Trump’s Judges May Be Engineering a Radical New Ploy to Work Around Roe v. Wade

On Friday, the 5th Circuit will hear arguments in a bizarre standoff over Louisiana’s abortion regulations.

Courthouse exterior.
The John Minor Wisdom courthouse, home of the United States Court of Appeals for the 5th Circuit, in New Orleans. Bobak Ha’Eri/Wikimedia Commons

Louisiana may have devised a ploy to shield its anti-abortion regulations from lawsuits before the plaintiffs even have their day in court. If it succeeds, Texas, Mississippi, and Louisiana could effectively insulate their laws from judicial scrutiny as they regulate abortion clinics out of existence. More states could follow suit, eroding the constitutional right to abortion access even as Roe v. Wade theoretically remains good law.

This stratagem marks the latest effort to work around the Supreme Court’s decision in 2016’s Whole Woman’s Health v. Hellerstedt, which rejected laws that subject abortion clinics to draconian standards. Louisiana has enacted a slew of abortion restrictions designed to shutter clinics. Among other things, these rules require patients to undergo gratuitous vaginal examinations, pregnancy tests, and lab work. They compel clinics to give state officials unhindered access to confidential medical records and send the state a copy of each patient’s ultrasound image. Before conducting the mandatory ultrasound, providers must give an anti-abortion lecture, and as they perform the ultrasound, they must read a script designed to guilt women out of terminating their pregnancies. Providers must also give patients false information about abortion, including the discredited myth that it causes breast cancer. Clinics are subject to strict physical regulations involving everything from room size to faucets to laundry.

These expensive, onerous requirements had their intended effect. They gave inspectors authority to ceaselessly monitor clinics and revoke their licenses for minor infractions, like temporarily running out of paper towels in the bathroom. Under Louisiana’s stringent regime, eight clinics shut down, leaving just three in the entire state. In response, the Center for Reproductive Rights filed a lawsuit in 2017 on behalf of abortion providers challenging the regulations as unconstitutional.

After Whole Woman’s Health, this case should’ve been easy. In that decision, the Supreme Court invalidated Texas’ H.B. 2, a law similar to Louisiana’s. H.B. 2 required abortion providers to obtain admitting privileges at nearby hospitals and meet the standards for ambulatory surgical centers. Texas could not demonstrate that these requirements provided any health benefit to women. The Supreme Court struck down the law, holding that it imposed an “undue burden” on a woman’s right to abortion access. It explained, to assess abortion restrictions, a court must “weigh[] the asserted benefits against the burdens.” If the burdens outweigh the benefits, the law infringes on the Constitution.

Whole Woman’s Health provided a straightforward roadmap for the Louisiana case. U.S. District Judge Brian A. Jackson, an Obama appointee to whom the CRR lawsuit was assigned, should’ve let the state demonstrate that its regulations protected women’s health. CRR could counter the state’s claims with proof that Louisiana’s law does nothing to help women while making abortion harder to access. Jackson would then assess the evidence and decide if the burdens outweigh the benefits. If so, he would be obligated to block Louisiana’s regulations.

This process was about to commence when the Louisiana Department of Justice made a bizarre move. The state’s attorneys filed a writ of mandamus with the 5th U.S. Circuit Court of Appeals, urging the appeals court to force Jackson to dismiss the entire case. Mandamus is a rare device that the Supreme Court has allowed only in “drastic and extraordinary” circumstances. It is appropriate when a district court has “clearly and indisputably erred” and that error is “irremediable on ordinary appeal.” Unless defendants can meet this incredibly high bar, they must wait for a normal appeal like everyone else.

There is nothing drastic, extraordinary, or unusual about this case (I’ll call it June Medical Services v. Gee II because—in a sign of the times—there is another case with the same name that involves a different Louisiana abortion restriction). CRR argues that a legal regime similar to the one invalidated in Whole Woman’s Health is unconstitutional. Jackson allowed the case to proceed to discovery so both sides could make their best arguments. Under normal circumstances, he would eventually issue a decision one way or another, and the losing party could appeal to the 5th Circuit.

