No. 18-1323
IN THE

Supreme Court of the United States
____________________
JUNE MEDICAL SERVICES L.L.C., et al.,
Petitioners,
v.

REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS,
Respondent.
____________________
On Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
____________________
BRIEF FOR PETITIONERS
____________________
Jeffrey L. Fisher
O’MELVENY & MYERS LLP
2765 Sand Hill Road
Menlo Park, CA 94025
Bradley N. Garcia
Samantha M. Goldstein
Kendall Turner
Jeremy Girton
O’MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006

Julie Rikelman
Travis J. Tu
Counsel of Record
Jessica Sklarsky
CENTER FOR REPRODUCTIVE
RIGHTS
199 Water Street
New York, NY 10038
(917) 637-3627
tjtu@reprorights.org
Anton Metlitsky
Yaira Dubin
O’MELVENY & MYERS LLP
7 Times Square
New York, NY 10036

 i
QUESTION PRESENTED
In Whole Woman’s Health v. Hellerstedt, 136 S.
Ct. 2292 (2016), this Court held that a state law requiring physicians who perform abortions to have admitting privileges at a local hospital was unconstitutional because it imposed an undue burden on women
seeking abortions. The U.S. Court of Appeals for the
Fifth Circuit upheld an admitting-privileges law in
Louisiana that is identical to the one this Court
struck down. This brief addresses the following issue:
Whether the Fifth Circuit’s decision upholding
Louisiana’s law requiring physicians who perform
abortions to have admitting privileges at a local hospital conflicts with this Court’s binding precedent in
Whole Woman’s Health.

 ii
PARTIES TO THE PROCEEDINGS
Petitioners are June Medical Services L.L.C., a
clinic that does business as Hope Medical Group, and
two Louisiana physicians identified in the proceedings below by the pseudonyms Dr. John Doe 1 and
Dr. John Doe 2. Hope has no parent company, and
no publicly held company owns 10 percent or more of
its stock.
Respondent is Dr. Rebekah Gee in her official capacity as Secretary of the Louisiana Department of
Health.

 iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ....................................... i
PARTIES TO THE PROCEEDINGS ...................... ii
TABLE OF CONTENTS ......................................... iii
BRIEF FOR PETITIONERS ....................................1
OPINIONS BELOW ..................................................1
JURISDICTION ........................................................1
RELEVANT CONSTITUTIONAL,
STATUTORY, AND REGULATORY
PROVISIONS......................................................2
INTRODUCTION .....................................................2
STATEMENT OF THE CASE ..................................3
A. Admitting-Privileges Laws And Whole
Woman’s Health..............................................3
B. Aftermath Of Whole Woman’s Health ...........7
C. Louisiana’s Act 620 ........................................8
D. District Court Proceedings ........................... 10
E. Appellate Proceedings .................................. 14
SUMMARY OF THE ARGUMENT ........................ 17
ARGUMENT ........................................................... 21
I. WHOLE WOMAN’S HEALTH
CONTROLS THIS CASE .................................. 21
A. When, As In Whole Woman’s Health,
This Court Declares A Law
Unconstitutional, Materially
Indistinguishable Laws Are Invalid As
Well ............................................................... 21

 iv
TABLE OF CONTENTS
(continued)
Page
1. Declaring A Law Unconstitutional
Is Different From Resolving A
Purely Fact-Based Dispute...................... 21
2. Whole Woman’s Health Invalidated
Texas’s Admitting-Privileges Law
For Reasons That Extend Beyond
Texas ........................................................ 24
B. Louisiana’s Admitting-Privileges Law
Is Materially Indistinguishable From
The Texas Law In Whole Woman’s
Health ........................................................... 26
1. The District Court Found That The
Facts Of This Case Are Materially
Indistinguishable From Whole
Woman’s Health ...................................... 26
2. The Fifth Circuit Had No Warrant
To Reject The District Court’s
Findings .................................................. 31
a. The Fifth Circuit Erred In
Finding That Act 620 Confers
Benefits .............................................. 32
b. The Fifth Circuit Erred In
Opining That Act 620 Would Not
Burden Abortion Access .................... 37
II. ACT 620 IS UNCONSTITUTIONAL
EVEN ASSUMING THE BURDENS
HERE ARE LESS THAN IN WHOLE
WOMAN’S HEALTH ......................................... 45

 v
TABLE OF CONTENTS
(continued)
Page
A. A Law That Burdens The Right To
Abortion With No Offsetting Benefit
Violates The Undue Burden Test ............... 45
B. Even If Act 620 Conferred A Minimal
Benefit, The Law Would Still Be
Unconstitutional .......................................... 48
CONCLUSION ........................................................ 50

 vi
TABLE OF AUTHORITIES

Page(s)

Cases
Am. Tradition P’ship, Inc. v. Bullock,
567 U.S. 516 (2012) ....................................... 22, 23
Anderson v. Bessemer City,
470 U.S. 564 (1985) ............................................. 31
Anderson v. Celebrezze,
460 U.S. 780 (1983) ............................................. 47
Brown v. Entm’t Merchants Ass’n,
564 U.S. 786 (2011) ............................................. 22
Burns v. Cline,
387 P.3d 348 (Okla. 2016) .................................... 8
Chandler v. Miller,
520 U.S. 305 (1997) ............................................. 48
Citizens United v. Fed. Election
Comm’n,
558 U.S. 310 (2010) ............................................. 22
Comprehensive Health of Planned
Parenthood Great Plains v. Hawley,
903 F.3d 750 (8th Cir. 2018)................................. 8
Davis v. Ayala,
135 S. Ct. 2187 (2015)......................................... 31
El Vocero de Puerto Rico (Caribbean
Int’l News Corp.) v. Puerto Rico,
508 U.S. 147 (1993) ............................................. 23
Exxon Co., U.S.A. v. Sofec, Inc.,
517 U.S. 830 (1996) ............................................. 40

 vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Florence v. Bd. of Chosen Freeholders of
Burlington Cty.,
132 S. Ct. 1510 (2012)......................................... 22
Glossip v. Gross,
135 S. Ct. 2726 (2015)......................................... 31
Gonzales v. Carhart,
550 U.S. 124 (2007) ............................................. 45
Harper v. Va. State Bd. of Elections,
383 U.S. 663 (1966) ............................................. 47
Inwood Labs., Inc. v. Ives Labs., Inc.,
456 U.S. 844 (1982) ............................................. 31
Jackson Women’s Health Org. v.
Currier,
320 F. Supp. 3d 828 (S.D. Miss.
2018) ...................................................................... 8
Jackson Women’s Health Org. v.
Currier,
760 F.3d 448 (5th Cir. 2014)................................. 7
Jackson Women’s Health Org. v.
Currier,
940 F. Supp. 2d 416 (S.D. Miss.
2013) ...................................................................... 3
June Med. Servs., LLC v. Caldwell,
No. 3:14-cv-525, 2014 WL 4296679
(M.D. La. Aug. 31, 2014)..................................... 10

 viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Kimble v. Marvel Entm’t, LLC,
135 S. Ct. 2401 (2015)......................................... 21
Kisor v. Wilkie,
139 S. Ct. 2400 (2019)......................................... 21
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782 (2014) ............................................. 21
Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ............................................. 21
Payne v. Tennessee,
501 U.S. 808 (1991) ............................................. 21
Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott,
748 F.3d 583 (5th Cir. 2014)........................... 4, 10
Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott,
734 F.3d 406 (5th Cir. 2013)................................. 4
Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott,
951 F. Supp. 2d 891 (W.D. Tex.
2013) ...................................................................... 3
Planned Parenthood Se., Inc. v. Strange,
33 F. Supp. 3d 1330 (M.D. Ala. 2014) .................. 3
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ................................. 46, 49, 50

 ix
TABLE OF AUTHORITIES
(continued)
Page(s)
Planned Parenthood of Wis., Inc. v.
Schimel,
806 F.3d 908 (7th Cir. 2015)............................. 3, 7
Planned Parenthood of Wis., Inc. v. Van
Hollen,
94 F. Supp. 3d 949 (W.D. Wis. 2015) ................... 3
Planned Parenthood of Wis., Inc. v. Van
Hollen,
738 F.3d 786 (7th Cir. 2013)............................... 33
Press-Enter. Co. v. Sup. Ct.,
478 U.S. 1 (1986) ................................................. 23
Roe v. Wade,
410 U.S. 113 (1973) ....................................... 46, 49
United States v. Real Estate Bds.,
339 U.S. 485 (1950) ............................................. 31
W. Tradition P’ship, Inc. v. Atty. Gen.,
271 P.3d 1 (Mont. 2011) ...................................... 23
Whole Woman’s Health v. Cole,
790 F.3d 563 (5th Cir. 2015)............................. 4, 6
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016)................................. passim
Statutes & Regulations
28 U.S.C. § 1254 ......................................................... 1
La. Admin. Code tit. 46, § 7301 ............................... 36
La. Admin. Code tit. 46, § 7307 ............................... 36

 x
TABLE OF AUTHORITIES
(continued)
Page(s)
La. Admin. Code tit. 46, § 7309 ............................... 36
La. Admin. Code tit. 48, pt. I, § 4401 .................. 9, 36
La. Admin. Code tit. 48, pt. I, § 4415 ........................ 9
La. Admin. Code tit. 48, pt. I, § 4417 ........................ 9
La. Admin. Code tit. 48, pt. I, § 4501 ...................... 36
La. Rev. Stat. § 37:1261 ........................................... 34
La. Rev. Stat. § 37:1272 ........................................... 34
La. Rev. Stat. § 37:1285 ........................................... 34
La. Rev. Stat. § 40:1061.10 .............................. 2, 9, 35
La. Rev. Stat. § 40.1061.17 ...................................... 30
La. Rev. Stat. § 40:1061.29 ........................................ 9
2016 La. Sess. Law Serv. Act 97
(H.B.386) ............................................................. 30
2013 La. Sess. Law Serv. Act 259
(S.B.90) ................................................................ 35
Former La. Admin. Code tit. 48, pt. I,
§ 4407, available at 29 La. Reg. 70607 (May 20, 2003) ............................................... 29
25 Tex. Admin. Code § 139.56 ................................. 28
Tex. Health & Safety Code § 141.012...................... 30
Rules
Fed. R. Civ. P. 52 ...................................................... 31

 xi
TABLE OF AUTHORITIES
(continued)
Page(s)
Other Authorities
Black’s Law Dictionary (11th ed. 2019) .................. 49
Bryan A. Garner, Neil M. Gorsuch,
Brett M. Kavanaugh, et al., The
Law of Judicial Precedent (2016) ....................... 22
Charles Alan Wright, The Doubtful
Omniscience of Appellate Courts, 41
Minn. L. Rev. 751 (1957) .................................... 31
The Federalist No. 78 (H. Lodge ed.
1888) (A. Hamilton) ............................................ 21
U.S. Dep’t of Health & Human Servs.,
National Practitioner Data Bank,
https://www.npdb.hrsa.gov/ (last
visited Nov. 23, 2019) ......................................... 41

 1
BRIEF FOR PETITIONERS
Petitioners June Medical Services L.L.C., Dr.
John Doe 1, and Dr. John Doe 2 (collectively referred
to as “Hope”) respectfully request that this Court reverse the judgment of the U.S. Court of Appeals for
the Fifth Circuit.
OPINIONS BELOW
The decision of the court of appeals is reported at
905 F.3d 787 (5th Cir. 2018) and reprinted at Pet.
App. 1a-103a. The court of appeals’ order denying rehearing en banc is reported at 913 F.3d 573 (5th Cir.
2019) and reprinted at Pet. App. 104a-31a. The district court’s opinion declaring Louisiana’s admittingprivileges law unconstitutional and permanently enjoining the statute and its implementing regulations
is reported at 250 F. Supp. 3d 27 (M.D. La. 2017) and
reprinted at Pet. App. 132a-279a.
JURISDICTION
The court of appeals issued its decision on September 26, 2018 and denied rehearing on January 18,
2019. Pet. App. 1a, 104a-05a. The petition for a writ
of certiorari was filed on April 17, 2019, and the petition was granted on October 4, 2019. This Court has
jurisdiction under 28 U.S.C. § 1254(1).

