Symposium: June Medical Services – An opportunity to reject invasive appellate review
Many articles concerning June Medical Services v. Gee attempt to read the tea leaves regarding the future of abortion rights in light of the newer members of the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh. And rightfully so, given the effect that the court’s composition can have on American life. But I will leave the tasseography to others, and instead try to shed light on one of the elements of appellate decision-making that may well control the outcome of this case: the importance of standards of review.
Standards of review are not merely boilerplate recitations sandwiched between the statement of facts and the application of the law. Rather, they facilitate the orderly functioning of our court system. And evasion of those bedrock standards will result in real shifts in the substantive law—sometimes marginal but sometimes with drastic consequences. June Medical Services illustrates that danger.
Deferential standards of review are essential to our appellate court structure.
The tripartite structure of Article III courts sets the rough contours of the division of judicial duties. District courts perform their “major role” of receiving and assessing evidence, as the Supreme Court put it in the 1985 case Anderson v. City of Bessemer City, N.C.; the courts of appeals review legal issues anew; and the Supreme Court oversees and weaves the fabric of the law as a whole. These basic distinctions, among others, underscore the importance and independence of each level of the court system.
Standards of review reinforce this structure and often counsel judicial restraint. The clear error standard of review applies to factual findings and requires that reviewing courts defer to their trial court colleagues absent a definite and firm conviction that a mistake was made. Additionally, per Section 52(a)(6) of the Federal Rules of Civil Procedure, reviewing courts grant special solicitude to a trial court’s judgment of credibility. Just recently, in the 2017 case Cooper v. Harris, the Supreme Court reaffirmed the “very premise of clear error review”—that there will often be more than one plausible view of the evidence. The plausible view of a district court predominates because district courts customarily make factual determinations, and the Supreme Court emphasized in Anderson that “with experience in fulfilling that role comes expertise.” Permitting courts of appeals to sidestep the district courts’ factual findings, according to a comment in the 1985 amendment to the Rules of Civil Procedure, “would tend to undermine the legitimacy of the district courts in the eyes of litigants.”
The appeals court undermined the district court’s factual findings.
The U.S. Court of Appeals for the 5th Circuit invasively reviewed the district court’s well-supported factual findings in this case and, as a consequence, determined that the law required a different result. But a mere nod toward deference does not protect our balanced court structure. Instead, the failure to honor deferential standards of review renders the district courts little more than receptacles of evidence to be evaluated anew on appeal.
In June Medical Services, the Supreme Court will review the 5th Circuit’s decision that upheld a so-called admitting-privileges law that is functionally identical to a Texas law found unconstitutional in Whole Woman’s Health v. Hellerstedt. Both require that doctors who perform abortions must have active admitting privileges at a hospital within 30 miles of the abortion facility. Whole Woman’s Health struck down the Texas law as an undue burden on a woman’s right to an abortion, finding it did not advance the protection of women’s health and obstructed the path for women to exercise their right.
Although it was considering what is essentially the same law struck down in Whole Woman’s Health, the 5th Circuit came to a divergent conclusion and upheld the Louisiana law. It did so in part by disregarding the deferential clear error standard of review on its way to reversing the district court’s decision. The appeals court rebalanced the entire case by opening the record to aggressive second-guessing, misconstruing the district court’s factual finding about the value of the admitting-privileges requirement, and overruling findings of credibility and good faith. Three specific errors are worth highlighting.
First, the 5th Circuit changed the scope of the proper analysis. It announced that it would perform an “in-depth analysis of the instant record” so as to “[m]irror[ ] the fact-intensive review that the Supreme Court performed in [Whole Woman’s Health].” Surely, Whole Woman’s Health involved ample review of the factual record. What that decision did not do, however, was flyspeck and second-guess the district court’s factual findings. Rather, it assessed the facts in the record, including those facts found by the district court, and applied the applicable law. The 5th Circuit, on the other hand, transformed this fact-intensive review into a license to recalibrate the record.
Second, the 5th Circuit misread the district court’s finding that the law does not benefit or promote women’s health. It supposedly affirmed this finding, yet stated that the admitting-privileges requirement “performs a real, and previously unaddressed, credentialing function that promotes the wellbeing of women seeking abortion.” This affirmance is curious in light of the district court’s finding that such a requirement “provides no benefits to women and is an inapt remedy for a problem that does not exist.” This is a distinct maneuver, in which the finding being considered is ostensibly “affirmed” even though any reader would immediately recognize the glaring dissonance between the 5th Circuit’s and the district court’s opinions. This mischaracterization preemptively weights the scale for undue-burden balancing.
Third, the 5th Circuit disregarded the district court’s integral factual findings that the Louisiana abortion doctors made good-faith efforts to comply with the admitting-privileges requirement. More than 100 paragraphs of the district court’s opinion assessed whether Louisiana’s abortion doctors meaningfully attempted to earn admitting privileges. This piece is important because, absent good-faith efforts, one could conclude that the doctors’ laziness, not the law, caused the shutdown of abortion facilities in Louisiana. But the district court found that the doctors were credible, noted their efforts to obtain privileges at hospitals within the statutorily required 30-mile radius of their clinics, and found that their attempts were made in good faith, despite substantial obstacles unrelated to their clinical competence.
The 5th Circuit substituted its own view of the facts. Doe 5, one doctor in the record, applied for admitting privileges at three qualifying hospitals in the Baton Rouge area. None have granted him those privileges—though his applications remained pending for more than a year—because he could not find another local physician who could cover for him when he was out of town. The 5th Circuit criticized the doctor for not following up with the hospitals, citing a “lackluster approach” to complying with the requirement.
The downstream consequences of this invasive review should be obvious. By reimagining what should be a settled record, the 5th Circuit effectively created its own factual input, and this sort of judicial alchemy produced a radically different interpretation. Because doctors ostensibly failed to make sufficient efforts to meet the admitting-privileges requirement, the court of appeals concluded, “no clinics will likely be forced to close on account of the Act.” To follow the cascade of assumptions resulting from this single twist of fact, the supposed lack of closures also means no further strain on those facilities, and no additional transportation burdens or wait times for women. On this innovated set of facts, the 5th Circuit’s legal conclusions appear more reasonable.
Sanctioning the 5th Circuit’s disregard of the clear error standard threatens the accessibility of abortion services in Louisiana, but it also inverts the appellate process and in so doing jeopardizes the proper functioning of the court system. An affirmance in this case would portend a poor outcome—not only for a woman’s access to legal abortion services (particularly in Louisiana), but also for the public’s confidence in our Article III courts.