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June Medical Services L.L.C. v. Gee

United States Court of Appeals, Fifth Circuit

September 26, 2018

JUNE MEDICAL SERVICES L.L.C., on behalf of its patients, physicians, and staff, doing business as Hope Medical Group for Women; JOHN DOE 1; JOHN DOE 2, Plaintiffs-Appellees,
v.
DOCTOR REBEKAH GEE, in her official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Louisiana

          Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE

         Louisiana enacted the Unsafe Abortion Protection Act ("Act 620" or "the Act"), requiring abortion providers to have admitting privileges at a hospital located within thirty miles of the clinic where they perform abortions.[1] On remand for consideration in light of Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292 (2016) ("WWH"), the district court invalidated the Act as facially unconstitutional. The court overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH. Here, unlike in Texas, the Act does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority. Careful review of the record reveals stark differences between the record before us and that which the Court considered in WWH.

         Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually. Few Louisiana hospitals make that demand. Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act. In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana. Unlike the record in Louisiana, the record in Texas reflected no benefits from the legislation. Finally, because of the closures, the remaining Texas clinics would have been overwhelmed, burdening every woman seeking an abortion. In Louisiana, however, the cessation of one doctor's practice will affect, at most, only 30% of women, and even then not substantially.

         That is only a summary. As we explain in detail, other facts underscore how dramatically less the impact is in Louisiana than in Texas. Because the Louisiana Act passes muster even under the stringent requirements of WWH and the other Supreme Court decisions by which we are strictly bound, we reverse and render a judgment of dismissal.

         I.

         Act 620 requires "a physician performing or inducing an abortion" to "[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services." La. Stat. Ann. § 40:1061.10(A)(2)(a). "'[A]ctive admitting privileges' means that the physician is a member in good standing of the medical staff of a hospital that is currently licensed by the department, with the ability to admit a patient and to provide diagnostic and surgical services to such patient . . . ." Id. Each violation can result in a fine up to $4, 000. Id. § 40:1061.10(A)(2)(c).[2]

         Act 620 is premised on the state's interest in protecting maternal health. Introducing the Act, Representative Katrina Jackson explained, "[I]f you are going to perform abortions in the State of Louisiana, you're going to do so in a safe environment and in a safe manner that offers women the optimal protect-tion and care of their bodies." During consideration of the Act, the Louisiana Senate Committee on Health and Welfare heard testimony from women who had experienced complications during abortions and had been treated harshly by the provider. For example, Cindy Collins with Louisiana Abortion Recovery testified that when she underwent an abortion and began to hemorrhage, "the abortion doctor could see that something had gone wrong" but, instead of assisting her, "told [her] to get up and get out." She eventually required an emergency dilation and curettage ("D&C"). Testimony also established numerous health and safety violations by Louisiana abortion clinics.

         In addition to the concern for maternal health expressed at the hearing, Louisiana has an underlying interest in protecting unborn life. The state has codified its intent to "regulate abortion to the extent permitted." La. Stat. Ann. § 40:1061.8. Its longstanding policy is that "the unborn child is a human being from the time of conception and is, therefore, a legal person . . . entitled to the right to life." Id. And, Louisiana enacted a trigger law such that "if those decisions of the United States Supreme Court [legalizing abortion] are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions shall be enforced." Id.

         A.

         Act 620 was set to become effective September 14, 2014, but on August 22, 2014, Bossier Medical Suite ("Bossier"), Causeway Clinic ("Causeway"), Hope Medical Group for Women ("Hope"), [3] and two abortion doctors―Doe 1 and Doe 2[4]― (collectively "June Medical") sued to enjoin the Act, [5] mounting a facial challenge, claiming that the Act placed an undue burden on women's access to abortions. The district court entered a temporary restraining order allowing the doctors to seek privileges during the preliminary-injunction pro-ceedings.[6] After a bench trial, the court granted a preliminary injunction on January 26, 2016, [7] and denied a stay pending appeal.[8]

         Louisiana requested and received from this court an emergency stay[9] that the Supreme Court vacated on March 4, 2016.[10] After the Supreme Court decided WWH, we remanded "so that the district court can engage in additional fact finding required by [WWH]."[11] The district court entered final judgment April 26, 2017, permanently enjoining the Act. The court found "minimal" health benefits but "substantial burdens" and ruled the Act unconstitutional on its face under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and WWH.[12] Louisiana appeals.

         B.