 2
RELEVANT CONSTITUTIONAL, STATUTORY,
AND REGULATORY PROVISIONS
This case involves the Fourteenth Amendment to
the U.S. Constitution; Louisiana Revised Statute
§ 40:1061.10 (“Act 620”); and Act 620’s implementing
regulations. Relevant portions of these provisions
are reproduced at Pet. App. 285a-90a.
INTRODUCTION
A properly functioning legal system depends on
certain basic operating principles. One is the maxim
that legal holdings of higher courts are binding on
lower courts. Another is that a trial court’s factual
findings govern on appeal unless clearly erroneous.
Mundane as these rules may sound, and easy though
they may be to slight for short-term advantage,
courts do so at their peril. If the fundamental rules
of the road are not honored in our most contentious
cases, then the public and political branches may
cease respecting the courts as true guardians of the
rule of law.
This case poses a serious threat to these precepts.
Just two years after this Court held in Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292
(2016), that Texas’s law requiring abortion providers
to have admitting privileges at local hospitals violated the Fourteenth Amendment, a divided panel of
the Fifth Circuit deemed Louisiana’s identical law
constitutional. The panel majority declared it was “of
course bound by” Whole Woman’s Health, and it
claimed it rejected the district court’s findings that
the cases are factually indistinguishable only after a
“[c]areful review of the record.” Pet. App. 2a, 31a.

 3
But the substance of the panel’s opinion belies these
assertions. In reality, the panel simply refused to accept the holding of Whole Woman’s Health, and it
trampled the district court’s expertise and meticulous explication of the record.
This Court should reverse.
STATEMENT OF THE CASE
A. Admitting-Privileges Laws And Whole
Woman’s Health
1. Beginning in 2012, several states, including
Texas, passed laws requiring abortion providers to
obtain admitting privileges at local hospitals. The
laws were promptly challenged, and district courts
around the country uniformly determined that these
laws are medically unnecessary and do not advance
women’s health or safety. Planned Parenthood of
Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949, 953, 97280 (W.D. Wis. 2015); see also, e.g., Planned
Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330,
1364-76 (M.D. Ala. 2014); Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 951 F.
Supp. 2d 891, 901 (W.D. Tex. 2013); Jackson Women’s
Health Org. v. Currier, 940 F. Supp. 2d 416, 420-21,
424 (S.D. Miss. 2013). The Seventh Circuit agreed
with this consensus, holding that Wisconsin’s admitting-privileges law imposed an undue burden on a
woman’s right to abortion. Planned Parenthood of
Wis., Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015),
cert. denied, 136 S. Ct. 2545 (2016).

 4
In October 2013, however, the Fifth Circuit stayed
the injunction against Texas’s law, H.B.2,1 allowing
the law to go into effect. Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 734
F.3d 406, 409 (5th Cir. 2013). Numerous Texas clinics closed overnight, and all told about 20 clinics were
ultimately shuttered statewide. Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2301, 2312
(2016). The Fifth Circuit later upheld Texas’s law on
the merits. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 595-96
(5th Cir. 2014).
The Fifth Circuit upheld H.B.2 again the following year in Whole Woman’s Health v. Cole, 790 F.3d
563 (5th Cir. 2015). In so doing, the Fifth Circuit expressly departed from the Seventh Circuit’s analysis
of Wisconsin’s admitting-privileges law and made
clear that it “disagree[d]” with any approach that
considers whether an abortion restriction “actually
further[s]” a legitimate interest in evaluating its constitutionality. Id. at 586, 587 n.33.
2.
This Court granted certiorari in Whole
Woman’s Health to resolve the circuit split. It then
reversed the Fifth Circuit, holding that Texas’s admitting-privileges law was facially unconstitutional.
136 S. Ct. at 2310-14, 2318-20.
a. The Court first held that the Fifth Circuit applied the wrong standard. The Court explained that
the Fifth Circuit’s articulation of the undue burden
1 H.B.2 contained several abortion restrictions. References
to H.B.2 in this brief are specific to the law’s admitting-privileges requirement, unless otherwise indicated.

 5
test wrongly implied that “legislatures, and not
courts, must resolve questions of medical uncertainty.” Id. at 2310. To safeguard the constitutional
right of women to have access to abortion, the Court
made clear that federal courts must assess the evidence presented in judicial proceedings and “consider
the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at
2309-10. Further, to be constitutional, a law’s benefits must be “sufficient to justify [its] burdens.” Id. at
2300.
b. The Court then analyzed H.B.2’s benefits. Relying heavily on the district court’s findings—which
were based, in turn, on general medical evidence and
studies conducted across the United States—the
Court agreed that the admitting-privileges requirement provides “no . . . health-related benefit” to
women. Id. at 2311. In particular, the Court credited
the district court’s findings that:
•

“[T]he incidence of [abortion] complications requiring hospital admission was 0.23%.” Id.

•

In the rare event of a serious complication requiring hospitalization, “it is extremely unlikely” that
a patient will experience the complication at the
clinic, as most such complications occur in the
days after the abortion once the patient has returned home. Id. Such a delay is common for surgical abortions and “expected for medical abortions” because a medical abortion almost always
occurs after the patient has left the clinic. Id. In
these circumstances, the patient will likely seek
“medical attention at the hospital nearest her
home.” Id.

 6
•

If a complication requiring hospitalization does
occur at the clinic, the “quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges.” Id.

The Court also rejected the State’s contention that
H.B.2 protects women’s health by requiring abortion
providers “to be credentialed” by their peers, “thereby
protecting patients from less than qualified providers.” Cole, 790 F.3d at 579. The Court held that an
“admitting-privileges requirement does not serve any
relevant credentialing function,” given the “undisputed general fact” that hospitals often deny physicians admitting privileges for reasons that “have
nothing to do with” their competency or “ability” to
perform abortions. Whole Woman’s Health, 136 S. Ct.
at 2312-13 (emphasis added). For example, the Court
highlighted that many hospitals condition privileges
on admitting a certain number of patients per year.
Id. at 2312. Yet, doctors who perform abortions are
“unlikely” to meet these requirements because “abortions are so safe.” Id. And they also cannot satisfy
“other common prerequisites” to admitting privileges
that “have nothing to do with” their “ability to perform” outpatient abortion procedures, such as clinical-data requirements, residency requirements, requirements that an applicant accept a faculty appointment, and other discretionary factors unrelated
to competency. Id.
c. Turning to H.B.2’s burdens, the Court determined that the admitting-privileges requirement imposed numerous obstacles “in the path of a woman’s
choice.” Id. (internal quotation marks and citation
omitted). The Court observed that the number of