Louisiana wants to use mandamus to short-circuit this entire process. Its brief argues that Jackson erred by allowing CRR to challenge the state’s abortion regulations as a whole. Instead, Louisiana asserted that CRR must attack every jot and tittle of the state’s regulations one by one and prove that each one individually imposes an undue burden on women. It may not challenge the “cumulative effects” of the law, and so its suit must be tossed out.

What’s startling about Louisiana’s brief is that the Supreme Court already considered and rejected this argument in Whole Woman’s Health. There, Texas tried to argue that the plaintiffs had to explain why each component of the state’s regulations constituted an undue burden. So, for instance, ambulatory surgical centers must meet specific ventilation requirements, and clinics would have to prove that modifying their air vents was overly burdensome. The court expressly rejected this claim, instead assessing the impact of H.B. 2 as a whole. It affirmed that a state cannot slice its abortion laws into narrow slivers and require plaintiffs to prove that each sliver is unconstitutional on its own. The court’s approach infuriated Justice Samuel Alito, who complained that the majority had “carpet-bomb[ed] state laws” by invalidating many “innocuous requirements.”

Unsurprisingly, Louisiana cited Alito’s complaint in defending its mandamus petition. The state is barely pretending to treat Whole Woman’s Health like good law. Instead, it is relying on the 5th Circuit to buck precedent once again. The appeals court has already ignored Whole Woman’s Health once, upholding a Louisiana admitting privileges law identical to the Texas law that the Supreme Court struck down. Its flagrant defiance of precedent compelled Chief Justice John Roberts, no friend of abortion rights, to step in and block the law. Now Louisiana is asking the 5th Circuit to take an even more extreme step, rejecting the very premise of Whole Woman’s Health to bar clinics from challenging abortion laws in the first place.

The state’s bet may pay off. It drew a radical panel on the 5th Circuit: Judge Priscilla Owen, an extreme anti-abortion conservative; Judge Andrew Oldham, who praised Alito’s Whole Woman’s Health dissent and defended Texas’ anti-abortion laws when he worked for the state attorney general; and Judge Don Willett. Oldham and Willett were nominated by Donald Trump, Owen by George W. Bush. The panel seems to be taking the mandamus petition seriously: It ordered CRR to respond and scheduled oral arguments on the matter, which will be held Friday.

Incredibly, the panel gave Texas—not a party to the litigation—five minutes to argue in favor of mandamus on behalf of itself and Mississippi. Attorneys from Oldham’s old office will explain to the court why it should prematurely throw out the case.

Texas’ participation is a clue about what’s really going on here. The 5th Circuit covers three states: Texas, Louisiana, and Mississippi. Each of these states has enacted some of the country’s most severe abortion restrictions. The 5th Circuit was already right-leaning before Trump placed five reactionaries on the court, including Oldham and Willett. Louisiana, Texas, and Mississippi think they can get the panel to issue a broad decision that shuts future abortion disputes out of court before they even begin. In doing so, the 5th Circuit would essentially overturn Whole Woman’s Health on its own accord, abolishing the precedent within the circuit. Louisiana claims to be demanding judicial restraint, but it is really urging judicial lawlessness.

If the panel grants mandamus and the case works its way up to the Supreme Court, the task of enforcing the law will again fall on Roberts. The chief justice dissented in Whole Woman’s Health, but he does not seem prepared to let lower courts disobey it—at least until it is formally overturned. Justice Brett Kavanaugh, who replaced Justice Anthony Kennedy, does not share his predecessor’s occasional support for abortion rights. Kavanaugh has already voted once to let the 5th Circuit defy Whole Woman’s Health, and there is no reason to believe he won’t do so again.

The rule of law is the law of rules. In Whole Woman’s Health, the Supreme Court laid down two important rules: States cannot put abortion clinics out of business by saddling them with unnecessary regulations, and abortion providers are not obliged to prove that every component of a regulation is unnecessary if the regime, as a whole, creates an undue burden. In case after case, the courts have confirmed another vital rule: Mandamus is appropriate only in exceptionally rare instances when a district court made an egregious and irredeemable mistake. The district court in Gee II did not make any mistake at all; it merely followed precedent. Yet the 5th Circuit may soon declare that states are free to ignore precedent if it happens to protect a woman’s right to choose.