         At the time of enactment, only five abortion clinics operated in Louisiana, and only six doctors performed elective abortions, of whom only one had qualifying admitting privileges. Since the enactment, two clinics have closed for reasons unrelated to the Act, and at least one doctor has obtained qualifying privileges. The analysis is fact-bound, as required by WWH, 136 S.Ct. at 2310, so we begin with a detailed overview of each clinic and the abortion doctors it employs.

         1. The Causeway Clinic

         Causeway opened in 1999 and was located in Metairie, a suburb of New Orleans. It closed February 10, 2016, for reasons not disclosed in this record.[13]It had provided only surgical abortions during the first and second trimesters. Between 2009 and mid-2014, about 10, 836 abortions were performed there. Causeway employed two abortion doctors, Doe 2 and Doe 4, neither of whom held admitting privileges at the time of Act 620's enactment. Within 30 miles of Causeway's former location, there are 10 qualifying hospitals.

         a. Doe 2

         Doe 2 is a board-certified OB/GYN who has been performing abortions since 1980.[14] He is the only doctor in Louisiana willing to provide abortions after 18 weeks up to the legal limit of 21 weeks, 6 days.[15] At Causeway, Doe 2 performed only surgical abortions between 6 weeks and 21 weeks, 6 days. He worked 2 weekends a month and performed 25% of the clinic's abortions. In 2014, he estimated he performed about 450 abortions at Causeway, the majority being first-trimester terminations.

         From 2009 through mid-2014, Doe 2 had only two patients who required hospitalization.[16] In one instance, during a second-trimester procedure, the woman experienced heavy vaginal and intra-abdominal bleeding from a rupture of her incision from a prior C-Section. Doe 2 called 9-1-1 and sent her charts and a note explaining the situation to the emergency room doctor. Doe 2 also called the doctor before the woman's arrival to explain the situation and visited her in the hospital after the surgery.

         The second instance was also a second-trimester termination. The woman experienced some bleeding from uterine atony, and though Doe 2 believed it was non-critical bleeding, he called 9-1-1 to be safe. Though he did not have admitting privileges before the Act's effective date, Doe 2 has since secured limited, non-qualifying[17] privileges at Tulane in New Orleans.[18] b. Doe 4 Doe 4 is 82 years old and a board-certified OB/GYN with over 51 years' experience.[19] He once provided abortions at the Acadian clinic but stopped in 2003 when that clinic closed. Though he retired from practice in 2012, Causeway requested in 2013 that he fill in for a doctor who had fallen ill. He agreed and provided abortions (for the first time in ten years) at Causeway until its closure. Other than ensuring that Doe 4 remained board-certified, had a DEA license, and "was in good standing with the medicals," Doe 4 knows of no other review undertaken, similar to hospitals' credentialing process, that ensures a doctor has the requisite skills and capacity to perform relevant procedures.

         Doe 4 worked Thursdays and every other weekend and performed 75% of the abortions that were done at the Causeway Clinic; all of his were first-trimester terminations. Doe 4 "imagine[s] [he performs] about a thousand, fifteen hundred" abortions annually. He explained he would provide from 5 to 15 abortions per day and that there was not a high demand or "a significant volume of business" at the Causeway clinic.

         Since resuming his abortion practice in 2013, Doe 4 has had one patient experience heavy bleeding caused by an atonic uterus. An ambulance had to be called, as the woman was not responding. Doe 4 thinks he "sent a note with her or a copy of her chart went with her to the emergency room," then he explained the situation to the doctor over the phone.

         Doe 4 does not currently possess admitting privileges but did apply to Ochsner at Kenner. He applied only to Ochsner because he "worked at Ochsner before in Baton Rouge and [he] had a doctor who had privileges at Ochsner who would certify that he would back up for" him. Other than a request for additional information (which he provided) and learning that Ochsner had spoken to one of his references, Doe 4 did not receive a decision on his application, though he "think[s] he [has] a very good chance of getting privileges there." Doe 4 agreed that requiring the covering doctor to be an OB/GYN is not "an overburdensome requirement for admitting privileges."[20] But he does not know any OB/GYNs in the area because "[a]ll the doctors that [he has] known, they've kind of died out. . . . [or] are no longer in practice."

         Upon Causeway's closure, Doe 4 stopped performing abortions and no longer intends to seek admitting privileges. Nothing in the record suggests he has been asked to continue at any other clinic or that the Act has caused him not to move to another clinic. In fact, during his deposition (when still working at Causeway) he was asked whether he would work at other clinics if requested, and he stated he was already "working more than enough for [his] age" and "do[es]n't want to work more." That would be his "personal choice."

