The State of Mississippi vs. 50 Years of Abortion Precedent: What June Medical Standard Should Courts Apply to Abortion Restrictions?

BACKGROUND

The constitutionality of abortion restrictions has long been debated by American courts. The Supreme Court first found a constitutional right to abortion in the 1973 case of Roe v. Wade (1973), holding that the Fourteenth Amendment’s right to privacy also applied to a pregnant person’s decision to access abortion services. According to the Court, this right to privacy in matters concerning abortion could not be overridden by the State. However, this right is not absolute, and the Court has repeatedly upheld various restrictions on abortion access in the nearly fifty years following the Roe decision.

These restrictions are typically justified by a State’s “legitimate interest” in protecting the health of pregnant people, as well as the potential life of the unborn fetus. The most prominent example of the Court upholding abortion restrictions came approximately twenty years after the Roe decision, in the 1992 case of Planned Parenthood v. Casey (1992). In Casey, the Court reaffirmed the constitutional right to abortion, while clarifying the extent to which states could regulate the procedure. According to the Casey Court, reasonable regulations restricting abortion access are generally constitutional, so long as the regulations can pass muster under the undue burden standard. For a regulation to be upheld under this standard, it must not place a substantial obstacle in the path of a person seeking an abortion before the fetus reaches the point of viability. In the Casey decision, this undue burden standard was used to strike down a regulation that required a woman to notify her husband before receiving an abortion, but was simultaneously used to uphold various other regulations, including a mandatory 24-hour waiting period and a requirement that a minor seeking an abortion receive parental consent (or receive court approval through a judicial bypass process). This undue burden standard has subsequently been used by courts at all levels of the judicial system to evaluate the constitutionality of abortion restrictions. 

ISSUE

The most recent ruling on abortion restrictions came in June 2020, when the Supreme Court issued its’ opinion in the case of June Medical Services, LLC v. Russo (2020). In June Medical, the Court overturned the Fifth Circuit’s ruling that a Texas law that required abortion providers to have hospital admitting privileges did not place an undue burden on people seeking abortions, holding instead that the law was a violation of prior Supreme Court precedent. However, the divided Court failed to agree on a single standard for lower courts to apply to future abortion restrictions. The plurality argued that a balancing test, similar to the one advanced in the Court’s 2016 holding in Whole Woman’s Health v. Hellerstedt (2016), should be applied to these restrictions, with the benefits of the laws being weighed against the potential burdens. Contrastingly, the Chief Justice, in his concurring opinion, advanced a standard that provided greater discretion to state legislatures. These contradicting standards have ultimately led to a single question: what June Medical standard should courts apply to state-level abortion restrictions?

THE SPLIT

The Circuit Courts of Appeal have split over what standard discussed in the June Medical decision controls. In particular, the Eighth and Fifth Circuits have reached opposite conclusions, with the Eighth Circuit siding with the Chief Justice’s standard and the Fifth Circuit siding with the plurality’s standard.

The Eighth Circuit

Shortly following the June Medical decision, the Eighth Circuit applied the standard discussed in Chief Justice Robert’s concurrence to vacate a lower court injunction against multiple state level abortion restrictions. In the case of Hopkins v. Jegley (2020), the Eighth Circuit held that the Chief Justice’s opinion, being necessary for the Court to have reached its 5-4 decision that the Texas admitting privileges law was unconstitutional, was controlling and therefore carried precedential weight. According to the Eighth Circuit, the Chief Justice’s standard – that like cases should be treated alike, and that discretion should be granted to state legislatures in areas involving “medical uncertainty” – controlled in the Hopkinscase. Under this standard, the Eighth Circuit held that the preliminary injunction against the Arkansas abortion laws should be vacated, and thus remanded the case to the lower court for reconsideration under the Chief Justice’s proposed standard of review.

The Fifth Circuit

Recently, the Fifth Circuit reached the opposite conclusion when it chose to not apply the Chief Justice’s standard and subsequently overturned a Texas law that required individuals seeking an abortion in the second trimester to undergo an additional medical procedure prior to the abortion procedure itself. In the case of Whole Woman’s Health v. Paxton (2020), the Fifth Circuit held that it was the standard discussed in the plurality’s opinion – that the benefits of a law restricting abortion should be weighed against the potential burdens that the law may place on the access to abortion – that controlled; not the Chief Justice’s standard.According to the Fifth Circuit, this standard was first adopted by the Supreme Court in the Hellerstedt decision, and the standard was not overturned by the recent June Medical decision. As such, the Fifth Circuit ruled in favor of the abortion clinic and overturned the Texas law.

