June Medical Services L. L. C. v. Russo

I

A

In March 2014, five months after Texas' admitting-privileges requirement forced the closure of half of that State's abortion clinics, Louisiana's Legislature began to hold hearings to consider a substantially identical proposal. Compare Whole Woman's Health , 579 U. S., at ---- - ----, 136 S.Ct., at 2299-2300, with June Medical Services LLC v. Kliebert , 250 F.Supp.3d 27, 53 (MD La. 2017) ; Record 11220. The proposal became law in mid-June 2014. 2014 La. Acts p. 2330.

As was true in Texas, Louisiana law already required abortion providers either to possess local hospital admitting privileges or to have a patient "transfer" arrangement with a physician who had such privileges. Compare Whole Woman's Health , 579 U. S., at ----, 136 S.Ct., at 2300 (citing Tex. Admin. Code, tit. 25, § 139.56 (2009) ), with former La. Admin. Code, tit. 48, pt. I, § 4407(A)(3) (2003), 29 La. Reg. 706-707 (2003). The new law eliminated that flexibility. Act 620 requires any doctor who performs abortions to hold "active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services." La. Rev. Stat. Ann. § 40:1061.10(A)(2)(a).

The statute defines "active admitting privileges" to mean that the doctor must be "a member in good standing" of the hospital's "medical staff ... with the ability to admit a patient and to provide diagnostic and surgical services to such patient." Ibid. ; La. Admin. Code, tit. 48, pt. I, § 4401. Failure to comply may lead to fines of up to $4,000 per violation, license revocation, and civil liability. See ibid. ; La. Rev. Stat. Ann. § 40:1061.29.

B

A few weeks before Act 620 was to take effect in September 2014, three abortion clinics and two abortion providers filed a lawsuit in Federal District Court. They alleged that Act 620 was unconstitutional because (among other things) it imposed an undue burden on the right of their patients to obtain an abortion. App. 24. The court later consolidated their lawsuit with a similar, separate action brought by two other clinics and two other abortion providers. (Like the courts below, we shall refer to the two doctors in the first case as Doe 1 and Doe 2; we shall refer to the two doctors in the second case as Doe 5 and Doe 6; and we shall refer to two other doctors then practicing in Louisiana as Doe 3 and Doe 4.)

The plaintiffs immediately asked the District Court to issue a temporary restraining order (TRO), followed by a preliminary injunction that would prevent the law from taking effect. June Medical Services LLC v. Caldwell , No. 14-cv-00525, 2014 WL 12923494 (MD La., Aug. 22, 2014), Doc. No. 5.

The State of Louisiana, appearing for the defendant Secretary of the Department *2114of Health and Hospitals, filed a response that opposed the plaintiffs' TRO request. App. 32-39. But the State went on to say that, if the court granted the TRO or if the parties reached an agreement that would allow the plaintiffs time to obtain privileges without a TRO, the court should hold a hearing on the preliminary injunction request as soon as possible. Id. , at 43. The State argued that there was no reason to delay a ruling on the merits of the plaintiffs' undue-burden claims. Id ., at 43-44. It asserted that there was "no question that the physicians had standing to contest the law." Id. , at 44. And, in light of the State's "overriding interest in vindicating the constitutionality of its admitting-privileges law," the plaintiffs' suit was "the proper vehicle" to "remov[e] any cloud upon" Act 620's "validity." Id ., at 45.

The District Court declined to stay the Act's effective date. Instead, it provisionally forbade the State to enforce the Act's penalties, while directing the plaintiff doctors to continue to seek conforming privileges and to keep the court apprised of their progress. See TRO in No. 14-cv-00525, Doc. No. 31, pp. 2-3; see, e.g., App. 48-55, 64-82. These updates continued through the date of the District Court's decision. 250 F.Supp.3d at 77.

C

In June 2015, the District Court held a 6-day bench trial on the plaintiffs' request for a preliminary injunction. It heard live testimony from a dozen witnesses, including three Louisiana abortion providers, June Medical's administrator, the Secretary (along with a senior official) of the State's Department of Health and Hygiene, and three experts each for the plaintiffs and the State. Id., at 33-34. It also heard from several other witnesses via deposition. Ibid. Based on this evidentiary record, the court issued a decision in January 2016 declaring Act 620 unconstitutional on its face and preliminarily enjoining its enforcement. June Medical Services LLC v. Kliebert , 158 F.Supp.3d 473 (MD La.).