         2. The Bossier Clinic

         Bossier Medical Suite opened in 1980 and was located in Bossier City in Northwestern Louisiana. It closed on March 30, 2017, for reasons not reflected in this record.[21] It provided both medication and surgical abortions[22] during the first and second trimesters. Between 2009 and mid-2014, about 4, 171 abortions were performed there. Bossier employed one abortion doctor, Doe 2, who did not hold admitting privileges at the time of the Act's enactment.[23]There are 5 qualifying hospitals within 30 miles of Bossier.

         In addition to his work at Causeway, Doe 2 provided medical and surgical abortions at Bossier, his primary clinic. He worked there Tuesday through Saturday when he was not going to Causeway and Tuesday, Wednesday, and Thursday when he was going to Causeway. In 2014, he performed about 550 abortions at Bossier, at least 90% of which were first-trimester terminations.

         Doe 2 applied for privileges within thirty miles of the Bossier clinic. Because he already had consulting privileges at University Health, Doe 2 inquired about upgrading to courtesy privileges. He says that the "head of the department [of OB/GYN] . . . was very reticent and reluctant to consider that because of the political nature of" abortion. The department head spoke with the Dean and then informed Doe 2 "that [he was] not going to go beyond [his] [consulting] privileges."

         Doe 2 also applied to Willis Knighton Bossier City Hospital ("WKBC") on May 12, 2014. WKBC sent a letter indicating that "applicants must demonstrate they have been actively practicing Obstetrics/Gynecology (in your case only Gynecology) in the past 12 months." "In order for the Panel to sufficiently assess current clinical competence," WKBC requested that Doe 2 "submit documentation, which should include operative notes and outcomes, of cases performed within the past 12 months for the specific procedures you are requesting on the privilege request form." Doe 2 testified that "it would have been impossible for [him] to submit that information . . . because [he has not] done any in-hospital work in ten years, so there is no body of hospitalized patients that [he has] to draw from."

         Doe 2 sent an email to WKBC indicating that "[o]ver the past 12 months [he] performed the procedures [he is] requesting privileges for several hundred times with no major complications" at Bossier. Instead of attaching documentation to that email, however, he merely invited "any qualified person who would like to visit the Clinic and examine the records" to do so. Doe 2 initially testified that was his only response, but he later vaguely contradicted himself on re-direct, [24] prompting the district court to question him directly to determine whether he had submitted any information. In response, Doe 2 stated, "I actually called . . . and [they] said send 20 representative cases and that's what I did."

         It remains unclear whether Doe 2 sent a list of cases, as no document supporting that contention was ever supplied. Even the district court, in its thoroughly documented opinion, did not point to any evidence other than Doe 2's contradictory testimony. WKBC responded via letter that his answer (whatever it was) was not satisfactory. WKBC stated that the "application remains incomplete and cannot be processed" until the pertinent list of cases was submitted. Thus, Doe 2 has not been able to secure privileges at WKBC.

         Doe 2 has not applied, nor does he intend to apply, to any other hospital within thirty miles of Bossier. For instance, he refused to apply to Christus Schumpert. He says applying would be fruitless because the Catholic hospital would be unlikely to grant him privileges on account of the nature of his work.

         That assumption is belied by Doe 2's own personal history. He previously secured privileges at that hospital when he had both an OB/GYN practice and an abortion practice. Furthermore, as Doe 2 is aware, Doe 3 maintains privileges at that hospital.

         Doe 2 also said he had no intention of applying to Minden Hospital because it was "very close to the [geographic] limits," is "a smaller hospital," and he "[doesn't] really know anyone there." Though a smaller hospital and close to the thirty-mile limit, Minden is a qualifying hospital under the Act.

         3. Delta Clinic

         Delta, in Baton Rouge, has offered abortions since 2001. It provides medication and surgical abortions up to the seventeenth week.[25] Between 2009 and mid-2014, it provided about 8, 800 abortions. Two of those patients required direct hospital transfer, one because she "decided during a procedure that she no longer wanted to have the abortion," and "the physician had already begun the process." Delta employs one abortion doctor, [26] Doe 5, who does not hold admitting privileges within thirty miles of Delta. Four qualifying hospitals are located within thirty miles of Delta.

         Doe 5 is a board-certified OB/GYN who has performed abortions since April 2012, when he started working at the Delta and Women's clinics.[27] He began working there after receiving a letter the clinics sent to all licensed physicians in Louisiana advertising the open position. Doe 5 is at Delta on Tuesdays and Thursdays but works additional days when necessary. It does not appear that Doe 5 maintains a separate OB/GYN practice.

