Sext Circuit Establishes New Threshold for Undue Burden in Abortion Regulations

Sext Circuit Establishes New Threshold for Undue Burden in Abortion Regulations

Introduction

In the landmark case Emw Women's Surgical Center, P.S.C. v. Governor of Kentucky, the United States Court of Appeals for the Sixth Circuit addressed the constitutionality of Kentucky's stringent abortion regulations. The plaintiffs, comprising EMW Women's Surgical Center, Dr. Ernest Marshall, and Planned Parenthood of Indiana and Kentucky, challenged the state's requirement for abortion facilities to secure transfer agreements with local hospitals and transport agreements with local ambulance services. This case scrutinizes whether these regulations pose an undue burden on the constitutional right to access abortion, thereby establishing a new precedent in the application of the undue burden test post the Supreme Court's decision in June Medical Services L.L.C. v. Russo.

Summary of the Judgment

The Sixth Circuit, in a decision delivered by Circuit Judge Larsen, partially affirmed and partially reversed the district court's ruling. The district court had previously enjoined Kentucky's transfer and transport agreement requirements, deeming them an undue burden on abortion access. Kentucky appealed the permanent injunction and contested the imposition of monetary sanctions for failing to produce a designee for deposition. While the court upheld the monetary sanctions, it found that Kentucky's arguments about the potential use of waivers to mitigate the burden were insufficient. Consequently, the Sixth Circuit reversed the permanent injunction and remanded the case for further proceedings, concluding that the district court had erred in its determination that the state would be left without a licensed abortion facility.

Analysis

Precedents Cited

The judgment extensively references pivotal Supreme Court cases that define the framework for evaluating abortion regulations:

  • Planned Parenthood v. Casey (1992): Established the undue burden standard, asserting that abortion regulations are unconstitutional if they place a substantial obstacle in the path of a woman seeking an abortion before fetal viability.
  • Whole Woman's Health v. Hellerstedt (2016): Clarified the undue burden test by emphasizing the need to weigh the burdens of the law against the benefits it confers.
  • June Medical Services L.L.C. v. Russo (2020): Reiterated and refined the undue burden standard, focusing on whether regulations are reasonably related to legitimate state interests and whether they impose a substantial obstacle to abortion access.
  • MARKS v. UNITED STATES (1997): Provided guidance on how appellate courts should handle fractured Supreme Court decisions by following the narrowest concurring opinion.
  • AGOSTINI v. FELTON (1997): Emphasized the principle of stare decisis, urging lower courts not to overrule Supreme Court precedents.

Legal Reasoning

The Sixth Circuit's reasoning pivots on interpreting Chief Justice Roberts’ concurrence in June Medical Services as the controlling opinion under the precedent set by MARKS v. UNITED STATES. This interpretation dictates that when the Supreme Court's decision lacks a majority, lower courts should adhere to the narrowest concurring opinion. In this case, Chief Justice Roberts emphasized that laws regulating abortion must be reasonably related to legitimate state interests and must not impose a substantial obstacle to access.

Applying this framework, the Sixth Circuit evaluated whether Kentucky's transfer and transport agreement requirements are:

  • Reasonably related to a legitimate state interest (e.g., ensuring patient safety).
  • Imposing a substantial obstacle to abortion access that constitutes an undue burden.

The court found that Kentucky failed to demonstrate that without these agreements, abortion facilities would cease to operate, thereby creating a substantial obstacle. The possibility of obtaining a ninety-day waiver was insufficient to negate the finding of an undue burden, as Plaintiffs did not convincingly show that the waiver provision would effectively prevent the closure of abortion services in the state.

Impact

This judgment has significant implications for abortion regulations across the United States. By upholding a stricter interpretation of the undue burden test and emphasizing the necessity for clear evidence of a substantial obstacle, the Sixth Circuit sets a precedent that states must provide robust justifications for abortion restrictions. This may lead to more stringent scrutiny of similar laws and potentially limit states' ability to impose burdensome regulations on abortion access.

Complex Concepts Simplified

Undue Burden Test

The undue burden test evaluates whether a law or regulation imposes significant obstacles that prevent individuals from exercising their constitutional rights. In the context of abortion, a regulation is unconstitutional if it places a substantial barrier in the process of obtaining an abortion before fetal viability.

Reasonably Related to Legitimate State Interest

For a regulation to be considered constitutional, it must be reasonably related to a legitimate state interest. This means that the law should have a rational basis for achieving a genuine objective, such as ensuring patient safety during medical procedures like abortions.

Substantial Obstacle

A substantial obstacle refers to significant hurdles that hinder access to abortion services. This could manifest as the closure of abortion facilities or increased logistical challenges that make obtaining an abortion more difficult.

Conclusion

The Sixth Circuit's decision in EMW Women's Surgical Center, P.S.C. v. Governor of Kentucky reinforces the stringent application of the undue burden test post June Medical Services. By requiring clear evidence that abortion regulations impose substantial obstacles to access, the court ensures that states cannot easily legislate away constitutional rights without robust justification. This ruling serves as a crucial check on state-imposed abortion restrictions, safeguarding women's rights and access to reproductive healthcare.

Case Details

Year: 2020
Court: UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Judge(s)

LARSEN, Circuit Judge.

Attorney(S)

COUNSEL ARGUED: S. Chad Meredith, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants. Easha Anand, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees Women's Surgical Center, P.S.C. and Ernest Marshall, M.D. ON BRIEF: S. Chad Meredith, M. Stephen Pitt, Matthew F. Kuhn, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants. Easha Anand, Karen G. Johnson-McKewan, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco, California, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Michael P. Abate, James E. McGhee, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky, Lisa T. Simpson, Jennifer M. Keighley, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, Melanie L. Bostwick, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., Robert L. Uriarte, ORRICK, HERRINGTON & SUTCLIFFE LLP, Menlo Park, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri, Elizabeth Watson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Donald L. Cox, LYNCH, COX, GILMAN & GOODMAN, P.S.C., Louisville, Kentucky, Heather L. Gatnarek, ACLU OF KENTUCKY, Louisville, Kentucky, Amy D. Cubbage, ACKERSON & YANN, PLLC, Louisville, Kentucky, for Appellees Women's Surgical Center, P.S.C. and Ernest Marshall, M.D. Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana, Heidi Parry Stern, OFFICE OF THE NEVADA ATTORNEY GENERAL, Carson City, Nevada, La Tasha Buckner, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici Curiae.

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