U.S. Supreme Court building. Photo: Mike Scarcella / NLJ

The U.S. Supreme Court on Tuesday sidestepped—at least for now—a challenge to Arkansas restrictions on medication abortions that an appellate court, led by potential Trump U.S. Supreme Court nominee Raymond Gruender, refused to block.

The justices, without comment, denied review in Planned Parenthood v. Jegley. The reproductive health care organization challenged the U.S. Court of Appeals for the Eighth Circuit decision that reversed a district court preliminary injunction against the state law.

The state law requires doctors who provide medication abortions to contract with a second doctor who holds hospital admitting privileges and agrees to handle any complications associated with use of the medication.

The unanimous three-judge federal appeals panel in its July 2017 decision said, “Because the district court failed to make factual findings estimating the number of women burdened by the statute, we vacate the preliminary injunction and remand for further proceedings.”

Gruender, named in 2016 to a Trump short list for any future U.S. Supreme Court vacancy, was joined by two other George W. Bush appointees: William Riley, a circuit judge; and James Gritzner, an Iowa federal trial judge sitting by designation.

Here are three things to know about the case and the lawyers and judges involved in the proceedings:

➤➤  The Trump short-lister central to the case has written several anti-abortion rulings.

In the last decade, Gruender has led three decisions favoring state abortion restrictions. In addition to the Arkansas ruling, he led a 7-4 en banc court in reversing a decision that had ruled unconstitutional a provision in a South Dakota law advising women that they are more likely to commit suicide if they have an abortion.

Gruender, in a 27-page opinion in 2012, said proof of causation was not required. “Various studies found this correlation to hold, even when controlling for the effects of other potential causal factors for suicide, including pre-existing depression, anxiety, suicide ideation, childhood sexual abuse, physical abuse, child neuroticism, and low self-esteem,” Gruender wrote.

In 2008 in Planned Parenthood Minnesota v. Rounds, Gruender also led the en banc court in overturning a preliminary injunction against another provision in the South Dakota law. The provision required doctors to give women prior to an abortion a written statement saying: “the abortion will terminate the life of a whole, separate, unique, living human being,” and that they have “an existing relationship with that unborn human being” that is constitutionally protected.

➤➤  The numbers game. What's a “large fraction” of women harmed?

Without guidance from the justices on why they denied review, the state and Planned Parenthood are left with the Eighth Circuit's decision. Planned Parenthood had asked the justices whether a district court could preliminarily enjoin the Arkansas law without making “a concrete estimate of the number of women who would be prevented or postponed in having an abortion.”

The Eighth Circuit ruled that U.S. District Judge Kristine Baker's ruling failed to make the required finding that the law's contract-physician requirement was an “undue burden for a large fraction of women seeking medication abortions in Arkansas. Instead, it focused on amorphous groups of women to reach its conclusion that the Act was facially unconstitutional.” The court said it wasn't looking for “the exact number” of women unduly burdened but something more than the 12 out of 100 women estimated in the district court.

The Arkansas case now returns to Baker, a Barack Obama appointee who joined the trial bench in 2012. Planned Parenthood officials said Tuesday they will present the evidence the court needs to grant emergency relief. Arkansas, in effect, is the first state to ban medication abortion and to end abortion access to all but one health center in the state, according to Dawn Laguens, executive vice president of Planned Parenthood.

Planned Parenthood's counsel, Carrie Flaxman, was assisted by Jeffrey Fisher of Stanford Law School on the petition. Two amicus briefs supporting the petition were filed by a group of constitutional law professors represented by Alan Schoenfeld of Wilmer Cutler Pickering Hale and Dorr, and by the American College of Obstetricians and Gynecologists represented by Shannon Selden of Debevoise & Plimpton. Arkansas Deputy Solicitor General Nicholas Bronni represented the state.

➤➤  The abortion docket at the high court: Two cases are pending.

The case may well return eventually to the Supreme Court but for now, the justices may have been happy to wait on this one. They have two abortion-related cases pending before the end of the term.

Azar v. Garza is the petition filed by U.S. Solicitor General Noel Francisco seeking to vacate a D.C. Circuit decision that allowed a pregnant immigrant teen to go forward with her abortion. The petition also suggests sanctions against the teen's ACLU lawyers for allegedly misleading the government about the timing of the abortion. The petition will be before the justices' private conference for the 16th time on May 31.

The justices heard arguments on March 20 in National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge to provisions in a California law that require anti-abortion crisis pregnancy centers to post specific types of information about their services and available government services.

 

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