         In 2013, Doe 5 performed approximately 2, 000 abortions at Delta. He has performed abortions up to 18 weeks' gestation but will not go beyond that point. By week 18, the baby is formed to a certain degree that it is beyond what he "feel[s] comfortable looking at and dealing with." In a typical week, between both clinics, he performs "between 40 and 60 of the surgical abortions and 20 to 30 of the medical . . . abortions." Between the clinics, he believes he performs about 6 second-trimester abortions per week. No patient has required a direct hospital transfer.

         Doe 5 has not secured qualifying privileges in Baton Rouge. He has applied to three hospitals: Woman's Hospital, Baton Rouge General Medical Center, and Lane Regional Medical Center.[28] He has not heard back from the latter two but did receive a positive response from Woman's Hospital.

         Woman's Hospital indicated that it would grant privileges to Doe 5 once he identified a doctor willing to cover his service when he is unavailable. In fact, Doe 5 explained that Woman's Hospital cannot deny him privileges once he does that because, "from what [he is] told, [he] meet[s] all the qualifications. And as long as [he] meet[s] those, they can't deny [his application]." Delta has a transfer agreement with a physician at Woman's Hospital, so Doe 5 asked that doctor whether he would be his covering doctor. That doctor refused because he did not want his information or relationship with the clinic to become public. Doe 5 does not appear to have reached out to anyone else, thus his application will remain pending until he takes further action.

         Doe 5 has not followed up with the other two hospitals on the status of his applications. He says he is waiting for a complete denial from Woman's Hospital before doing so. But, as explained, Woman's Hospital marked his application as pending until he finds someone to serve as a covering physician. He has contrived a situation in which it is impossible for him to obtain privileges. Woman's Hospital will not grant or deny privileges until he takes action to find a covering physician-something solely within his control. Yet, he refuses to follow up with other hospitals until Woman's Hospital takes action, something it cannot do until after Doe 5 provides further information.

         4. The Hope Clinic

         Hope opened in 1980 and is located in Shreveport. It provides surgical and medication abortions through 16 weeks[29]; it performs about 3, 000 abortions per year. In the past 20 years, 4 patients at Hope required hospitaliza-tion, with 2 of those occurring in the past 5 years. The clinic offers abortions 3 days a week. On busy days, it provides up to 30 terminations, but its administrator, Kathaleen Pittman, testified that it could provide up to 60, though she thought that would be "quite a bit."

         At the time of trial, Hope employed two doctors, Doe 1 and Doe 3, to perform abortions.[30] Following the closures of Causeway and Bossier (which occurred after the trial concluded), Hope also employs Doe 2. Because Doe 2 began working at Hope post-trial, all estimates in the record for Hope encompass only Doe 1 and Doe 3.

         Doe 3 had admitting privileges before the enactment of Act 620 and remains Hope's only abortion doctor who has privileges. There are 4 qualifying hospitals within 30 miles of Hope.

         a. Doe 1

         Doe 1 is not an OB/GYN but, instead, is board certified in Family Medicine and Addiction Medicine.[31] He has worked at Hope as a counseling physician since 2006 but began providing abortions only in 2008. He has never had a family-medicine practice. He is at Hope 3 days a week and provides about 71% of Hope's abortions. In a given month, Doe 1 generally performs 250-300 abortions. He performs medication abortions up to 8 weeks and surgical abortions up to 13 weeks. Between 2009 and 2014, he has had only one woman require hospitalization.

         Doe 1 applied to three of the four qualifying hospitals: WKBC, Christus Health, and Minden. He originally applied to WKBC to receive privileges via their Addiction Department, as he maintains a private practice in addiction medicine. WKBC could not grant him privileges in that field because its bylaws require "successfully complet[ing] a residency training program . . . in the specialty in which" privileges are sought. Doe 1 did not complete a residency in addiction medicine because no such residency program existed when he graduated medical school.

         Doe 1 then submitted a new application requesting privileges in Family Medicine. WKBC requested that he "submit documentation of hospital admissions and management of patients 18 years of age or older for the past 12 months." It also requested him to explain further the types of complications he expects to treat at WKBC. He responded with a list of all patients he treated when working at a hospital from July 2008 to May 2009. He indicated that he had not had to admit any patient for abortion-related complications in the preceding twelve months, though he has referred women to other doctors in a few situations. WKBC has not responded to that update.

         Doe 1 corresponded with Christus Health at length. Christus requested additional information, and Doe 1 provided almost all such information. Chris-tus requested Doe 1 come in to receive an ID badge to complete the application, but when he tried to do so, he was told that he could not receive the badge because he was not applying for the right privileges. He then received a letter saying his application remained incomplete for lack of a badge. That letter also said his application had been pending for 120 days, and applications pending for longer than 90 days were deemed withdrawn. Doe 1 admitted he waited until the very end of the 90-day period to try for the badge. He claims he was later told over the phone that he qualified only for a caregiver position, which would not include admitting privileges. That is not supported by documentation.