LOOKING FORWARD

The future of this issue remains uncertain. On May 17, 2021, the Supreme Court granted certiorari in the case of Dobbs v. Jackson Women’s Health Organization for the upcoming October term. The Dobbs case is poised to present the Court with the exact question discussed in this split; what standard from the June Medical decision should be applied to state-level abortion restrictions? Given the recent high-profile additions of Justices Brett Kavanaugh and Amy Coney Barrett to the Court, as well as the subsequent shift in ideology toward a conservative-leaning majority, the potential outcome of the Dobbs case is currently unclear. An oral argument date has yet to be set.

For further reading, see: Undue Burdens in Texas by Jennifer S. Hendricks and In Abortion Litigation, It’s the Facts that Matter by Caitlin E. Borgmann.

DOES THE HEALTH AND HUMAN SERVICE’S RULE BANNING ABORTION REFERALS UNDER TITLE X VIOLATE THE ADMINISTRATIVE PROCEDURE ACT?

BACKGROUND

In 1970, Congress enacted Title X of the Public Health Service Act “to promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government[.]” Under the act, the Secretary of the Department of Health and Human Services (HHS) is “authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).” The Act specifically states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”

Over the past 50 years, HHS has interpreted this specific provision in different ways. In 1972, HHS interpreted this section as “not only as prohibiting the provision of abortion but also prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning.” 53 Fed. Reg. 2922-01, 2923. In 1981, HHS went a step further and included “nondirective” counseling upon request for information on abortions, foster care, and other options. 53 Fed. Reg. at 2923. The interpretation of this subsection has changed several times through different administrations. Under the Trump administration, in 2018, HHS promulgated a rule that “a title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.” The rule further states that a pregnant woman must be referred to a health care provider for prenatal care and a physician may not refer the patient for an abortion, even if that is the patient’s desire.

THE ISSUE

Under Title X of the Public Health Service Act, did the Department of Health and Human Services have authority to promulgate a Final Rule banning service providers who receive federal money from referring patients for abortions?

THE SPLIT

The Fourth and Ninth Circuits have interpreted the subsection regarding the provision prohibiting abortion as a means of family planning. The Fourth Circuit claims that HHS was arbitrary and capricious in its rulemaking thus violating the Administrative Procedure Act (APA), while the Ninth Circuit upheld the Final Rule.

The Fourth Circuit

The Mayor and City Council of Baltimore filed suit against Alex Azar II, Secretary of HHS, alleging that the Final Rule violated the APA. In Chevron v. Natural Resources Defense Council (1984), the Supreme Court established a two-step test to determine if an agency should be given deference in a rulemaking. The first step is to determine whether the statute under which the rule was promulgated is ambiguous. The second step is to determine if the agency acted in an arbitrary and capricious manner in promulgating the rule and if the agency interpreted the statute in a reasonable manner. The Fourth Circuit, en banc, in Mayor & City Council of Baltimore v. Azar (2020), held that the Final Rule was arbitrary and capricious because HHS “inadequately explained its decision ‘to disagree with comments by every major medical organization regarding the Final Rule’s contravention of medical ethics’ . . . and inadequately considered the ‘likely costs and benefits of the physical separation requirement.’” The court asserted that HHS failed to consider all of the nation’s major medical organizations concerns when promulgating the rule. Further, the court found that the agency was “arbitrary and capricious because ‘the administrative record reflects comments estimating the likely cost of the requirement far exceeds HHS’s estimate of $30,000.’” Moreover, the court determined that the rule is unlawful as it violates the “nondirective” counseling requirement in Title X programs because mandating prenatal care is a form of “directive” counseling. Lastly, the court held that the rule interfered with physician-patient communications.

The Ninth Circuit

Contrary to the Fourth Circuit’s holding, the Ninth Circuit upheld the Final Rule promulgated by HHS. In State of California v. Azar (2020), the court distinguished between counseling and referrals. The court held that providers “‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion’” thus, the “nondirective” counseling provision was not violated. Furthermore, the court asserted that the agency was reasonable in its interpretation of Title X and was not arbitrary and capricious in promulgating the rule. Under Chevron step two, the court deferred to the “agency’s expertise in identifying the appropriate course of action.”

LOOKING FORWARD

The Final Rule promulgated by HHS under the Trump administration is an attempt by the administration to limit a woman’s right to abortion. Title X mainly serves low-income families and people of color. According to Planned Parenthood, 21% of Title X recipients identify as African American or Black and nearly 32% identify as Latino. The Final Rule will most adversely impact these populations. In cases where there is a circuit split, the Supreme Court often becomes the deciding factor. The Supreme Court will be the final word in whether HHS’s rule was promulgated in a valid manner if they decide to hear the case. The Trump administration filed a petition for writ of certiorari to the Supreme Court in Azar v. Mayor & City Council of Baltimore, but the case has not yet been listed for conference. Only time will tell if the Supreme Court will hear this case. Additionally, with the new administration taking office, the case may be become mute if the rule is rescinded or is amended to allow abortion referrals.