Hmmm: SCOTUS denies Planned Parenthood appeal, allows Arkansas abortion restriction to take effect -- for now

Technicalities, technicalities — and curiosities still. The Supreme Court declined to take up an appeal from Planned Parenthood challenging an Arkansas law that restricts the dispensing of abortion pills, allowing the law to be enforced after an appellate court overturned a temporary injunction. The case remains active, however, and may still result in overturning the law:

The U.S. Supreme Court declined Tuesday to consider whether a controversial Arkansas law restricting access to medication abortions unconstitutionally burdens a woman’s access to abortion services.

By rejecting the legal challenge, the justices allowed a lower court order to lapse that had blocked enforcement of the law, which was passed in 2015. As a result, the restriction will soon take effect.

It applies to medication abortions, which do not require surgery and are available only in the early stages of pregnancy. Patients are given a pill in a doctor’s office and take a second one at home a few days later.

The Arkansas law, the Abortion-Inducing Drugs Safety Act, requires doctors providing medication abortions to have a contract with another doctor, who must have hospital admitting privileges. Its sponsors described it as a safety measure helping to assure that complications arising at home could be quickly treated.

The denial of cert does not in and of itself bless the Arkansas law as constitutional. What it does do is force the district court to offer more specifics on the reasons for the injunction initially imposed. Planned Parenthood sued over the restrictions, arguing that doctors in Arkansas would not agree to contract for admitting privileges with abortionists, making medication abortions impossible to acquire for enough women in the state to make the law “facially unconstitutional.” The district court judge agreed, but the Eighth Circuit appellate court unanimously overturned the injunction on grounds of ambiguity as to how many women would be impacted:

In the present case, the district court abused its discretion because it failed to consider whether Planned Parenthood satisfied the requirements necessary to sustain a facial challenge to an abortion regulation. “Facial challenges are disfavored,” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008), and generally, they can only succeed if the proponent establishes that “no set of circumstances exists under which the [statute] would be valid,” United States v. Salerno, 481 U.S. 739, 745 (1987). For challengesto abortion regulations, however, the Supreme Court has fashioned a different standard under which the plaintiff can prevail by demonstrating that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895. The Supreme Court has clarified that “cases in which the provision at issue is relevant” is a narrower category than “all women,” “pregnant women,” or even “women seeking abortions identified by the State.” Hellerstedt, 136 S. Ct. at 2320 (quoting Casey, 505 U.S. at 894-95). Thus, because the contract-physician requirement only applies to medication-abortion providers, the “relevant denominator” here is women seeking medication abortions in Arkansas. See id. (finding that the “relevant denominator” must be “those women for whom the provision is an actual rather than an irrelevant restriction” (internal alterations omitted)). Accordingly, in order to sustain a facial challenge and grant a preliminary injunction, the district court was required to make a finding that the Act’s contract physician requirement is an undue burden for a large fraction of women seeking medication abortions in Arkansas.

The district court did not make this finding. The court correctly held that individuals for whom the contract-physician requirement was an actual, rather than an irrelevant, restriction were women seeking medication abortions in Arkansas. Nonetheless, it did not define or estimate the number of women who would be unduly burdened by the contract-physician requirement. Instead, it focused on amorphous groups of women to reach its conclusion that the Act was facially unconstitutional. …

As a result, we are left with no concrete district court findings estimating the number of women who would be unduly burdened by the contract-physician requirement—either because they would forgo the procedure or postpone it—and whether they constitute a “large fraction” of women seeking medication abortions in Arkansas such that Planned Parenthood could prevail in its facial challenge to the contract-physician requirement. In situations like this, where the district court did not make the necessary factual findings, “[w]e conclude that the better course is to afford the district court an opportunity to make appropriate findings of fact and conclusions of law.” See Phelps-Roper v. Troutman, 712 F.3d 412, 417 (8th Cir. 2013) (per curiam); see also Mo. Pac. Joint Protective Bd., Bhd. Ry. Carmen v. Mo. Pac. R.R. Co., 730 F.2d 533, 537 (8th Cir. 1984) (“[W]e believe the findings and conclusions should, in the first instance, be made by the district court.”).

In other words, the appellate court told the judge to sharpen some pencils, not to drop the argument. Before imposing an injunction on the basis of a facial argument, the court needs to provide a clear indication of just how many or few women would really be denied an opportunity for abortion. That would allow appellate courts to judge accordingly.

Two issues make this curious, however. First, the Supreme Court has already ruled on the issue of requiring abortionists to have admitting privileges in local hospitals. In 2016’s Whole Woman’s Health v. Hellerstadt, it ruled 5-3 to overturn a Texas law that required admitting privileges as well as demanding that abortion clinic meet the same standards as other outpatient surgical centers. That decision did rely on “undue burden,” but didn’t necessarily have much better mathematical justification as this case does.

The precedent existed for the court to leave the injunction in place at least temporarily, which brings us to the second curiosity. It only takes four justices to grant cert, which means that the case didn’t interest all four of the liberal justices on the court. And that seems mighty curious, given that the decision not to take the case means Arkansas can now start enforcing this law.

Depending on the findings of the lawsuit, could the Supreme Court be rethinking Whole Woman’s Health? It seems doubtful, but anything’s possible. The likeliest outcome will be that the district court will force Planned Parenthood to provide a more substantial undue-burden argument in order to reimpose an injunction, which will then make its way up the appellate chain again. However, don’t forget that Anthony Kennedy turned out to be the swing vote on Whole Woman’s Health, and he might retire before this case makes it all the way back to the Supreme Court. The issue might get a very different result if it returns to a court where Donald Trump has made a second appointment to the top court.