 7
Texas clinics “dropped in half,” “from about 40 to
about 20,” and that “H.B. 2 in fact led to the clinic
closures.” Id. at 2313. Patients of the remaining clinics faced numerous burdens, including longer travel
distances, “fewer doctors, longer waiting times, and
increased crowding.” Id. at 2312-13.
d. The Court concluded that, “viewed in light of
the virtual absence of any health benefit,” the district
court had correctly determined that H.B.2’s admitting-privileges requirement imposed an undue burden on women’s right to access abortion and was thus
unconstitutional. Id.
B. Aftermath Of Whole Woman’s Health
After the opinion in Whole Woman’s Health issued, this Court treated the decision as resolving the
constitutionality of all admitting-privileges laws.
The Court had held petitions for certiorari pending
its resolution of Whole Woman’s Health in cases enjoining Wisconsin’s and Mississippi’s admitting-privileges requirements. Had the Court understood
Whole Woman’s Health simply to establish a legal
framework for assessing the constitutionality of such
laws on a state-by-state basis, it presumably would
have granted, vacated, and remanded those petitions
in light of Whole Woman’s Health. The Court instead
denied certiorari in both cases, allowing the injunctions to stand. See Planned Parenthood of Wis., Inc.
v. Schimel, 806 F.3d 908 (7th Cir. 2015), cert. denied,
136 S. Ct. 2545 (2016) (No. 15-1200); Jackson
Women’s Health Org. v. Currier, 760 F.3d 448 (5th
Cir. 2014), cert. denied, 136 S. Ct. 2536 (2016) (No.
14-997).

 8
Shortly thereafter, Alabama and Tennessee conceded in pending cases that their admitting-privileges laws were unconstitutional. See Mot. to Dismiss Appeal 1, Planned Parenthood Se., Inc. v.
Strange, No. 16-11867 (11th Cir. July 15, 2016) (“Because Alabama’s law is identical in all relevant respects to the law at issue in Whole Woman’s Health,
there is now no good faith argument that the law is
constitutional under controlling precedent.”); Joint
Mot. to Enter Partial J. on Consent 4, Adams &
Boyle, P.C. v. Slatery, No. 3:15-cv-00705 (M.D. Tenn.
Apr. 13, 2017). And while a few other states, such as
Oklahoma, did not concede their similar laws were
unconstitutional, courts promptly blocked those laws
on the basis of Whole Woman’s Health. See Burns v.
Cline, 387 P.3d 348 (Okla. 2016); Jackson Women’s
Health Org. v. Currier, 320 F. Supp. 3d 828 (S.D.
Miss. 2018). But see Comprehensive Health of
Planned Parenthood Great Plains v. Hawley, 903
F.3d 750, 758 (8th Cir. 2018) (vacating preliminary
injunction of local admitting-privileges requirement
and remanding for district court to “consider the evidence in the record” and weigh benefits against burdens (alteration and quotation marks omitted)).
C. Louisiana’s Act 620
1. In early 2014, just months after H.B.2 shuttered clinics in Texas, the Louisiana legislature began considering an admitting-privileges requirement
just like Texas’s law. Pet. App. 189a.
Shortly before Act 620’s passage, the leader of an
anti-abortion advocacy group sent the Act’s legislative sponsor an article touting H.B.2’s “tremendous
success in closing abortion clinics and restricting

 9
abortion access in Texas.” Pet. App. 195a. The leader
explained that Act 620 “follows this model.” Id. In
hearings on the bill, witnesses reiterated to legislators that Act 620 would shutter facilities in Louisiana, just as H.B.2 had done in Texas. See ROA 11275
(testimony that Act 620 would “close health care facilities”); ROA 11246 (testimony stressing that H.B.2
had resulted in “the closure of half of the clinics in
Texas” and that Act 620 was “pretty much the same
bill”).
2. By its own account, Louisiana not only “modeled” its admitting-privileges law on H.B.2, but the
laws’ admitting-privileges requirements are materially “identical.” JA 45; see also, e.g., Pet. App. 296a
(characterizing H.B.2’s admitting-privileges requirement as “identical to Louisiana’s”); Resp’t’s Opp. to
Emergency App. to Vacate Stay of Prelim. Inj. Pending Appeal 7, June Med. Servs. LLC v. Gee (No.
15A880) (referring to “identical privileges law in
Texas”). Like H.B.2, Act 620 requires a physician to
hold “active admitting privileges” at a hospital within
30 miles of the facility where an abortion is provided.
Pet. App. 286a-87a. “Active admitting privileges”
means the physician is a member of the hospital’s
medical staff, with the ability to admit patients and
provide diagnostic and surgical services. Id. 287a.
Violations of Act 620 are punishable by imprisonment, fines, license revocation, and civil liability. La.
Rev. Stat. §§ 40:1061.10(A)(2)(c), 40:1061.29; see also
La. Admin. Code tit. 48, pt. I, §§ 4401, 4415(B),
4417(A).

 10
D. District Court Proceedings
1. Six physicians (identified by pseudonyms as
Does 1 through 6) performed abortions in Louisiana
in September 2014 when Act 620 was scheduled to
take effect. Pet. App. 160a-65a. Each Doe physician
without admitting privileges applied to one or more
hospitals prior to the law’s effective date.
2. While those applications were pending, in August 2014, Hope, Doe 1, and Doe 2 filed this lawsuit
asserting that Act 620 was unconstitutional because
it unduly burdened their patients’ access to pre-viability abortion and violated their own due process
rights under the Fourteenth Amendment. JA 24.
The district court entered a temporary restraining order the day before the law’s effective date. June Med.
Servs., LLC v. Caldwell, No. 3:14-cv-525, 2014 WL
4296679 (M.D. La. Aug. 31, 2014).
The temporary restraining order did not enjoin
Act 620; it simply enjoined the State from enforcing
any penalties while the physicians sought privileges.
Id. at *10; see also Abbott, 748 F.3d at 600 (holding
that Texas’s admitting-privileges law could not be enforced against a physician who had a pending application for privileges). The district court required the
physicians to continue to seek privileges as the case
progressed, Caldwell, 2014 WL 4296679, at *10, as
well as to provide regular status updates on those applications, Pet. App. 160a n.20.
3. In June 2015, the district court held a 6-day
bench trial on Hope’s preliminary injunction motion,
with 20 witnesses (including 12 live) and hundreds of
exhibits. Pet. App. 140a-42a & n.3. In Louisiana’s

 11
own words, the lawsuit presented “the same undue
burden challenge” that was simultaneously being litigated in Whole Woman’s Health. JA 43. The district
court granted a preliminary injunction in early 2016.
Pet. App. 151a.
After this Court decided Whole Woman’s Health in
June 2016, the parties agreed that the district court
could proceed to final judgment based largely on the
evidence presented at the earlier hearing. Pet. App.
152a. By that time, one physician (Doe 4) had retired, id. 146a, leaving five physicians performing
abortions at three clinics, id. 156a-60a. Only two of
those five physicians had admitting privileges that
qualified under Act 620: Doe 3 had privileges near
Hope clinic in Shreveport, and Doe 5 had privileges
near Women’s clinic in New Orleans (but not Delta
clinic in Baton Rouge, where he also worked).

