Yesterday the Eighth Circuit Court of Appeals overturned a lower-court decision that had struck down two Missouri laws regulating abortion providers.
The case, Comprehensive Health of Planned Parenthood Great Plains v. Hawley, involved a challenge to a 2007 Missouri law that regulated abortion clinics as “ambulatory surgery centers.” Following this statutory change, all doctors performing abortions at regulated Missouri clinics were required to hold hospital privileges to perform surgical procedures in a locally licensed hospital, within a 15-minute drive of the abortion clinic.
Additionally, regulations adopted by the Missouri Department of Health and Senior Services (DHSS) required clinics offering surgical abortions to comply with a variety of physical-design and layout requirements. However, the DHSS could waive facility-design requirements and has done so in the past for an abortion provider.
Shortly after the Missouri legislature included abortion clinics within the definition of ambulatory surgery centers, Comprehensive Health sued the state. The parties eventually settled that litigation. But following the Supreme Court’s June 2016 decision in Whole Woman’s Health v. Hellerstedt, Comprehensive Health wrote the DHSS and demanded that the state stop enforcing the provisions of the statute entirely. When the state refused, Comprehensive Health joined with another chain of abortion clinics and an abortion doctor to challenge the law. Last year, following a hearing, a federal judge held that both provisions were unconstitutional under Hellerstedt and entered an injunction prohibiting Missouri from enforcing the law.
Superficially, the Supreme Court’s 5–3 decision (the late Justice Antonin Scalia’s seat was still vacant) in Hellerstedt appears conclusive. In that case, the Supreme Court held that two nearly identical provisions in a Texas law — one requiring physicians who perform abortions to have admitting privileges at a nearby hospital and the second requiring abortion clinics to have facilities comparable to an ambulatory surgical center — constituted an undue burden on a woman’s right to abortion and were thus unconstitutional.
However, in its unanimous opinion issued yesterday, the Eighth Circuit stressed that Hellerstedt did not find, as a matter of law, “that provisions similar to the laws it considered would never be constitutional.” Rather, the three-judge panel (appointees of Presidents Ronald Reagan, George W. Bush, and Donald Trump) explained that Hellerstedt “made clear that the undue burden standard ‘requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.’”
Yet, as the Eighth Circuit explained, “the district court here explicitly refused to ‘weigh the asserted benefits’ stating that to do so ‘would be impermissible judicial practice.’” Because the lower court refused to balance the benefits of the laws against the burdens imposed, the appellate court vacated the injunction and sent the case back for further proceedings.
On remand, the abortion providers may still succeed in establishing that the law creates an undue burden on a woman’s access to abortion, but, as the federal appellate court explained, that will depend on the relative benefits and burdens at play in Missouri. It may be that abortions in Missouri are extremely safe (for the mother), as they were in Texas and as the Supreme Court noted in Hellerstedt; or “[p]erhaps there was a unique problem Missouri was responding to under its inherent ‘police power.’” If so, a different response may be needed in Missouri than what was needed in Texas, making the admitting-privileges provisions appropriate, the court explained.
Similarly, the Eighth Circuit noted that the Missouri DHSS facility requirements do not pose the same burden as seen in the Hellerstedt case: There, the regulations would have forced ten Texas abortion clinics to close. No clinics in Missouri would be automatically shuttered as the result of this law, and the plaintiffs could seek waivers from the DHSS, if necessary, to continue operating.
After weighing the respective benefits and burdens, the district court could still enjoin the Missouri law. But in the meantime, according to a DHSS press release from yesterday, the state “will immediately begin enforcing the hospital privileges and physical plant requirements for abortion facilities.”
No matter the outcome on remand, expect this case to return to the Eighth Circuit once the lower court conducts the required undue-burden analysis. And from there? A likely trip to the Supreme Court, where a full slate of justices will be sitting, including Justice Kennedy’s replacement.