AGs in 11th Circuit Ask SCOTUS to Rethink Abortion Precedent
Georgia Attorney General Chris Carr, Florida Attorney General Ashley Moody and Alabama Attorney General Steve Marshall argued their states restrictions on abortion protect women from providers with "a macabre history of disregarding basic clinical competence and sanitation."
January 03, 2020 at 04:44 PM
5 minute read
The attorneys general of Georgia, Florida and Alabama filed a brief Thursday urging the U.S. Supreme Court to overturn its precedent in favor of women's right to choose whether to end a pregnancy.
The 49-page brief, filed in a case over a Louisiana abortion law taken up by the high court, outlined a strategy for defending abortion restrictions in the three states overseen by the U.S. Court of Appeals for the Eleventh Circuit based in Atlanta.
"Amici States routinely face preenforcement challenges to their abortion laws brought by abortion providers," Georgia Attorney General Chris Carr, Florida Attorney General Ashley Moody and Alabama Attorney General Steve Marshall said in the brief. "In such cases, abortion practitioners regularly assert the rights of hypothetical future patients without presenting direct evidence of how the challenged law will actually impact women seeking abortion. This case provides an opportunity to clarify this Court's doctrine on the availability of third-party standing to challenge state health-and-safety regulations, the proper standard for preenforcement challenges in the abortion context, and how lower courts should conduct the balancing analysis set forth in Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016)."
Both Carr and Marshall are already appealing federal judges' orders blocking abortion restrictions in their own states. Georgia's law bans abortion as soon as doctors can detect fetal pulse sounds. The Alabama law bans all abortions, with no exceptions.
The three Eleventh Circuit AGs joined their counterparts from a total of 20 states asking the high court to reconsider its abortion rights rulings in Roe v. Wade and Planned Parenthood v. Casey. The AGs wrote in support of a Louisiana law requiring doctors who provide abortions to have admitting privileges at hospitals within 30 miles of the clinic. Abortion rights advocates have argued that that requirement is unnecessary because so few abortions lead to hospitalizations and that it imposes an "undue burden" on women—precluded by Planned Parenthood v. Casey.
The U.S. Court of Appeals for the Fifth Circuit in New Orleans has upheld the Louisiana law. The AGs asked the Supreme Court to affirm the Fifth Circuit or order the dismissal of the challenge. They made three arguments in favor of the Louisiana law. They said the medical providers challenging it lack standing to do so—an argument also made in other cases, including Georgia's. They said preenforcement challenges can't provide evidence of women being affected by laws that have not yet taken effect. And they argued for a different analysis to be used in lower courts.
"In rejecting Petitioners' claims, the Fifth Circuit properly applied Hellerstedt's weighing analysis. Unlike the Fifth Circuit, some lower courts have wrongly suggested that Hellerstedt requires invalidating a health-and-safety regulation any time its burdens marginally outweigh its benefits. But a regulation only imposes an undue burden where it is substantially more burdensome than beneficial," the AGs said.
"Amici States urge the Court to preclude abortion providers from invoking the rights of hypothetical future patients in challenging health-and-safety regulations (such as admitting-privileges requirements) designed to protect those patients," the AGs said. "The Court should also hold that a preenforcement facial challenge to an abortion regulation cannot succeed without evidence of the challenged regulation's actual impact on women. And should the Court reach the merits of Petitioners' challenge, the Court should clarify that health-and-safety regulations impose an undue burden only if the burdens they impose—by causing women to forgo an abortion or materially delay and face significantly greater risks—substantially outweigh those regulations' benefits."
The AGs argued that their states' restrictions on abortion protect women from providers with "a macabre history of disregarding basic clinical competence and sanitation."
"That history underscores why courts and the States cannot trust practitioners to safeguard women's interests," the AGs said. "Third-party standing requires a unity of interests, which practitioners lack when challenging regulations that protect women from practitioners themselves."
The brief cited a list of instances where abortion providers had been found to be operating in unsafe and unsanitary clinics. The AGs alleged that clinics had used patients' interests to support their own business models.
The AG's brief tracked with another filed the same day by 39 Republican U.S. senators and 160 members of the U.S. House of Representatives urging the Supreme Court to reconsider its abortion rights rulings.
Stroock & Stroock & Lavan filed a brief last month on behalf of 36 Senate Democrats supporting the Supreme Court's abortion rights rulings in Roe v. Wade and Planned Parenthood v. Casey.
The Supreme Court is to hold oral arguments on the Louisiana appeal on March 4.
The case is June Medical Services v. Dr. Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals, Nos. 18-1323, 18-1460.
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