U.S. Court of Appeals for the Fifth Circuit. Photo: Mike Scarcella/ALM

A federal appeals court on Friday refused to stop a sweeping challenge to abortion regulations in Louisiana, but the ruling requires the plaintiffs to show why they believe they have a legal foundation to bring their claims in the first place.

The U.S. Court of Appeals for the Fifth Circuit's unsigned ruling rejected the state's request for a writ of mandamus, a rare order that could have stopped the claims short before they're fully aired. The case was closely watched, as a ruling in favor of Louisiana could have had broader implications across the Fifth Circuit. Lawyers for Texas and Mississippi supported Louisiana's push to stop the federal litigation from proceeding.

The three-judge panel described the abortion case as "extraordinary" because the plaintiffs, represented by a team from Debevoise & Plimpton, seek to challenge a raft of state laws under a "cumulative effects" theory. That theory is "unprecedented," according to the appeals court. The appeals court sent the case back to the lower court to assess whether the plaintiffs have legal "standing" to bring their claims.

"The plaintiffs' theory, as we understand it, is that Louisiana's various laws and regulations regarding abortion cumulate to an undue burden," the opinion stated. "But before any federal court can analyze the 'cumulative effects' of Louisiana's laws, we must know which laws plaintiffs have standing to challenge. Again, jurisdiction first."

The U.S. Supreme Court has not "blessed such a claim," and to the contrary has analyzed abortion provisions separately, the Fifth Circuit panel said. Chief Judge Priscilla Owen heard the case with Judges Don Willett and Andrew Oldham.

Andrew Oldham testifies at his confirmation hearing. Photo: Diego M. Radzinschi/ALM

The Supreme Court will hear arguments this term in another Louisiana abortion case: June Medical Services v. Gee. That case challenges the state requirement that abortion physicians  have hospital admitting privileges within 30 miles of an abortion facility.

The appeals court ruling Friday called Louisiana's efforts to stop the case a "close call" but said for various reasons that the court would not issue—at least for now—a writ of mandamus. The federal district court trial judge must review whether and how the plaintiffs have "standing" to challenge individual provisions.

"It's theoretically possible these provisions could injure plaintiffs," the panel stated. "But Article III requires more than theoretical possibilities."

The appeals court expressed concern about the possible "astronomical" legal fees that Louisiana could be on the hook to pay, if the state loses.

The court pointed to the $2.5 million in fees and expenses that were awarded in August 2019 to the challengers in the case Whole Woman's Health v. Hellerstedt. The lawyers for the challengers included a team from the major U.S. law firm Morrison & Foerster.

Debevoise & Plimpton sign. Photo: Rick Kopstein/ALM

"Regardless of whether plaintiffs prevail in this case, the mere prospect of shifting Debevoise & Plimpton's multi-million-dollar fee request to the shoulders of Louisiana's taxpayers will force the state to litigate this case in ways that are far from ordinary," the Fifth Circuit said in its ruling Friday.

Debevoise & Plimpton partner Shannon Rose Selden in New York, the attorney who argued the case in the Fifth Circuit for the plaintiffs, said Friday she's pleased the panel rejected the state's petition.

"The state can't use mandamus as a fast-track to bypass the district court and appeal process," she said. "Now the case will return to the trial court where it belongs."

She added that although the opinion contained the Fifth Circuit's thoughts about the case, those opinions were purely advisory and nonbinding under the Fifth Circuit's own precedent.

The law firm represented the plaintiffs for free as part of its normal pro bono practice, which is dedicated to protecting women's reproductive health care rights, Selden said.

"We fortunately represent doctors, clinics, patients and leading medical organizations, in courts across the country, seeking to make sure that women and girls have access to the full slate of reproductive health care, including abortion care, and their substantive due process rights are protected," Selden said. "We work hard on behalf of individual clients and amicus parties to make sure those rights are vindicated."

Louisiana Attorney General Jeff Landry said in a statement: "This lawsuit was always an overreach—it was filed by abortion clinics and doctors with poor safety records to evade regulation, even on common sense safety measures that benefit and protect women. We are gratified that the Fifth Circuit reaffirmed very basic rules that apply when State laws are challenged in federal courts."

Texas Solicitor General Kyle Hawkins, who wrote an amicus brief for the State of Texas, also was not immediately reached for comment.

 

Read Friday's Fifth Circuit ruling here:

 

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