 12
In a 116-page opinion tracking Whole Woman’s
Health’s benefit-versus-burden analysis, the district
court held Act 620 unconstitutional and permanently
enjoined the law. Pet. App. 132a-279a.
The court first determined, based on factual findings tracking those in Whole Woman’s Health, that
Act 620’s “admitting privileges requirement . . . provides no significant health benefits to women.” Pet.
App. 270a n.8 (alteration in original); see also id.
166a-82a, 201a-20a. The district court likewise
found—again as in Whole Woman’s Health—that admitting privileges “do not serve ‘any relevant credentialing function.’” Id. 272a (quoting Whole Woman’s
Health, 136 S. Ct. at 2313). The court explained that
the Louisiana State Board of Medical Examiners
(“LSBME”) already “ensures physician competency
through licensing and discipline,” id., and the record
in the case demonstrated that admitting privileges
can be denied for reasons other than competency, see
id. 171a-73a. In fact, the district court found that
each doctor who sought privileges made “good faith
efforts” to comply with Act 620—notwithstanding the
“Kafka”-esque processes required by Louisiana hospitals—and was denied (or de facto denied) for reasons unrelated to his competency. Id. 222a.
Turning to the burdens side of the ledger, the district court held that Louisiana’s admitting-privileges
requirement would “cripple women’s ability to have
an abortion in Louisiana.” Pet. App. 274a.
Much like H.B.2’s effect in Texas, the district
court found that two of Louisiana’s three abortion
clinics (Hope and Delta) would close. Pet. App. 254a.

 13
“If Act 620 were to be enforced, three of the five doctors”—Does 1, 2, and 6—“would not meet the admitting privileges requirement.” Id.; see also JA 704,
1315 (Doe 1); JA 377, 1318-19 (Doe 2); JA 1311 (Doe
6). Doe 5 would not meet the requirement in Baton
Rouge but would in New Orleans. Pet. App. 244a45a, 253a-55a. And Doe 3, despite having privileges
in Shreveport, would stop performing abortions because Hope would not be a “viab[le]” going concern
once Doe 1 (who provided over 70% of its abortion services) could no longer work there. Id. 156a, 256a. All
told, only one provider (Doe 5) at one clinic (Women’s)
would remain, to provide services for the approximately 10,000 women per year seeking abortions. Id.
255a-56a.

Just as in Whole Woman’s Health, the district
court found that “fewer physicians” meant women
will encounter “longer waiting times for appointments” and “increased crowding” and “will have to

 14
travel much longer distances”—burdens “which will
fall most heavily on low-income women.” Pet. App.
258a, 274a. That would lead to “delays in care, causing a higher risk of complications, as well as a likely
increase in self-performed, unlicensed and unsafe
abortions.” Id. 260a.
E. Appellate Proceedings
1. a. A divided panel of the Fifth Circuit reversed,
asserting that differences between “facts and geography” in Louisiana and Texas dictated a different outcome than in Whole Woman’s Health. Pet. App. 2a,
31a. In Louisiana, the court of appeals declared, “no
woman would be unduly burdened and thus unconstitutionally burdened by” an admitting-privileges
law. Id. 53a.
The Fifth Circuit agreed that there was no evidence in the record that Act 620 would actually improve health outcomes for Louisiana women. Pet.
App. 38a n.56. The court of appeals nonetheless
claimed that Act 620 provided a “minimal benefit.”
Id. 34a. According to the panel majority, the law
would help ensure that physicians have adequate
credentials. Id. 35a-36a. The Fifth Circuit also
stated that Act 620 operated to bring the standards
for abortion providers into conformity with the requirements applied to ambulatory surgical centers.
Id. 37a.
As for Act 620’s burdens, the Fifth Circuit did not
disturb the district court’s findings that at most only
two providers, Does 3 and 5, could lawfully provide
abortion care if Act 620 went into effect—and Doe 5
only at one of the clinics where he worked (Women’s).

 15
Pet. App. 47a. But the Fifth Circuit held that, except
for Doe 1, the reduction in providers could not be attributed to the Act. Discarding the district court’s explicit findings that each of the physicians made good
faith efforts to obtain privileges, the Fifth Circuit
concluded that the other physicians did not pursue
admitting privileges with sufficient vigor, and their
lack of effort was an “intervening cause” that broke
the chain of causation between Act 620 and any subsequent decrease in abortion access. Id. 49a. The
Fifth Circuit also discounted Doe 3’s trial testimony
that, even if Hope could hang on for some time without Doe 1, he would stop providing abortions out of
concern for his safety if Act 620 took effect—characterizing Doe 3’s representation as merely a “personal
choice.” Id. 48a. Finally, the Fifth Circuit opined
that the burdens associated with the loss of Doe 1
would not be “substantial,” assuming that Does 2 and
3 would work hundreds of additional hours per year
to make up for his loss. Id. 46a, 51a-53a.
Having found for itself that Act 620 would impose
only “insubstantial burdens,” the Fifth Circuit declared that it need not balance the law’s benefits and
burdens. According to the Fifth Circuit, its burdens
analysis alone rendered the law constitutional. Pet.
App. 60a.
b. Judge Higginbotham dissented. He catalogued
numerous ways in which the panel “fail[ed] to meaningfully apply” Whole Woman’s Health. Pet. App.
60a. He deemed it “beyond strange” that the panel
majority violated the cardinal rule that “appellate
judges are not the triers of fact.” Id. 61a, 67a. And
he showed that the panel majority’s application of the

 16
undue burden test suffers from precisely the same errors for which “[t]he Supreme Court has previously
admonished [the Fifth Circuit].” Id. 95a.
2. Six other judges unsuccessfully urged rehearing the case en banc. Judge Dennis explained that a
“straightforward” application of Whole Woman’s
Health “leads to one possible result”: Because Act
620 “has no medical benefit” and “will restrict access
to abortion,” it is “surely” unconstitutional. Pet. App.
119a. Judge Dennis also criticized the panel majority
for its “egregious and pervasive” disregard for the
proper role of appellate judges by “impermissibly review[ing] the evidence de novo.” Id. 115a, 120a.
Judge Higginson wrote separately to reiterate
that Act 620 is “equivalent in structure, purpose, and
effect to the Texas law invalidated in Whole Woman’s
Health.” Pet. App. 130a. Even if the panel were correct that Act 620 would not impose as severe a burden in Louisiana as H.B.2 imposed in Texas, he
would still have concluded that “Supreme Court law”
renders Act 620 unconstitutional because it provides
at most “minimal benefits.” Id. 131a.
3. This Court granted Hope’s emergency application to stay the Fifth Circuit’s mandate and later
granted certiorari.