         Minden Hospital informed Doe 1 that it had no "need for a satellite primary care physician." The one hospital to which he did not apply, University Health, extends privileges by invitation only. He spoke to the chair of the Family Medicine Department, and, although the chair indicated an invitation would be forthcoming, Doe 1 was later told that there was "resistance" to extending him an invitation.

         b. Doe 2

         Doe 2 provided abortions at Hope for a number of years before moving to the Bossier and Causeway clinics. Once those clinics closed, Doe 2 returned to Hope. He currently provides abortions at Hope when Doe 1 or Doe 3 is absent.

         c. Doe 3

         Doe 3 is a board-certified OB/GYN who has been performing abortions since 1981.[32] He is the Chief Medical Officer at Hope. Of note, he has trained other doctors to provide abortions. Three of those are not OB/GYNs. One is a radiologist, another an ophthalmologist. The third, Doe 1, specialized in general family medicine. Doe 3 hired all three and was the only one to evaluate their credentials. He admits he neither performed background checks nor inquired into their previous training.

         Doe 3 performs about 29% of the abortions at Hope. He provides both surgical and medication abortions two days a week. On average he sees 20-30 patients a week but has seen up to 64. If everything goes well, he can perform "about six procedures in one hour." Doe 3 says he cannot not devote any more time to Hope.

         In the past twenty years, Doe 3 has had three patients require hospitali-zation, and he knows of a fourth from Doe 1. One woman had a perforated uterus, and Doe 3 accompanied her to the hospital and performed the necessary procedures. Another woman had heavy bleeding. The third had placenta accrete, "a very dangerous situation because you cannot get the bleeding to stop." He implied that he also admitted her and performed her procedures. The fourth woman, Doe 1's patient, had a perforated uterus. Doe 3, who was on call at the hospital, admitted her and performed her procedures.

         Doe 3 is active staff, with admitting privileges at WKBC and Christus Schumpert Hospital. He maintains those privileges on account of his private OB/GYN practice. In his declaration, Doe 3 stated that he will cease performing abortions "if he is the only provider in Louisiana with admitting privileges." Curiously, after Doe 5 obtained qualifying privileges in New Orleans-such that Doe 3 would no longer be at risk of being "the only provider in Louisiana"-Doe 3 testified that he does not "believe [he] will continue" if he is "the last physician providing abortions in Northern Louisiana" (emphasis added).

         5. Women's Health

         Women's Health, in New Orleans, began providing abortions in 2001. It performs abortions through the seventeenth week of pregnancy, [33] and it offers both medication and surgical abortions. Between 2009 and mid-2014, about 7, 400 abortions were performed there, with 2, 300 in 2013 alone.[34] Of those patients, 2 required direct hospital transfer. Women's employs 2 abortion doctors, Doe 5 and Doe 6, neither of whom had admitting privileges at the time of Act 620's enactment. Doe 5 has since secured qualifying privileges at Touro Infirmary. There are 9 qualifying hospitals within 30 miles of Women's.

         a. Doe 5

         Doe 5 began working at Women's in 2012. He works two days a week unless it is busy, in which case he may come in extra days. In 2013, Doe 5 performed approximately 40% of the abortions provided by Women's, all of which were surgical procedures. As noted previously, Doe 5 has secured qualifying privileges at Touro, which is within thirty miles of Women's.[35]

         b. Doe 6

         Doe 6 is a board-certified OB/GYN who has been performing abortions since 2002.[36] He began working at Women's and Delta in 2002 and has been the medical director of both since 2008. In 2013, he provided about 60% of the abortions occurring at Women's, which represents the percentage of medication abortions performed there. In that year, Doe 6 provided approximately 1, 300 medication abortions at Women's. In his ten years at these clinics, he has had two patients require direct hospital transfer.

         Doe 6 has not secured privileges. He applied to only one hospital, East Jefferson General Hospital ("EJGH"), and has not received a response. He inquired at Tulane but claims he "was told that [he] should not bother to apply because they would not grant privileges to [him] because [he has] not had hospital admitting privileges since August 2005."[37]

         II.

         On the above facts, the district court found that all doctors had put forth a good-faith effort to obtain privileges and that Doe 5 would be the sole remaining abortion provider in Louisiana were Act 620 to go into effect.[38] Because it concluded that that would substantially burden a large fraction of women, the court invalidated the law.

