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8th Circuit rules that Missouri can enforce protective abortion law

by | Sep 10, 2018

By Dave Andrusko

U.S. Circuit Court of Appeals Judge Bobby Shepherd

Back in May 2017, pro-life Missouri Attorney General Josh Hawley asked the 8th U.S. Circuit Court of Appeals to overturn a ruling by U.S. District Judge Howard F. Sachs that blocked state laws requiring abortionists to have admitting privileges at a hospital within 30 miles and abortion clinics to meet the requirements of ambulatory surgical centers.

Good news.

Earlier today Reuters’ Nate Raymond reported “The 8th U.S. Circuit Court of Appeals in St. Louis overturned a 2017 ruling that blocked enforcement of those laws.” The three judge panel “said it did not have enough information to determine how easily abortion clinics could obtain waivers from the licensing rules and whether those requirements posed an undue burden on clinics,” Raymond added. “U.S. Circuit Judge Bobby Shepherd, who wrote the opinion, said the lower-court judge also erred by not considering the state’s arguments about the benefits of the provision requiring doctors who perform abortions be affiliated with hospitals.”

Shepherd wrote

Invoking the Constitution to enjoin the laws of a state requires more than “slight implication and vague conjecture.” [A quote from a prior decision.] At a minimum, it requires adequate information and correct application of the relevant standard. Because we conclude that the preliminary injunction in this case was entered based on less than adequate information and an insufficient regard for the relevant standard, we vacate the preliminary injunction and remand.

Pro-abortionists immediately charged (as the Think Progress website put it) that the judges had “openly defied the Supreme Court” by “permitting a law that is nearly identical to the abortion restriction” the High Court struck down in its 2016 Whole Woman’s Health v. Hellerstedt decision.

But a mere two paragraphs later, Ian Millhiser acknowledged

In fairness, the two laws are not entirely identical. Most notably, Missouri’s law permits individual abortion clinics to seek waivers from the “physical plant regulations,” and at least one such waiver has been granted for a clinic that made a “minor request.”

Judge Shepherd, of course, pointed that out in his decision. But he also clarified what Hellerstedt held: [internal citations omitted]

As noted in our prior discussion, Hellerstedt’s rendition of the undue burden standard is fairly straightforward: it “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Indeed it emphasized there is “an independent constitutional duty to review factual findings where constitutional rights are at stake.” Thus, Hellerstedt did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional. Instead, it held that the “District Court applied the correct legal standard” when it “weighed the asserted benefits against the burdens.” The district court here explicitly refused to “weigh the asserted benefits” stating that to do so “would be impermissible judicial practice.”

In light of Hellerstedt the district court erred in so ruling. On remand, the district court should, at the very least, weigh the state’s “asserted benefits.”

Judge Shepherd was alluding to a fact too often ignored when courts routinely overturn this two-sided, commonsense requirement: there are real benefits to women to have their abortionist affiliated with a nearby hospital, beginning with continuity of care and “responsible participation of the patient in her own medical care,” but extending far beyond that.

Categories: Judicial