Eighth Circuit on Hellerstedt: Supreme Court did not find, as a matter of law, that “abortion was inherently safe”

by Thomas M. Messner, J.D.

Last week the U.S. Court of Appeals for the Eighth Circuit issued an important opinion in the abortion case Comprehensive Health v. Josh Hawley (No. 17-1996).

At issue were two pro-life laws from Missouri.

• The hospital relationship requirement requires all doctors who perform abortions at ambulatory surgical centers to be privileged to perform surgical procedures in at least one licensed hospital within 15 miles of the abortion facility.
• The physical plant regulations mandate several physical design and layout requirements for abortion facilities. The physical plant regulations can be waived upon written request.

The district entered a preliminary injunction against both sets of standards. The court of appeals reversed.

Physical Plant Regulations

As to the physical plant regulations, the court of appeals ruled that the district court had committed an “error of law” by ruling against the requirement without having sufficient evidence on how the waiver process worked. If the waiver process operated with “sufficient flexibility,” the appeals court explained, the physical plant regulations would not constitute an “undue burden” on abortion access.

Accordingly, the appeals court ruled that it “lack[ed] sufficient information to make a constitutional determination on the Physical Plant Regulations. Any ruling now,” the court explained, quoting to Supreme Court precedent, “would mean ‘our disposition . . . would lack the clarity and force which ought to inform the exercise of judicial authority.’”

Hospital Relationship Requirement

As to the hospital relationship requirement, the court of appeals ruled that the district court had erred in enjoining the requirement because it failed to apply the “plain language” of the Supreme Court 2016 precedent Whole Women’s Health v. Hellerstedt.

The appeals court explained, “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, the Eighth Circuit explained, Hellerstedt “emphasized there is ‘an independent constitutional duty to review factual findings where constitutional rights are at stake.’”

Crucially, the Eighth Circuit clarified that “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, Hellerstedt “held that the ‘District Court applied the correct legal standard’ when it ‘weighed the asserted benefits against the burdens.’”

The Eighth Circuit observed that, in Hellerstedt, the review was of abortion in Texas and the Supreme Court recognized in that case that abortion in Texas was “‘extremely safe’” before Texas passed the laws that were being challenged.

In the words of the Eighth Circuit, however, “[n]o such determination about abortion in Missouri was made here.” In fact, the district court “explicitly refused to ‘weigh[] the asserted benefits’” of the hospital relationship requirement. Accordingly, the district court erred.

Conclusion

The ruling shows that district courts should not use Hellerstedt as a rubber stamp for lawsuits filed by the abortion industry. Instead, in cases where Hellerstedt applies, courts should examine the health and safety risks of abortion as vigorously as they examine the burdens imposed by any health and safety regulations.

Further, the opinion serves as a reminder that a federal court shouldn’t strike down any duly enacted law, including pro-life laws, without an adequate legal justification. As the Eighth Circuit wrote, quoting from an 1810 Supreme Court opinion authored by Chief Justice Marshall, “Invoking the Constitution to enjoin the laws of a state requires more than ‘slight implication and vague conjecture.’”