications. Doe 3 was able to admit and treat them all at hospitals where he had admitting privileges.
  • Women’s Health Clinic employs two physicians, one of whom obtained admitting privileges to a local hospital after passage of the Act. They have two documented cases of complications requiring hospital admission.
  • The district court blocked the Act when just one physician had admitting privileges, and two more clinics were open.
  • Texas hospitals require a minimum number of patients per year for admitting privileges. This is not a requirement in Louisiana.
  • The Court determined hospitals perform more rigorous background checks on physicians than abortion clinics do, including criminal records and competency checks.
  • The Act raises the standards for abortion clinics to be the same as preexisting requirements for ambulatory surgical centers (e.g. GI endoscopies, spinal cord injections, and orthopedic procedures, etc.) which also fall under Title 48 Administrative Code [8].
  • Dental procedures and miscarriage treatment fall under Title 46 Administrative Code [9] and do not require admitting privileges.

From these points, the Court determined the Act does not place an undue burden upon prospective clients of the abortion clinics, so it does not fail the standard set by Planned Parenthood v. Casey [10] and cited in Whole Woman’s Health v. Hellerstedt [11]. It does, however, place a burden upon the physicians — something beyond the scope of either case — by increasing their workloads and requiring they use the same health and safety standards of other ambulatory surgical centers in the state.

On March 4, 2020, the US Supreme Court heard oral arguments [12] as Case 18-1323.  They also heard arguments for the cross-petition Case 18-1460 in which the State of Louisiana argued against the third-party standing of abortion clinics representing potential clients.

Julie Rikelman, counsel for June Medical Services, briefly gave an opening statement. In it, she repeatedly linked the case to Whole Woman’s Health with hypothetical scenarios. She cited details on the status of the physicians securing admitting privileges, but they were current as of the district court ruling four years ago and outdated by the time the Fifth Circuit heard the case. She concluded with the argument that “[t]he medical consensus against these laws is clear.”

Elizabeth Murrill, counsel for Louisiana, argued the burden-of-proof falls upon June Medical to invalidate the Act, due to

“abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive women, testimony from doctors who took care of abortion providers’ abandoned patients.”  

She notes, “[the] record in this case demonstrates that there is no credentialing that is performed by these facilities.” She also discussed with Justice Ginsburg that clinics performing D&C after miscarriage already fall under the same state admitting privilege requirements which abortion clinics now do under the Act, creating a consistency which did not previously exist in the Louisiana Department of Health. The Act would prevent situations such as when Doe 3 hired a radiologist and an ophthalmologist to perform surgical abortions.  

When pressed by Justices Kagan and Ginsburg on complication rates, Murrill stated the clinics do not track the number of complications, but the most common form of complications from medical abortions require surgical abortion follow-ups, meaning any physician dispensing medication for first-trimester abortions should be qualified to perform surgical abortions, as well.  This diverted the discussion to Doe 6, a former OB/GYN who has become a full-time medical abortionist. Doe 6 unsuccessfully applied for admitting privileges at only one of nine hospitals in New Orleans, believing the chance of acceptance was low.

Jeffrey Wall [13], amicus curiae in support of Russo and Principal Deputy Solicitor General for The Department of Justice, argued in favor of admitting privilege requirements in general, stating to Justice Ginsburg that such requirements in medical fields very-commonly include distance limitations to hospitals. He stated Doe 3, the director at Hope, had taken patients to the hospital with complications on multiple occasions and “Doe 3 thinks of that as a best medical practice.” Wall concedes complications after surgical abortion may not happen very often, but they do happen.

Justice Sotomayor interjected, asking Wall if he thought there could be at least one potential woman burdened by the Act. He conceded it is possible, but no such woman has sued the state. Justice Breyer pushed on the point that several of the abortion clinic physicians claimed it would be difficult to obtain admitting privileges. Wall responded, “these physicians ought to have to put their applications where their mouths are” and actually apply. Justice Kavanaugh asked, “Can that be done?” Wall replied he was “very skeptical that they cannot” and cited Doe 5 has no OB/GYN practice yet was still able to obtain admitting privileges at Touro Infirmary.

Rikelman returned for her closing statement, reiterating her opening remarks and adding that the district court briefly allowed the Act to take effect, while supervising the physicians over one and a half years as they applied for admitting privileges. She concluded by stating “this is not a pre-enforcement challenge.”

From the arguments made and questions asked by the justices, it is difficult to determine which way the Court will rule. Due to two simultaneous cases taking place, the US Supreme Court will likely issue separate rulings. These rulings are expected to come in late June, before conclusion of the October 2019 term [14]

References

  1. Act No. 620, 2014. House Bill 388. (La. 2018). Accessed June 18, 2020. https://www.legis.la.gov/legis/BillInfo.aspx?s=14RS&b=ACT620&sbi=y
  2. Revised Statutes (La. 2020). https://www.legis.la.gov/legis/Laws_Toc.aspx?folder=75&level=Parent
  3. Note: This was later renumbered to R.S. 40:1061.10 by HCR 84 of 2015
  4. Whole Woman’s Health v. Hellerstedt. 136 S. Ct. 2292 (2016). https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf
  5. June Medical Services L.L.C., et al. v. Doctor Rebekah Gee. 905 F.3d 787 (5th Cir. 2018). https://www.supremecourt.gov/DocketPDF/18/18-1323/81802/20190125210048712_2%20Panel%20Opinion.pdf
  6. H.B. No. 2. (Texas 2013) Accessed June 18, 2020. https://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=832&Bill=HB2
  7. June Medical Services L.L.C., et al. v. Stephen Russo. Docket 18-1323 (S. Ct. 2019). Accessed June 18, 2020. https://www.supremecourt.gov/search.aspx?FileName=/docket/docketfiles/html/public/18-1323.html
  8. Louisiana Administrative Code. Title 48, pt. I, § 4407(A)(3). (La. 2020). Accessed June 18, 2020. https://www.doa.la.gov/Pages/osr/LAC-48.aspx
  9. Louisiana Administrative Code. Title 46. (La. 2020). Accessed June 18, 2020. https://www.doa.la.gov/Pages/osr/LAC-46.aspx
  10. Planned Parenthood of Southeastern Pennsylvania v. Casey. 505 U.S. 833 (1991). Oyez. Accessed June 20, 2020. https://www.oyez.org/cases/1991/91-744
  11. Whole Woman’s Health v. Hellerstedt. Ibid.
  12. June Medical Services L.L.C. v. Russo. 18-1312, 18-1460 (S. Ct. 2019) oral arguments. Oyez. Published March 4, 2020. Accessed June 20, 2020.  https://apps.oyez.org/player/#/roberts10/oral_argument_audio/24976
  13. Jeffrey Wall's LinkedIn profile, https://www.linkedin.com/in/jeff-wall-65337588/
  14. “Supreme Court Calendar” Supreme Court of the United States. Accessed June 20, 2020. https://www.supremecourt.gov/oral_arguments/2019TermCourtCalendar.pdf

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official position of Human Defense Initiative.

The History of June Medical Services v. Russo: Admitting Privileges and Abortion Clinics
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