Louisiana Seeks Fifth Circuit Intervention in Abortion Case

The Fifth Circuit heard oral arguments on a challenge to Louisiana’s abortion laws at the federal courthouse in Austin. (Billy Hathorn via Wikipedia)

AUSTIN, Texas (CN) – Louisiana’s solicitor general Friday asked a Fifth Circuit panel to grant the state extraordinary relief in a case brought by abortion providers challenging a host of health regulations, which they claim are unconstitutionally burdensome on patients and staff members.

Solicitor General Elizabeth Murrill asked a three-judge panel of the circuit court in a special hearing in Austin, Texas, to direct a lower court to dismiss part of the plaintiffs’ “kitchen sink pleading attacking a bundle of laws and regulations.”

June Medical Services and two doctors are challenging 13 specific regulations set forth by Louisiana’s Outpatient Abortion Facility Licensing Law – as well as the entirety of that law – and 12 of what they refer to as “sham health statutes” that restrict who can provide abortions and that dictate the provision of care. One of the regulations, according to the plaintiffs, requires abortion providers to supply to their patients “false, misleading, or irrelevant information. ” 

In their amended complaint, the plaintiffs claim the licensing law requires abortion providers to “satisfy a tortuous series of medically unnecessary requirements” to obtain a license, and that other health care providers that perform procedures that have a similar or greater risk of complications are not bound by the same regulations. 

U.S. District Judge Brain Jackson denied the state’s motion to dismiss part of the plaintiffs’ claims in March, finding that the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt allows for abortion providers to bring cumulative challenges to groups of regulations that may infringe upon a woman’s constitutional right to abortion. 

In response to that dismissal, the state filed a petition for writ of mandamus asking the circuit court to direct Jackson to dismiss two counts of the plaintiffs’ complaint and evaluate the challenges to individual abortion laws “under the correct pleading and jurisdictional standards.”

“Mandamus is extraordinary relief, but this is an extraordinary case,” Murrill told the panel Friday. “This district court permitted a frontal assault on an entire existing state regulatory system.”

Plaintiffs’ attorney Shannon Selden, of the New York firm Debevoise & Plimpton, told the panel that it “shouldn’t be in the business” of reviewing factual allegations of a complaint after the denial of a motion to dismiss. 

“The only question before this panel today is how far it is willing to go to bypass the ordinary rules of civil and appellate procedure to create a fast-track for merits review in abortion cases,” Selden said. 

U.S. Circuit Judge Don Willett, an appointee of President Donald Trump, asked Murrill why an ordinary appeal would be inadequate in this case. 

“Federal courts handle complex, colossally big cases everyday,” Willett said. “What makes appeal an inadequate means of relief?”

Murrill said that the claims would “paralyze the state” from being able to regulate health care facilities and abortion, in violation of its sovereign interest to do so. 

“They are essentially asking the federal court to place the state under continuing jurisdiction. That’s an astonishingly unusual claim,” Murrill said. “So I think the novelty of the claim also justifies mandamus and it makes this case different from a case where we might be able to remedy the problem on appeal.” 

Judge Andrew Oldham, also a Trump appointee to the Fifth Circuit, grilled Selden as to the actual injuries the regulations would inflict upon abortion providers.  

“We are obligated as federal courts … to ensure injury in fact traceable to actions of the defendant redressable by a remedy of a federal court,” Oldham said. “And my question is simply how does the requirements about physical space, how do the requirements of toilet facilities and hot and cold water – how do these things injure the plaintiff?”

Selden replied that the regulations increase the “cost and burden” of providing abortion services.

Fifth Circuit Judge Priscilla Owen, appointed by George W. Bush, asked Selden what relief the plaintiffs expect and whether they sought a ruling that would provide that they do not need to have hot and cold water, or that clinics could move to a place of any size. 

“The relief that we expect the district court to grant … is injunctive relief preventing the unconstitutional enforcement and application of laws that treat abortion care and the women who seek to receive it differently from every other form of reproductive care or other similarly safe medical intervention in the State of Louisiana,” Selden said.  

Louisiana ceded part of its time for arguments to Texas’ Assistant Solicitor General Heather Hacker, who said that the case could potentially “harm” other states.

The panel did not indicate when it would issue its ruling on the petition for writ of mandamus. 

The plaintiffs are also represented by attorneys with the Center for Reproductive Rights. 

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