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June Med. Servs., L.L.C. v. Gee - 905 F.3d 787 (5th Cir. 2018)


With respect to the standard for the facial invalidation of abortion regulations, there is no doubt that Whole Woman's Health v. Hellerstedt imposes a balancing test. It is not a "pure" balancing test under which any burden, no matter how slight, invalidates the law. Instead, the burden must still be substantial. To fail constitutional scrutiny, a law must place a substantial obstacle in the path of a woman seeking an abortion. Planned Parenthood of Southeastern Pennsylvania v. Casey expressly allows for the possibility that not every burden creates a "substantial obstacle." The incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability does the State reach into the heart of the liberty protected by the Due Process Clause. Thus, even regulations with a minimal benefit are unconstitutional only where they present a substantial obstacle to abortion. A minimal burden even on a large fraction of women does not undermine the right to abortion.


Louisiana enacted the Unsafe Abortion Protection Act (Act 620 or Act), requiring abortion providers to have admitting privileges at a hospital located within 30 miles of the clinic where they perform abortions. Plaintiffs Bossier Medical Suite (Bossier), Causeway Clinic (Causeway), Hope Medical Group for Women (Hope) and two abortion doctors—Doe 1 and Doe 2 - (collectively “June Medical”) sued to enjoin the Act, mounting a facial challenge, claiming that the Act placed an undue burden on women's access to abortions. The district court entered a temporary restraining order allowing the doctors to seek privileges during the preliminary-injunction proceedings. Thereafter, the court granted a preliminary injunction, concluding that Act 620 would substantially burden a large fraction of women. Therefore, the trial court invalidated the law.


Was Louisiana Unsafe Abortion Protection Act (Act 620) facially unconstitutional?




The Court noted that Act 620 evidenced an intent to promote women's health by ensuring a higher level of physician competence, but the court did not clearly err in finding that it provided minimal benefits, given the current standard of care in highly specialized hospital settings. However, the trial court clearly erred in holding the Act unconstitutional for the same did not impose a substantial burden on a large fraction of women seeking abortions in Louisiana as there was no evidence any clinic would close as a result of the Act. Moreover, the Court held that the plaintiffs failed to establish a causal connection between Act 620 and doctors' inability to obtain admitting privileges, as there was insufficient evidence to find that doctors could not obtain privileges if they made a good-faith effort to comply with Act 620. Thus, the Court reversed the judgment of the trial court.

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