 17
SUMMARY OF THE ARGUMENT
I. Whole Woman’s Health controls this case.
A. Adherence to this Court’s precedent is a touchstone of our judicial system. It promotes stability and
public confidence in the rule of law, denying lower
courts license to construe this Court’s decisions in an
overly crabbed manner. As particularly relevant
here, when the Court invalidates a law or government practice, finding that it furthers no valid state
interest based on facts common across jurisdictions,
that decision casts a pall over other materially identical laws.
That is what happened in Whole Woman’s Health.
The Court concluded that Texas’s law provided no
health or safety benefits based not on Texas-specific
facts, but instead on peer-reviewed studies, expert
testimony about generally applicable facts, and other
information about how admitting privileges work on
a national rather than state-wide basis. And while
the Court’s determination that the Texas law imposed an undue burden on women’s access to abortion
was based in part on evidence of abortion clinic closures in Texas, the Court gave no indication that the
result would be different in other jurisdictions. Rather, the Court identified numerous reasons why conditioning outpatient abortion care on hospital admitting privileges disqualifies competent providers and
burdens abortion access.
B. Louisiana’s admitting-privileges law is materially indistinguishable from the Texas law the Court
invalidated in Whole Woman’s Health.

 18
1. After an extensive review of the record, the district court concluded that both the Louisiana law’s
benefits and its burdens are no different from those
of the Texas law at issue in Whole Woman’s Health.
As with the Texas law, Act 620 confers no health
or safety benefit beyond existing law. Abortion in
Louisiana, the district court found, is extremely safe,
and there is no example of any instance in which admitting privileges would have avoided a negative
health outcome or resulted in better treatment. The
district court further found that Act 620, again like
the Texas law, served no credentialing function. Louisiana assures physician competence through other
means. And abortion providers in Louisiana are often denied privileges for reasons unrelated to their
competency.
The district court also found that the burdens of
Act 620 were, if anything, greater than those of the
Texas law in Whole Woman’s Health. The court determined that, while the Texas law resulted in closure of about half of that state’s clinics, Act 620 would
result in the closure of two of Louisiana’s three clinics, with only one physician left to provide abortion
care in the whole state. And the burden on Louisiana
women was magnified, the court found, because, for
various reasons, women in Louisiana already face especially high barriers to obtaining abortion care.
2. The Fifth Circuit erred in substituting its own
factfinding for the district court’s. A court of appeals
may not disregard a trial court’s findings of fact unless the findings are implausible in light of the entire
record. That standard is not remotely satisfied here.

 19
In particular, the court of appeals concluded for
two reasons that Act 620 had “minimal” benefits.
First, disagreeing with the district court, the Fifth
Circuit asserted that Act 620 serves a “credentialing”
function. This assertion defies not only the record
but also logic. Admitting privileges are designed to
verify a physician’s competence to perform inpatient
procedures—not outpatient procedures like abortion.
Indeed, the Fifth Circuit identified no evidence that
the physicians here who have been denied admitting
privileges were denied for competence reasons. Second, the court of appeals claimed that Act 620 would
conform the standards for abortion clinics to those of
ambulatory surgical centers. But Texas made exactly the same argument in Whole Woman’s Health,
and this Court nevertheless held that the Texas law
there provided no benefit at all.
The Fifth Circuit also concluded that any burden
imposed by Act 620 was, in contrast to the Texas law,
not “substantial.” Pet. App. 2a. That conclusion, too,
simply ignored the district court’s meticulous, recordbased analysis. To take just one example, the Fifth
Circuit concluded that the inability of physicians
other than Doe 1 to obtain admitting privileges was
not caused by Act 620, but by the physicians’ failure
to try hard enough. But that conclusion is contrary
to this Court’s analysis in Whole Woman’s Health,
which found causation based on the fact that many
Texas clinics closed when the law went into effect
(and more would close had it continued in effect)—
exactly the same as the evidence here. In any event,
the district court’s factfinding (and the record on
which that factfinding was based) makes clear that

 20
physicians who were unable to obtain admitting privileges made good faith efforts to do so. Indeed, the
district court monitored the physicians’ efforts to obtain privileges for a year and a half before reaching
that conclusion.
II. Even if the Fifth Circuit were correct that Act
620 imposes burdens that are less severe than the
Texas law imposed, Act 620 would still be unconstitutional.
A. The undue burden test requires courts to balance a woman’s liberty interest in determining
whether to carry her pregnancy to full term against
the state’s legitimate regulatory interests. It follows
that when a law serves no health or safety benefit,
any burden imposed by the law is by definition undue. And here, Act 620 fails that maxim. Just like
the Texas law in Whole Woman’s Health, Act 620 provides no benefit at all. At the same time, it indisputably imposes at least some burden on Louisiana
women’s right to pre-viability abortion.
B. Act 620 would still be unconstitutional were
the Fifth Circuit somehow correct that Act 620—in
contrast to Texas’s H.B.2—provided “minimal” benefits. Even a minimal benefit here would not outweigh
the burdens Act 620 would impose. Yet the Fifth Circuit refused to balance Act 620’s burdens and benefits
once it determined for itself that the law’s burdens
alone would not be “substantial.” Pet. App. 31a. This
legal holding is wrong. Whole Woman’s Health insisted that courts adjudicating challenges to abortion
regulations must always “consider the burdens a law
imposes on abortion access together with the benefits
those laws confer.” 136 S. Ct. at 2309 (emphasis

