Symposium: On a petition that does not exist

Kyle Hawkins is the solicitor general of Texas.

SCOTUSblog has asked me to assess whether the Supreme Court should grant a cert petition that does not exist.

That petition, should it ever come to be, would probably be styled June Medical Services, LLC v. Gee, though we can’t be 100 percent sure until we see it. It presumably would be about a Louisiana law that, operating within the confines of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, requires abortion providers to carry certain hospital admitting privileges. The U.S. Court of Appeals for the 5th Circuit faithfully applied Hellerstedt to uphold the law, recognizing a different regulatory structure, different impact and different evidentiary record. A few weeks ago, June Medical asked the Supreme Court to stay that decision pending the conclusion of any proceedings before the court; the court agreed to do so.

But June Medical did not file — and, indeed, still has not filed — a cert petition. Any such petition would be due in mid-April, unless the would-be petitioners get one or more extensions. Since it’s now early March, at least six weeks of litigating actual cases separate this symposium from the world’s knowing whether an abortion provider will pursue its quest to overturn its loss in the court of appeals — and how it will try to do so.

If June Medical takes the common tack of alleging a circuit split, its petition should fail. As far as I can tell, there’s no circuit split, perhaps because the decision below is entirely fact-bound. So how is the petition going to plead around those apparently fatal defects? I don’t know, and a symposium that predates June Medical’s (maybe eventual?) answer offers no real chance to find out.

But this symposium doesn’t just offer hot takes on … nothing. It’s much worse than that because it stacks the deck against the would-be respondent. One of the tried-and-true bottom-side cert-stage strategies is to explain why there’s “nothing to see here.” This works all the time; the Supreme Court takes only important cases that turn on the law, not insignificant ones that turn on facts. So if you’re a respondent, your best move is to convince the court that the petition just doesn’t matter. That’s why we never see cert-stage bottom-side amicus briefs, which would only serve to attract the exact attention the brief in opposition seeks to deflect.

It’s therefore puzzling why SCOTUSblog has decided that the nonexistent June Medical petition is so consequential that it merits a slew of articles on how the merits of the case should be decided before a petition is even filed. To host a symposium is to declare a case a Big Deal. Sorry, Louisiana — and good luck arguing that this case doesn’t matter when the one blog every law clerk reads has declared it so crucial that it merits its own pre-petition symposium.

The answer to the question of why hold a pre-petition symposium for this case can’t be because it’s the only abortion petition to (maybe at some point) reach the Supreme Court since Justice Brett Kavanaugh’s confirmation. Consider two actually filed petitions presenting questions about abortion. Box v. Planned Parenthood, No. 18-1019, presents this issue: “May a State, consistent with the Fourteenth Amendment, require an ultrasound as part of informed consent at least eighteen hours before an abortion?” That petition was filed last month; the BIO is due soon. The petition contains plenty of discussion of Hellerstedt. Or how about the other Box v. Planned Parenthood, No. 18-483? That one asks, in part, “[w]hether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.” Cert-stage briefing is complete with over a dozen amicus briefs submitted, making for a pretty interesting read. Why not host a pre-grant symposium on either of those cases?

If a June Medical petition ever materializes, Louisiana won’t have a hard time pointing out the many considerations that weigh against review. The court of appeals applied the substantial-obstacle test from Hellerstedt and Planned Parenthood of Southeastern Pennsylvania v. Casey to the specific facts in front of it, weighed the burdens and benefits of the law, and concluded that the plaintiffs had not met their burden of demonstrating facial invalidity. In doing so, the court undertook a detailed review of the efforts made by each abortion-performing physician in Louisiana to obtain admitting privileges, including the specific hospitals to which they applied and the status of each application. The court also evaluated the capacity of the physicians to perform additional abortions, breaking it down by the number of abortions per year, per week, per day, and even per hour.

The panel’s decision turned on those facts. It’s unclear why the Supreme Court would intervene for the purpose of revisiting that fact-bound application of settled law.

If the court were to grant whatever petition might emerge, this looks like a straightforward case for affirmance. The record indicates that the physicians who perform abortions in Louisiana did not make good-faith efforts to obtain admitting privileges before filing a lawsuit claiming that they could not obtain privileges. That implicates a simple question of causation, not a re-evaluation of abortion jurisprudence. If the abortion providers did not make good-faith attempts to obtain admitting privileges, then any burden placed on women is the result of the abortion providers’ lack of effort, not Louisiana’s admitting-privileges law. As it stands, the panel determined that only a single physician made a good-faith attempt to obtain privileges and failed, but that other providers could absorb the demand.

And in reaching that conclusion, the court of appeals cited Hellerstedt repeatedly and applied it faithfully. The court took pains to explain why the facts in this case required a different conclusion than the facts in Hellerstedt. That’s not the making of a cert-worthy case — and it’s certainly not a constitutional crisis worthy of a nationwide debate.

But I’m just spitballing. No petition means no questions presented, which means we’re not sure what issues and arguments the hypothetical future petitioners will tee up.

If a petition ever gets filed and granted, I’d welcome the chance to participate in a symposium debating the actual QPs the Supreme Court agreed to review based on the strength of the parties’ arguments. Until then, though, it appears we’re just creating sound and fury about an abortion provider who surely appreciates all this interest in its nonexistent petition.

***

Cases linked to in this post:

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)