The State immediately asked the Court of Appeals for the Fifth Circuit to stay the District Court's injunction. The Court of Appeals granted that stay. But we then issued our own stay at the plaintiffs' request, thereby leaving the District Court's preliminary injunction (at least temporarily) in effect. See June Medical Services, L. L. C. v. Gee , 814 F.3d 319 (CA5), vacated, 577 U. S. ----, 136 S.Ct. 1354, 194 L.Ed.2d 254 (2016).

Approximately two months later, in June 2016, we issued our decision in Whole Woman's Health, reversing the Fifth Circuit's judgment in that case. We remanded this case for reconsideration, and the Fifth Circuit in turn remanded the case to the District Court permitting it to engage in further factfinding. See June Medical Services, L.L.C. v. Gee , 2016 WL 11494731 (CA5, Aug. 24, 2016) (per curiam ). All the parties agreed that the District Court could rule on the plaintiffs' request for a permanent injunction on the basis of the record it had already developed. Minute Entry in No. 14-cv-00525, Doc. No. 253. The court proceeded to do so.

D

Because the issues before us in this case primarily focus upon the factual findings (and fact-related determinations) of the District Court, we set forth only the essential findings here, giving greater detail in the analysis that follows.

With respect to the Act's asserted benefits, the District Court found that:

• "[A]bortion in Louisiana has been extremely safe, with particularly low rates of serious complications." 250 F.Supp.3d at 65. The "testimony of clinic staff and physicians demonstrated"

*2115that it "rarely ... is necessary to transfer patients to a hospital: far less than once a year, or less than one per several thousand patients." Id., at 63. And "[w]hether or not a patient's treating physician has admitting privileges is not relevant to the patient's care." Id., at 64.

• There was accordingly " 'no significant health-related problem that the new law helped to cure.' The 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." Id., at 86. (quoting Whole Woman's Health , 579 U. S., at ----, 136 S.Ct., at 2311 ); see also 250 F.Supp.3d at 86-87 (summarizing conclusions).

• There was also "no credible evidence in the record that Act 620 would further the State's interest in women's health beyond that which is already insured under existing Louisiana law." Id., at 65.

Turning to Act 620's impact on women's access to abortion, the District Court found that:

• Approximately 10,000 women obtain abortions in Louisiana each year. Id., at 39. At the outset of this litigation, those women were served by six doctors at five abortion clinics. Id., at 40, 41-44. By the time the court rendered its decision, two of those clinics had closed, and one of the doctors (Doe 4) had retired, leaving only Does 1, 2, 3, 5, and 6. Ibid.

• "[N]otwithstanding the good faith efforts of Does 1, 2, 4, 5 and 6 to comply with the Act by getting active admitting privileges at a hospital within 30 miles of where they perform abortions, they have had very limited success for reasons related to Act 620 and not related to their competence." Id., at 78.

• These doctors' inability to secure privileges was "caused by Act 620 working in concert with existing laws and practices," including hospital bylaws and criteria that "preclude or, at least greatly discourage, the granting of privileges to abortion providers." Id., at 50.

• These requirements establish that admitting privileges serve no " 'relevant credentialing function' " because physicians may be denied privileges "for reasons unrelated to competency." Id., at 87 (quoting Whole Woman's Health , 579 U. S., at ----, 136 S.Ct., at 2313 ).

• They also make it "unlikely that the [a]ffected clinics will be able to comply with the Act by recruiting new physicians who have or can obtain admitting privileges." 250 F.Supp.3d at 82.

• Doe 3 testified credibly "that, as a result of his fears, and the demands of his private OB/GYN practice, if he is the last physician performing abortion in either the entire state or in the northern part of the state, he will not continue to perform abortions." Id., at 79 ; see also id., at 78-79 (summarizing that testimony).

• Enforcing the admitting-privileges requirement would therefore "result in a drastic reduction in the number and geographic distribution of abortion providers, reducing the number of clinics to one, or at most two, and leaving only one, or at most two, physicians providing abortions in the entire state," Does 3 and 5, who would only be allowed to practice in Shreveport and New Orleans.