 21
added). Any other test, permitting laws to stand
when their burdens outweigh their benefits, would
effectively strip a woman’s right to abortion of its status as a fundamental right.
ARGUMENT
I. WHOLE WOMAN’S HEALTH CONTROLS
THIS CASE.
A. When, As In Whole Woman’s Health, This
Court Declares A Law Unconstitutional,
Materially Indistinguishable Laws Are
Invalid As Well.
1. Declaring A Law Unconstitutional Is Different
From Resolving A Purely Fact-Based Dispute.
“Adherence to precedent is ‘a foundation stone of
the rule of law.’” Kisor v. Wilkie, 139 S. Ct. 2400,
2422 (2019) (quoting Michigan v. Bay Mills Indian
Cmty., 572 U.S. 782, 798 (2014)). Such fidelity “‘promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.’” Kimble
v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015)
(quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)). Stare decisis thus functions as “a basic selfgoverning principle within the Judicial Branch,
which is entrusted with the sensitive and difficult
task of fashioning and preserving a jurisprudential
system that is not based upon ‘an arbitrary discretion.’” Patterson v. McLean Credit Union, 491 U.S.
164, 172 (1989) (quoting The Federalist No. 78, p. 490
(H. Lodge ed. 1888) (A. Hamilton)). The doctrine not

 22
only constrains this Court but also “discourag[es] adventurous second-guessing by widely dispersed subaltern judges.” Bryan A. Garner, Neil M. Gorsuch,
Brett M. Kavanaugh, et al., The Law of Judicial Precedent 30 (2016).
One reason stare decisis is “both wise and necessary,” id., is that this is a Court of limited resources.
After sufficient percolation, this Court’s typical practice is to select a single test case among many to resolve the legality of a given type of law or governmental practice. See, e.g., Florence v. Bd. of Chosen Freeholders of Burlington Cty., 132 S. Ct. 1510 (2012) (local laws permitting strip searches in jails); Brown v.
Entm’t Merchants Ass’n, 564 U.S. 786 (2011) (state
laws banning violent video games). When this Court
invalidates a law because it restricts constitutional
rights while failing (for reasons that are common
across jurisdictions) adequately to further a valid
state interest, that decision casts a pall over the constitutionality of all equivalent laws.
The Montana sequel to Citizens United v. Federal
Election Commission, 558 U.S. 310 (2010)—American Tradition Partnership, Inc. v. Bullock, 567 U.S.
516 (2012)—is exemplary. In Citizens United, the
Court held that a federal law restricting independent
corporate political expenditures violated the First
Amendment. The Court based its decision on broadly
applicable facts, including the value of political
speech in a democracy and the ill fit between the government’s asserted rationales and the restrictions
imposed. See Citizens United, 558 U.S. at 339-40,
352-53. Two years later, the Montana Supreme
Court addressed a state law that likewise prohibited

 23
independent corporate expenditures on behalf of political candidates. Declaring that “Citizens United
was a case decided upon its facts,” the Montana Supreme Court upheld Montana’s law based on purportedly “critical” local distinctions, including Montana’s
special history of corruption and the slight “regulatory burden” it imposed. W. Tradition P’ship, Inc. v.
Atty. Gen., 271 P.3d 1, 5-7 (Mont. 2011). This Court
summarily reversed in a single paragraph, declaring
that Montana’s arguments “fail[ed] to meaningfully
distinguish” Citizens United. Am. Tradition P’ship,
567 U.S. at 516-17.
Another illustration cements the point. In PressEnterprise Co. v. Superior Court, 478 U.S. 1, 12
(1986), the Court struck down a California law allowing magistrates to close preliminary criminal hearings, holding that these hearings were “sufficiently
like a trial” that the First Amendment required public access. Seven years later, the Puerto Rico Supreme Court considered a rule likewise allowing
closed preliminary hearings—a rule “similar in form
and function” to (and indeed, based on) the California
law the Court invalidated in Press-Enterprise. See El
Vocero de Puerto Rico (Caribbean Int’l News Corp.) v.
Puerto Rico, 508 U.S. 147, 148-51 (1993). The Puerto
Rico Supreme Court upheld the Puerto Rico rule,
stressing the “unique history and traditions of the
Commonwealth” and Puerto Rico’s “small size and
dense population.” Id. at 149. This Court summarily
reversed, holding that “[t]he decision below is irreconcilable with Press-Enterprise.” Id.

 24
2. Whole Woman’s Health Invalidated Texas’s
Admitting-Privileges Law For Reasons That
Extend Beyond Texas.
Like the Montana Supreme Court in American
Partnership and the Puerto Rico Supreme Court in
El Vocero de Puerto Rico, the Fifth Circuit viewed
Whole Woman’s Health as turning purely on Texas’s
particular “facts and geography.” Pet. App. 31a. This
was error. This Court invalidated Texas’s admittingprivileges requirement based in large part on nationally applicable facts about how those requirements
operate. The decision thus has stare decisis effect beyond the borders of Texas.
In particular, the Court’s finding in Whole
Woman’s Health that local admitting-privileges requirements have no health or safety benefits for
women who obtain an abortion did not depend on
facts unique to Texas. To the contrary, the Court’s
analysis centered on “peer-reviewed studies” and “expert testimony” about generally established medical
facts, and information supplied by medical organizations and professionals with firsthand expertise in
how admitting privileges work at hospitals nationally. Whole Woman’s Health, 136 S. Ct. at 2311-12.
Take Whole Woman’s Health’s endorsement of the
district court’s finding that the Texas law was a solution in search of a problem. Id. at 2311. The Court
upheld this finding after relying on data from across
the country demonstrating that abortion has a very
low incidence of complications requiring hospitalization. Id. The Court discussed “at least five peer-reviewed studies on abortion complications in the first
trimester[] showing that the highest rate of major

 25
complications—including those complications requiring hospital admission—was less than one-quarter of
1%.” Id. The Court also cited “[f]igures in three peerreviewed studies showing that the highest complication rate found for the much rarer second trimester
abortion was less than one-half of 1% (0.45% or about
1 out of about 200).” Id. Additionally, the Court
noted the universal fact that complications are most
likely to occur after the patient has left the clinic,
when she should seek care at the hospital closest to
her home. Id. This general data made the law a very
poor fit for helping women obtain better hospital
treatment for any abortion complications. Id.
To be sure, the Court concluded that H.B.2 imposed an undue burden on abortion access by weighing “the virtual absence of any health benefit” against
the clinic closures that H.B.2 “brought about” in
Texas. Id. at 2313. But nothing in the Court’s opinion suggests that, given the failure of admitting privileges to further women’s health and safety, the
Court expected this balance would be reversed in another state. On the contrary, the Court relied in part
on “general undisputed fact[s]” “to explain why the
new requirement led to the closure of clinics.” Id. at
2312. “In a word,” doctors in Texas (as elsewhere)
“would be unable to maintain admitting privileges or
obtain those privileges for the future, because the fact
that abortions are so safe meant that providers were
unlikely to have any patients to admit.” Id. Doctors
also would be precluded from providing abortions for
reasons “that have nothing to do with [the] ability to
perform medical procedures.” Id.

