Andrew Oldham testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. Circuit Judge for the Fifth Circuit in April 2018. (Photo: Diego M. Radzinschi / ALM)

Lawyers for Louisiana and Texas are relying on President Donald Trump’s recent emoluments clause victory to press a federal appeals court to use a rare remedy to thwart a complaint that broadly challenges Louisiana’s abortion regulatory scheme.

A lawyer for Louisiana, which lost its motion to dismiss the suit, on Friday urged the U.S. Court of Appeals for the Fifth Circuit to issue a writ of mandamus, a move that could stop the case in its tracks before any finding on the merits.

The U.S. Supreme Court has said an appellate court may issue that order only on a finding of “exceptional circumstances amounting to a judicial usurpation of power,” or a “clear abuse of discretion” by a district court. The appeals panel that heard arguments included two recent Trump appointees—Judges Don Willett and Andrew Oldham—and Judge Priscilla Owen, a George W. Bush appointee.

“The petitioners have brought kitchen-sink pleading,” Louisiana Solicitor General Elizabeth Murrill told the three-judge panel hearing the case June Medical Services v. Gee. “They are enormous claims that create an enormous invasion of state interests to regulate health facilities generally and specifically with regard to abortion.”

The resolution of the case could have broader reach, providing a new avenue for Republican-led states looking for ways to rein in abortion-related challenges and a new hurdle for the challengers themselves. Similar, broadly themed cases as the Louisiana challenge are pending in other states outside the Fifth Circuit, which hears federal appeals from Texas, Mississippi and Louisiana. Texas Solicitor General Heather Hacker was granted argument time in the case as a friend-of-the-court backing Louisiana.

Willett, a former Texas Supreme Court justice, pressed Murrill to identify the cases she was relying on for her assertion that a writ of mandamus was appropriate to stop the abortion litigation. Murrill, and later Hacker of Texas, both cited In re Donald J. Trump, a July 10 decision by the Fourth Circuit.

Judge Don Willett. (Photo: Diego M. Radzinschi / ALM)

The panel in that case dismissed a suit by Maryland and the District of Columbia that alleged Trump had violated the Constitution’s emoluments clauses. A three-judge panel granted Trump’s petition for a writ of mandamus, and the decision halted the ability of the District and Maryland to explore the president’s financial affairs.

“I would compare this to that, where the court said that mandamus is appropriate to protect the state from vexatious litigation that distracts state officers from performing their constitutional duties,” Murrill told the Fifth Circuit panel. “This is exactly that kind of litigation.”

The Louisiana lawsuit, filed by the Center for Reproductive Rights and New York’s Debevoise & Plimpton on behalf of June Medical Services, alleged that the state’s Outpatient Abortion Facility Licensing Law, 13 of its implementing regulations and 12 provisions of Louisiana’s criminal code and public health laws are unconstitutional.

The complaint said the regulations “had the purpose and effect of placing substantial obstacles in the way of women seeking abortions and radically limiting access to safe and legal abortion to the detriment of women’s health.”

“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,” Debevoise & Plimpton partner Shannon Selden told the Fifth Circuit panel.

Louisiana has asked the panel to dismiss two counts in the lawsuit and to apply “correct pleading and jurisdictional” rules to the claims involving individual abortion regulations.

Selden urged the Fifth Circuit not “to be in the business of reviewing the factual allegations of a complaint after the denial of a motion to dismiss.” A writ of mandamus, Selden argued, “is an extraordinary writ, not a ticket to the fast lane.”

But Oldham, formerly general counsel to Texas Gov. Greg Abbott and a law clerk to Justice Samuel Alito Jr., pressed Selden often on the particulars of the complaint and on whether, and how, her clients were harmed by such regulations as those involving physical space, hot and cold water and sterile instruments.

“Plaintiffs are not required to plead with particularity exactly what would happen if the statute were struck down,” Selden told Oldham in one exchange. The district court, Selden said, found sufficient facts to put Louisiana on notice about the claims, she said. What the exact effect of each challenged regulation is and the appropriate relief “is a question for the district court,” she argued.

Selden warned that “defendants would line up down the block” if they thought they could petition for mandamus whenever a trial judge denied a motion to dismiss. “One of the great promises of the federal rules and process is any litigant can file a claim and will be heard and the same rules apply to all,” she said.

Louisiana’s Murrill told the appeals judges that she “takes issue” with Selden’s argument that the Fifth Circuit can’t “airlift” claims out of the district court. “It can do that,” she said. “It is the only remedy we have when harms can’t be addressed any other way.”

June Medical Services has a petition for review pending in the U.S. Supreme Court in which it challenges a Fifth Circuit decision that upheld a state law requiring abortion providers to have admitting privileges at local hospitals. The Supreme Court, in a 5-4 ruling in February, put the Fifth Circuit decision on hold pending the filing of a petition.

 

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