Bench Memos

Law & the Courts

Overbroad Protective Order Conceals Important Evidence in Louisiana Abortion Case

In March, the Supreme Court will hear oral argument in June Medical Services v. Gee. In that case, the Court has granted both the petition of abortion providers challenging a Louisiana law on hospital admitting privileges and the state of Louisiana’s cross-petition challenging the proposition that the abortion providers have “third-party standing” to represent their patients’ interests. As the cross-petition explains, this proposition deviates from the third-party standing rules that apply to everyone else.

An opinion last week by Fifth Circuit judge Jennifer Elrod (at pp. 3-10 here) indicates that a “remarkably overbroad” protective order entered by the district judge in a related case would prevent the state of Louisiana from presenting evidence to the Supreme Court that is “directly relevant” to the question whether abortion providers adequately represent the interests of their patients. As Judge Elrod discusses, one document subject to the protective order is the deposition of plaintiff-physician Doe 2:

According to Louisiana, Doe 2 testified during his deposition that another Louisiana abortion provider, Doe 5, violates the standard of care for second-trimester abortions. Doe 2 also testified that the standard of care for second-trimester abortions is dilation and evacuation. Yet Doe 2 also testified that Doe 5 performed induction abortions through 19 weeks of gestation. Louisiana points out that Doe 2 testified that a 19-week fetus delivered intact “can show signs of the heartbeat and rudimentary movements” and that Doe 2 had personally experienced a live birth between 14 and 15 weeks. Doe 2 stated that with the labor induction method, such live births are “certainly a possibility.” A licensed physician violating the standard of care is directly relevant to whether that physician adequately represents the interests of his or her patients. That question is relevant to [Louisiana’s] challenge to third-party standing in June Med. Servs. L.L.C. v. Gee, a case involving many of these same parties, currently before the Supreme Court. Yet [Louisiana] is unable to submit this deposition to the Supreme Court in June [Med. Servs.] because of the district court’s protective order in this case. [Emphasis added; citations simplified.]

Further, that deposition may also shed important light on Doe 2’s own fitness to represent the interests of his patients:

Louisiana also argues that the same deposition may provide support for the proposition that Doe 2 committed crimes in connection with his abortion practice. According to Louisiana, in one incident, Doe 2 may have failed to report the forcible rape of a fourteen-year-old girl. Cf. La. Stat. Ann. § 14:403 (requiring mandatory reporters to report sexual abuse of a minor). In another, Louisiana proffers that Doe 2 may have knowingly performed an abortion on a minor without parental consent or judicial bypass. Cf. La. Stat. Ann. § 40:1061.14. Louisiana also contends that Doe 2 may also have failed to maintain medical records, in violation of state law. Cf. La. Stat. Ann. § 40:1061.19.

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