Analysis: A split on abortion at the 5th Circuit
NEW ORLEANS (AP) — They are three judges on a conservative appeals court, nominated by conservative Republican presidents — two by Ronald Reagan and one by George W. Bush.
But don’t fall into the trap of thinking that means they are in accord on all matters. One of them took the other two to task for their recent ruling on a Louisiana abortion clinic law. “It is apparent that when abortion comes on stage it shadows the role of settled judicial rules,” Reagan nominee Patrick Higginbotham said in his recent dissent attached to the 5th U.S. Circuit Court of Appeals ruling.
The law requires that any doctor who performs an abortion have admitting privileges at a hospital within 30 miles of where the abortion is done. Backers of the law said it ensures the health of women. Opponents cast it as a ruse by anti-abortion forces that could lead to clinic shutdowns.
U.S. District Judge John deGravelles of Baton Rouge blocked the law in 2017. His ruling cited U.S. Supreme Court ruling knocking down a similar rule in Texas, and his own analysis of the facts.
The Louisiana case record “does not contain any evidence that complications from abortion were being treated improperly, nor any evidence that any negative outcomes could have been avoided if the abortion provider had admitting privileges at a local hospital,” deGravelles wrote. He also said the law “would increase the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.”
Fifth Circuit Judge Jerry Smith, another Reagan nominee, in an opinion joined by Bush-nominee Edith Brown Clement, said deGravelles — “albeit with the best of intentions and after diligent effort” — got it wrong.
While they didn’t legal fault with his finding that the benefits of the law were minimal, they said the burden such a law imposed on seekers of legal abortion in Louisiana was not substantial, unlike in Texas, where all but eight of 40 clinics closed.
Smith’s 45-page opinion included an analysis of claims that the law would force the shutdown of one or two of the three clinics operating in the state. “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,” Smith wrote. “In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana.”
Smith’s opinion disputes the conclusions of the district judge regarding the effect the law would have on abortion clinics and the doctors who work at them, repeatedly calling the findings erroneous.
In his dissent, covering 30 pages, Higginbotham disagrees. He criticizes Smith and Clement for “essentially conducting a second trial of the facts” and later saying “it is apparent that the majority here swiftly retries the case failing to credit findings that were not ‘clearly erroneous.’”
What next? As evidenced in the ruling and dissent, that is in dispute.
The law’s supporters have always held that the law simply enhances health and safety. Attorney General Jeff Landry said the law was based on “common sense.”
If the ruling stands, “many doctors in Louisiana will no longer be able to provide abortion services, forcing women to forfeit their constitutional rights to access safe and legal abortion,” Nancy Northrup, president of the Center for Reproductive Rights, said in a news release.
The law’s opponents will likely seek a rehearing before the full court. And it’s possible the Supreme Court might be asked to weigh in on the admitting privileges question again. Or, perhaps the question will become moot in Louisiana, which is poised to make abortion illegal if the replacement for retired Justice Anthony Kennedy joins four justices in allowing states to do so by reversing Roe v. Wade.
EDITORS NOTE: Kevin McGill is an Associated Press reporter in New Orleans.