         We review the district court's legal conclusions de novo and its factual findings for clear error.[39] A finding is "'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."[40] "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently."[41]

         A.

         First we must resolve the appropriate framework for reviewing facial challenges to abortion statutes. As a general matter, "[f]acial challenges are disfavored." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). Louisiana says we should reverse because the district court used the wrong framework for evaluating a facial challenge and that we instead should follow United States v. Salerno, 481 U.S. 739, 745 (1987), under which plaintiffs "must establish that no set of circumstances exists under which the [law] would be valid."

         June Medical urges, to the contrary, that WWH foreclosed using the Salerno framework in the abortion context. In WWH, 136 S.Ct. at 2313, 2318-20, the Court, reviewing an as-applied challenge, reversed and invalidated the law in its entirety, finding that a large fraction of women would be substantially burdened.

         Before WWH, this court viewed the standard for facial invalidation of abortion regulations as "uncertain."[42] In Lakey, we explained that a plurality in Casey, 505 U.S. at 895, had concluded that a regulation was facially invalid if, "in a large fraction of the cases in which it is relevant, it will operate as a substantial obstacle." Lakey 769 F.3d at 296 (quoting Casey, 505 U.S. at 895). Earlier decisions, however, had used the "no set of circumstances" standard. Id. (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1990)).

         In WWH, 136 S.Ct. at 2320, the Court eliminated the uncertainty and adopted the Casey plurality's large-fraction framework. As the Eighth Circuit explained, "For [facial] challenges to abortion regulations, however, the Supreme Court has fashioned a different standard under which the plaintiff can prevail by demonstrating that 'in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice.'"[43]

         Importantly, the Court in WWH clarified by limiting the "large fraction" to include only "those women for whom the provision is an actual rather than an irrelevant restriction." WWH, 136 S.Ct. at 2320 (cleaned up) (quotation omitted). "[C]ases in which [the provision at issue] is relevant" is a narrower category than "all women," "pregnant women," or even "women seeking abortions identified by the State." Id. (quotation omitted). For a law regulating only medication abortions, for example, the relevant denominator is not all women seeking any type of abortion, but only those potentially impacted (i.e., those seeking a medication abortion).[44] In WWH, the Court treated the denominator as all women seeking abortions, but only because the statute at issue, Texas's H.B. 2, encompassed all types of abortions.[45]

         Here, too, the relevant denominator to determine a "large fraction" is all women seeking abortions in Louisiana, as Act 620 applies to providers of both medication and surgical abortions. Accordingly, to sustain the facial invalidation of Act 620, we would have to find that it substantially burdens a large fraction of all women seeking abortions in Louisiana.

         B.

         The parties present conflicting interpretations of the legal standard for finding an undue burden under WWH. June Medical frames WWH's analysis as a balancing test: "Where an abortion restriction's burdens outweigh its benefits, the burdens are 'undue' and unconstitutional." Louisiana counters that WWH did not alter the well-known standard in Casey.

         WWH's analysis is rooted in Casey, 505 U.S. at 877, which defined an "undue burden" as "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The Court in WWH explained that Casey "requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer."[46]

         In WWH, 136 S.Ct. at 2309, the Court relied on Casey's analyses of the spousal-notification and parental-notification provisions. In parentheticals, it describes the decisional process as "balancing." Id. Consequently, "[u]nneces-sary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Id. (quoting Casey, 505 U.S. at 878).

         There is no doubt that WWH imposes a balancing test, and Louisiana errs in denying that. It is not reasonable to read the language in WWH, quoted above, as announcing anything but a balancing test, especially given the Court's express use of the word "balancing" to describe Casey.[47]

         Hewing to WWH and Casey, we recognize and apply a balancing test. Louisiana, however, is correct that it is not a "pure" balancing test under which any burden, no matter how slight, invalidates the law. Instead, the burden must still be substantial, as we will explain.

         Quoting Casey as cited above, the WWH Court began by emphasizing that to fail constitutional scrutiny, a law must place "a substantial obstacle in the path of a woman seeking an abortion."[48] Casey expressly allows for the possibility that not every burden creates a "substantial obstacle."[49] Thus, even regulations with a minimal benefit are unconstitutional only where they present a substantial obstacle to abortion.[50]

         The proper reading of WWH is a combination of the views offered by June Medical and Louisiana: A minimal burden even on a large fraction of women does not undermine the right to abortion. To conclude otherwise would neuter Casey, and any reasonable reading of WWH shows that the Court only reinforced what it had said in Casey. Thus, we must weigh the benefits and burdens of Act 620 to determine whether it places a substantial obstacle in the path of a large fraction of women seeking abortions in Louisiana.