*2116Id., at 87. Depending on whether Doe 3 stopped practicing, or whether his retirement was treated as legally relevant, the impact would be a 55%-70% reduction in capacity. Id., at 81.

• "The result of these burdens on women and providers, taken together and in context, is that many women seeking a safe, legal abortion in Louisiana will be unable to obtain one. Those who can will face substantial obstacles in exercising their constitutional right to choose abortion due to the dramatic reduction in abortion services." Id., at 88 ; see id., at 79, 82, 87-88.

• In sum, "Act 620 does not advance Louisiana's legitimate interest in protecting the health of women seeking abortions. Instead, Act 620 would increase the risk of harm to women's health by dramatically reducing the availability of safe abortion in Louisiana." Id., at 87 ; see also id., at 65-66.

The District Court added that

"there is no legally significant distinction between this case and [ Whole Woman's Health ]: Act 620 was modeled after the Texas admitting privileges requirement, and it functions in the same manner, imposing significant obstacles to abortion access with no countervailing benefits." Id., at 88.

On the basis of these findings, the court held that Act 620 and its implementing regulations are unconstitutional. It entered an injunction permanently forbidding their enforcement.

E

The State appealed. A divided panel of the Court of Appeals reversed the District Court's judgment. The panel majority concluded that Act 620's impact was "dramatically less" than that of the Texas law invalidated in Whole Woman's Health . June Medical Services L. L. C. v. Gee , 905 F.3d 787, 791 (CA5 2018). "Despite its diligent effort to apply [ Whole Woman's Health ] faithfully," the majority thought that the District Court had "clearly erred in concluding otherwise." Id., at 815.

With respect to the Act's asserted benefits, the majority thought that, "[u]nlike Texas, Louisiana presents some evidence of a minimal benefit." Id., at 805. Rejecting the District Court's contrary finding, it concluded that the admitting-privileges requirement "performs a real, and previously unaddressed, credentialing function that promotes the wellbeing of women seeking abortion." Id., at 806. The majority believed that the process of obtaining privileges would help to "verify an applicant's surgical ability, training, education, experience, practice record, and criminal history." Id., at 805, and n. 53. And it accepted the State's argument that the law "brings the requirements regarding outpatient abortion clinics into conformity with the preexisting requirement that physicians at ambulatory surgical centers ('ASCs') must have privileges at a hospital within the community." Id., at 805.

Moving on to Act 620's burdens, the appeals court wrote that "everything turns on whether the privileges requirement actually would prevent doctors from practicing in Louisiana." Id., at 807. Although the State challenged the District Court's findings only with respect to Does 2 and 3, the Court of Appeals went further. It disagreed with nearly every one of the District Court's findings, concluding that "the district court erred in finding that only Doe 5 would be able to obtain privileges and that the application process creates particular hardships and obstacles for abortion providers in Louisiana." Id., at 810. The court noted that "[a]t least three hospitals have proven willing to extend privileges." Ibid. It thought that "only Doe 1 has put forth a *2117good-faith effort to get admitting privileges," while "Doe 2, Doe 5, and Doe 6 could likely obtain privileges," ibid. , and "Doe 3's personal choice to stop practicing cannot be legally attributed to Act 620," id., at 811.

Having rejected the District Court's findings with respect to all but one of the physicians, the Court of Appeals concluded that "there is no evidence that Louisiana facilities will close from Act 620." Id., at 810. The appeals court allowed that the Baton Rouge clinic where Doe 5 had not obtained privileges would close. But it reasoned that "[b]ecause obtaining privileges is not overly burdensome, ... the fact that one clinic would have to close is not a substantial burden that can currently be attributed to Act 620 as distinguished from Doe 5's failure to put forth a good faith effort." Ibid. The Court of Appeals added that the additional work that Doe 2 and Doe 3 would have to do to compensate for Doe 1's inability to perform abortions "does not begin to approach the capacity problem in" Whole Woman's Health . 905 F.3d at 812. It estimated that Act 620 would "resul[t] in a potential increase" in waiting times "of 54 minutes at one of the state's clinics for at most 30% of women." Id., at 815.

