An eight-justice Court split 5-3, the majority consisting of the Court’s four more liberal Justices and Justice Kennedy. The majority determined that unnecessary health regulations that have the purpose or effect of creating a substantial obstacle to an abortion impose an undue burden on that Constitutional right. This standard requires the lower courts to weigh the burdens imposed by a law against the benefits to be achieved, giving considerable weight to the evidence presented to the trial court below.

As to the Texas admitting-privileges requirement, the Supreme Court majority determined that the evidence introduced indicated that abortion, with its particularly low rates of complications, was extremely safe, indicating that the requirement was unnecessary. The district court below had found that “the great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”

At the same time, the Court majority concluded that the admitting-privileges requirement had placed a “substantial obstacle” in the path of a woman’s choice. The evidence from the lower court demonstrated that when the Texas provision became effective, the number of abortion clinics in the state dropped in half, resulting in longer waiting times, increased crowding, and longer distances for many to travel to those clinics remaining open.

In early 2014, just months after the Texas law became effective, the Louisiana legislature began considering an admitting-privileges requirement. By its own account, the Louisiana admitting-privileges requirement ultimately enacted was materially identical. Like the Texas provision at issue in Whole Woman’s Health, the Louisiana law requires a physician to hold “active admitting privileges” at a hospital within 30 miles of the facility where an abortion is provided.

The newly-enacted Louisiana law was quickly challenged in federal district court, which ultimately issued a 116-page opinion finding the law unconstitutional. Using the Whole Woman’s Health’s benefit-versus-burden analysis, the district court first determined, based on factual findings, that Louisiana’s admitting privileges requirement would provide “no significant health benefits to women.”  The district court further determined that Louisiana’s admitting-privileges requirement would “cripple women’s ability to have an abortion in Louisiana.” Much like the effect of the same law in Texas (but worse), the district court concluded that two of Louisiana’s only three existing abortion clinics would close and, as a result, women would encounter “longer waiting times for appointments,” “increased crowding,” and “travel for much longer distances” — burdens “which will fall most heavily on low-income women.”

On appeal, a three-judge divided panel of the Fifth Circuit Court of Appeals reversed, asserting that differences between “facts and geography” in Louisiana and Texas dictated a different outcome than in Whole Woman’s Health. In Louisiana, the Fifth Circuit two-judge majority declared “no woman would be unduly burdened and thus unconstitutionally burdened by” the admitting privileges requirement. The dissenting Fifth Circuit judge believed that the majority had failed in a number of ways to “meaningfully apply” Whole Woman’s Health and deemed it “beyond strange” that the panel majority had violated the cardinal rule that “appellate judges are not the triers of fact.”

On October 4, 2019, the Supreme Court granted review of the Fifth Circuit’s opinion and oral argument is presently set for March 4. June Medical Services LLC v. Gee. A decision will be likely before the end of this June.

Given the identical laws in Texas and Louisiana, and given the Whole Woman’s Health majority’s reliance on the evidence presented at the district court level which was consistent in both cases, one might ordinarily consider the outcome in the Louisiana case a foregone conclusion (or perhaps even wonder why the Court did not simply summarily reverse the Fifth Circuit). However, there is one significant intervening fact: the composition of the Supreme Court itself – Justice Kennedy has been replaced by Brett Kavanaugh. This circumstance might well be an instance where the composition of the Court makes a big difference in the outcome, even within a brief period of time and despite a similar set of law and facts.

One other fact worth noting:  Among the many “friend of the Court” briefs filed by supporters of both sides of this case was a brief filed by 207 Republican Members of Congress, including Andy Harris (MD-01). This brief, in addition to supporting the distinctions asserted by the Fifth Circuit majority between Louisiana and Texas, the brief goes on to argue that the “unworkability” of the right to abortion found in Roe v. Wade illustrates the need for the Court to “take up the issue of whether Roe should be reconsidered.”