         C.

         We are of course bound by WWH's holdings, announced in a case with a substantially similar statute but greatly dissimilar facts and geography. We begin by summarizing the Court's close, fact-bound balancing analysis of the benefits and burdens in WWH―an analysis that led the Court to conclude that Texas's admitting-privileges requirement was unduly burdensome.

         1.

         The Court began by examining the benefits the admitting-privileges requirement might provide. It noted that the purpose of Texas's law was to "ensure that women have easy access to a hospital should complications arise during an abortion procedure." WWH, 136 S.Ct. at 2311. The evidence the court examined to determine whether the law served its stated purpose included expert testimony and studies about abortions in the United States generally. Id. The Court explained that there was "nothing in Texas' record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas' legitimate interest in protecting women's health." Id. The Court specifically noted that Texas could not point to "a single instance in which the new requirement would have helped even one woman obtain better treatment." Id.

         Further, the Court found that the privileges had no relationship to a doctor's ability. Instead, the privileges provision looked to discretionary factors such as clinical data requirements and residency requirements. One abortion doctor who had practiced for 38 years was unable to obtain privileges at any of the 7 hospitals within the required 30-mile radius of the clinic. Id. at 2312- 13. Therefore, "[t]he admitting-privileges requirement does not serve any relevant credentialing function." Id. at 2313.

         2.

         WWH identified four burdens imposed by the admitting-privileges requirement. Primarily, it caused the closure of 80% of Texas's abortion clinics. Only 7 or 8 of the 40 remained. The Court looked to the timing of the closures as evidence of causation. When H.B. 2 began to be enforced, the number of clinics dropped to half, from 40 to 20. The day the requirement took effect, 11 more clinics closed. Id. at 2312.

         Part of the reason for the closures was the difficulty of obtaining privileges. Many Texas hospitals conditioned admitting privileges on having a minimum number of patient admissions per year. Id. That created an almost-universal requirement that physicians with privileges maintain minimum annual admissions, constituting a per se bar to admission for most abortion doctors. The president of a Texas hospital testified that no doctor could get privileges near El Paso because not a single patient seeking an abortion had required transfer to a hospital in the past ten years. Thus, "doctors would be unable to maintain admitting privileges or obtain those privileges for the future." Id.

         Closures in Texas caused the third burden: increased driving distances. After the closures, the number of women living more than 150 miles from a clinic rose from 86, 000 to 400, 000, an increase of 350%. The number of women living more than 200 miles from a clinic increased from 10, 000 to 290, 000, an increase of 2, 800%. Id. at 2302, 2313. The Court "recognize[d] that increased driving distances do not always constitute an 'undue burden, '" id. at 2313, but stacking that burden on top of the others, "when viewed in light of the virtual absence of any health benefit," supported the finding of an undue burden. Id.

         The final burden was decreased capacity-"fewer doctors, longer waiting times, and increased crowding." Id.[51] The Court used "common sense" to conclude that the remaining clinics could not expand their capacity fivefold to meet the demand for abortions. Id. at 2317. The remaining clinics would need to expand from providing 14, 000 abortions per year to providing 60, 000-72, 000 per year. Id. The Court found that to be unrealistic because of the capacity currently carried by existing clinics and the lack of evidence that expansion was feasible. Id. at 2317-18.

         III.

         Mirroring the fact-intensive review that the Supreme Court performed in WWH, we do the same in-depth analysis of the instant record, weighing both the benefits and the burdens of Act 620. Unlike Texas, Louisiana presents some evidence of a minimal benefit. And, unlike Texas, Louisiana presents far more detailed evidence of Act 620's impact on access to abortion. In light of the more developed record presented to the district court and to us, the district court―albeit with the best of intentions and after diligent effort―clearly and reversibly erred. In contrast to Texas's H.B. 2, Louisiana's Act 620 does not impose a substantial burden on a large fraction of women, so the facial challenge fails.[52]

         A.

         The legislative history of Act 620 plainly evidences an intent to promote women's health. Specifically, the Act seeks to accomplish that goal by ensuring a higher level of physician competence and by requiring continuity of care.

         Texas presented no evidence that the credentialing function performed by hospitals differed from the credentialing performed by clinics. The record for Louisiana contains testimony from abortion providers themselves, explaining that the hospitals perform more rigorous and intense background checks than do the clinics. The record shows that clinics, beyond ensuring that the provider has a current medical license, do not appear to undertake any review of a provider's competency. The clinics, unlike hospitals, do not even appear to perform criminal background checks.[53]

         Finally, Louisiana explains that the Act brings the requirements regarding outpatient abortion clinics into conformity with the preexisting requirement that physicians at ambulatory surgical centers ("ASCs") must have privileges at a hospital within the community. 48 La. Admin. Code § 4535(E)(1). Procedures performed at ASCs include upper and lower GI endo-scopies, injections into the spinal cord, and orthopedic procedures.