On the basis of these findings, the panel majority concluded that Louisiana's admitting-privileges requirement would impose no "substantial burden at all" on Louisiana women seeking an abortion, "much less a substantial burden on a large fraction of women as is required to sustain a facial challenge." Ibid. Judge Higginbotham dissented.

The Court of Appeals denied the plaintiffs' petition for en banc rehearing over dissents by Judges Dennis and Higginson, joined by four of their colleagues. See June Medical Services, L. L. C. v. Gee , 913 F.3d 573 (CA5 2019) (per curiam ). The plaintiffs then asked this Court to stay the Fifth Circuit's judgment. We granted their application, thereby allowing the District Court's injunction to remain in effect. June Medical Services, L. L. C. v. Gee , 586 U. S. ----, 139 S.Ct. 663, 203 L.Ed.2d 143 (2019). The plaintiffs subsequently filed a petition for certiorari addressing the merits of the appeals court's decision. The State filed a cross-petition, challenging the plaintiffs' authority to maintain this action. We granted both petitions.

II

We initially consider a procedural argument that the State raised for the first time in its cross-petition for certiorari. As we have explained, the plaintiff abortion providers and clinics in this case have challenged Act 620 on the ground that it infringes their patients' rights to access an abortion. The State contends that the proper parties to assert these rights are the patients themselves. We think that the State has waived that argument.

The State's argument rests on the rule that a party cannot ordinarily " 'rest his claim to relief on the legal rights or interests of third parties.' " Kowalski v. Tesmer , 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). This rule is "prudential." 543 U.S. at 128-129, 125 S.Ct. 564. It does not involve the Constitution's "case-or-controversy requirement." Id., at 129, 125 S.Ct. 564 ; see Craig v. Boren , 429 U.S. 190, 193, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) ; Singleton v. Wulff , 428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). And so, we have explained, it can be forfeited or waived. See Craig , 429 U.S. at 193-194, 97 S.Ct. 451.

As we pointed out, supra, at 2113 - 2114, the State's memorandum opposing the *2118plaintiffs' TRO request urged the District Court to proceed swiftly to the merits of the plaintiffs' undue-burden claim. It argued that there was "no question that the physicians had standing to contest" Act 620. App. 44. And it told the District Court that the Fifth Circuit had found that doctors challenging Texas' "identical" law "had third-party standing to assert their patients' rights." Id., at 43-44. Noting that the Texas law had "already been upheld," the State asserted that it had "a keen interest in removing any cloud upon the validity of its law." Id., at 45. It insisted that this suit was "the proper vehicle to do so." Ibid. The State did not mention its current objection until it filed its cross-petition-more than five years after it argued that the plaintiffs' standing was beyond question.

The State's unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs' undue-burden claims bars our consideration of it here. See Wood v. Milyard , 566 U.S. 463, 474, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012) ; cf. post, at 2165 - 2166 (ALITO, J., dissenting) (addressing the Court's approach to claims forfeited, rather than waived); post , at 2174 - 2175 (GORSUCH, J., dissenting) (addressing waiver of structural rather than prudential objections).

The State refers to the Fifth Circuit's finding of standing in Whole Woman's Health as an excuse for its concession. Brief for Respondent in No. 181323, p. 52 (Brief for Respondent). But the standing argument the State makes here rests on reasons that it tells us are specific to abortion providers in Louisiana . See id., at 41-48. We are not persuaded that the State could have thought it was precluded from making those arguments by a decision with respect to Texas doctors.

And even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis. What we said some 45 years ago in Craig applies equally today: "[A] decision by us to forgo consideration of the constitutional merits"-after "the parties have sought or at least have never resisted an authoritative constitutional determination" in the courts below-"in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence." 429 U.S. at 193-194, 97 S.Ct. 451 (quotation altered).

In any event, the rule the State invokes is hardly absolute. We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations. See, e.g., Whole Woman's Health , 579 U. S., at ----, 136 S.Ct., at 2314 ; Gonzales , 550 U.S. at 133, 127 S.Ct. 1610 ; Ayotte v. Planned Parenthood of Northern New Eng. , 546 U.S. 320, 324, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ; Stenberg v. Carhart , 530 U.S. 914, 922,