         Outpatient procedures such as dental surgeries and some D&C miscarriage-management procedures do not require the same admitting privileges. Those are governed by Title 46 of the regulatory code, whereas outpatient abortion facilities and ASCs are under Title 48. Louisiana's expert, who was involved in the drafting of Act 620, testified that the differential treatment was because of that grouping and did not single out abortion providers from other outpatient surgery centers. Thus, Louisiana was not attempting to target or single out abortion facilities.

         In fact, it was just the opposite-the purpose of the Act was to bring them "into the same set of standards that apply to physicians providing similar types of services in [ASCs]."[54] The benefit from conformity was not presented in WWH, [55] nor were the reasons behind the conformity-continuity of care, qualifications, communication, and preventing abandonment of patients-directly addressed.[56] Accordingly, unlike in WWH, the record here indicates that the admitting-privileges requirement performs a real, and previously unad-dressed, credentialing function that promotes the wellbeing of women seeking abortion.

         Still, the benefits conferred by Act 620 are not huge. Though we credit Louisiana's more robust record on the benefits side of the ledger, the district court did not clearly err in finding that Act 620 provides minimal benefits, given the current standard of care in highly specialized hospital settings. See June Med. Servs., 250 F.Supp.3d at 86.

         B.

         In WWH, the Court identified four obstacles erected by Texas's requirement of admitting privileges: closure of facilities, difficulty in obtaining privileges, driving distances, and clinic capacities. The Court decided not that any burden individually was sufficient but that the four dominoed to constitute a substantial burden.

         The near impossibility of obtaining privileges was the first domino to fall. Had that difficulty not loomed, there would have been no facility closures, no increased driving distances, and no issues regarding clinic capacities. Given the high minimum admissions requirement at most Texas hospitals, that first burden was unavoidable.

         Originally, Texas had 40 facilities and numerous abortion doctors. Because the doctors could not obtain privileges, the number of clinics fell from 40 to only 7 or 8. Those closures undoubtedly burdened almost all women seeking abortions in Texas as a result of capacity issues and increased driving distances.

         Thus, everything turns on whether the privileges requirement actually would prevent doctors from practicing in Louisiana. If that domino does not fall, no other burdens result. So we review the difficulty facing the abortion providers and trace them back to the patients to determine whether Act 620 substantially burdens a large fraction of women seeking abortions.

         The paucity of abortion facilities and abortion providers in Louisiana allows for a more nuanced analysis of the causal connection between Act 620 and its burden on women than was possible in WWH. For one, we can examine each abortion doctor's efforts to comply with the requirements of Act 620. We also can look to the specific by-laws of the hospitals to which each applied. This more intricate analysis yields a richer picture of the statute's true impact, the sort of obstacle it imposed. And this methodology allows us to scrutinize more closely whether June Medical has met its burden.

         We conclude that it has not. To the contrary, it has failed to establish a causal connection between the regulation and its burden―namely, doctors' inability to obtain admitting privileges. Specifically, there is insufficient evidence to conclude that, had the doctors put forth a good-faith effort to comply with Act 620, they would have been unable to obtain privileges. Instead, as discussed below, the vast majority largely sat on their hands, assuming that they would not qualify. Their inaction severs the chain of causation.

         The district court inquired whether the doctors had put forth a good-faith effort, without which June Medical cannot establish the requisite causation between Act 620 and a doctor's inability to obtain privileges. And, as WWH emphasized, 136 S.Ct. at 2313, it is June Medical's burden to put forth affirmative evidence of causation. Were we not to require such causation, the independent choice of a single physician could determine the constitutionality of a law. Using this methodology, we conclude, given the entire weight of the evidence, that the district court clearly erred in saying that all doctors had put forth a good-faith effort to obtain privileges.

         Unlike the litigants in WWH, who presented only generalities concerning admitting privileges, the parties here provide the bylaws for the relevant hospitals. The situation differs from the circumstances in WWH in that the majority of hospitals do not have a minimum number of required admissions that a doctor must have to maintain privileges. Instead, most hospitals have a competency requirement. Competency is evaluated either by requesting the doctor to provide information about recent admissions at any other hospital or by having a provisional admittance period during which the hospital can personally observe and evaluate him. Although the grant of privileges ...


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