 26
B. Louisiana’s Admitting-Privileges Law Is
Materially Indistinguishable From The
Texas Law In Whole Woman’s Health.
There is every reason in this case for the Court to
demand fidelity to its three-year-old decision in
Whole Woman’s Health. The district court supervised
the compilation of a voluminous record and made detailed findings that there are no meaningful distinctions between this case and Whole Woman’s Health.
A majority of the Fifth Circuit panel set aside those
findings. But in doing so, it transgressed fundamental principles concerning the rule of law and appellate review.
1. The District Court Found That The Facts Of
This Case Are Materially Indistinguishable
From Whole Woman’s Health.
a. In Whole Woman’s Health, this Court found no
evidence that H.B.2 advanced women’s health or
safety in any way. 136 S. Ct. at 2311. The Court
credited the district court’s findings that “abortion in
Texas was extremely safe with particularly low rates
of serious complications” before H.B.2 and that Texas
was unable to present “a single instance in which the
new requirement would have helped even one woman
obtain better treatment.” Id.
Similarly, the district court here—citing expert
testimony, an array of other record evidence, and
“broad consensus”—found that, “in the decades before [] Act [620]’s passage, abortion in Louisiana” was
“extremely safe.” Pet. App. 218a-19a, 271a & n.54.
The court also noted that “[s]erious complications requiring transfer directly from the clinic to a hospital

 27
are extremely rare” in Louisiana. Id. 210a; accord
Whole Woman’s Health, 136 S. Ct. at 2311. Further,
there was no evidence in the record “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.” Pet. App. 271a.
Just as in Texas, the district court also found that
the record was devoid of any instance in which the
admitting-privileges requirement would have helped
even one woman obtain better treatment. Pet. App.
215a. All of Louisiana’s clinics have extremely low
complication rates. Id. 212a-14a. For instance, Hope
clinic, “which serves in excess of 3,000 patients per
year, had only four patients who required transfer to
a hospital for treatment” in “the last 23 years.” Id.
212a. Moreover, “[i]n each instance, regardless of
whether the physician had admitting privileges, the
patient received appropriate care.” Id.
As far as any alleged credentialing benefit, Whole
Woman’s Health credited the district court’s finding
that Texas physicians who provide abortions had in
fact been denied admitting privileges for reasons unrelated to their qualifications and competence. 136
S. Ct. at 2312-13 (citing experience of Dr. Lynn as one
example). This finding supported the Court’s conclusion that Texas’s law did “not serve any relevant credentialing function.” Id. at 2313 (emphasis added).
The Court further rejected Texas’s arguments that
(i) admitting-privileges requirements weeded out unqualified providers, (ii) Texas clinic hiring practices
could not be trusted because clinics had a “conflict of
interest,” and (iii) there was no alternative method to

 28
admitting privileges to assure physician competency.
See Br. of Resp’ts 33, Whole Woman’s Health, 136 S.
Ct. 2292 (citing trial testimony of Dr. James Anderson).
Just like Texas’s H.B.2, the district court found
that Act 620 “do[es] not serve ‘any relevant credentialing function.’” Pet. App. 272a (quoting Whole
Woman’s Health, 136 S. Ct. at 2313). As an initial
matter, the court found that all of the Doe physicians
were qualified—noting, for example, that all are
board-certified OB/GYNs or family medicine physicians with a decade or more of experience. See, e.g.,
id. 160a-65a, 244a, 249a. Further, although competency is “a factor” that hospitals consider, id. 171a,
the district court determined—exactly as did the
Court in Whole Woman’s Health—that hospitals
“may deny privileges or decline to consider an application for privileges for myriad reasons unrelated to
competency,” id. 172a. The district court also credited an array of evidence that the Does, in particular,
were repeatedly denied admitting privileges for reasons unrelated to their competency as outpatient providers, including bias against abortion providers. Id.
220a-51a.
Finally, the Court in Whole Woman’s Health concluded that H.B.2 did not provide a benefit beyond
preexisting law in any way, 136 S. Ct. at 2311, and
the district court here reached the same conclusion
about Act 620. Before the Act, Louisiana (like Texas)
required that physicians at an abortion clinic either
have admitting privileges or a transfer agreement
with a physician who had such privileges at a local
hospital. See id. at 2310; 25 Tex. Admin. Code

 29
§ 139.56(a)(1); former La. Admin. Code tit. 48, pt. I,
§ 4407(A)(3), available at 29 La. Reg. 706-07 (May 20,
2003). More generally, as in Texas, Louisiana law
regulated abortion clinics and their physicians in numerous respects. LSBME “ensures physician competency,” Pet. App. 272a, by, for example, conducting
criminal background checks and licensing physicians
to “ensure” that providers are “competent,” see
JA 802-03 (Louisiana’s expert); see also JA 1355-56
(LSBME’s 30(b)(6) witness). Abortion clinics also are
subject to health-related standards and inspections.
See, e.g., Pet. App. 194a.
In short, the district court concluded that the admitting-privileges law would “not improve the safety
of abortion in Louisiana” and would be an “inapt remedy for a problem that does not exist.” Pet. App. 215a.
b. The district court here made findings showing
that Act 620’s burdens would, if anything, be more
severe than the Texas law in Whole Woman’s Health
imposed. While the Court found that the Texas law
led to the closure of about half of the state’s clinics,
see Whole Woman’s Health, 136 S. Ct. at 2312, the
district court found Act 620 would force two of Louisiana’s three abortion clinics to close, leaving only
one physician in the state who could provide care,
Pet. App. 273a-74a. Consequently, 70% of women
who currently obtain abortions in Louisiana would no
longer be able to do so. Id. 256a.
The district court also found that the Act would
impose burdens on women beyond clinic closures, including longer wait times and greater driving distances, which would lead to delay in obtaining abortions and therefore a higher risk of complications, as

 30
well as increased risk of self-performed, or unsafe
abortions. Pet. App. 258a, 274a. Compare, e.g.,
Whole Woman’s Health, 136 S. Ct. at 2313 (relying on
increased distances of 150 to 200 miles); with Pet.
App. 262a (citing increased distance of 320 miles for
some Louisiana women).
What is more, the district court noted several
ways in which Louisiana women were less able than
Texas women to overcome barriers to abortion access.
Those included that Louisiana is the third poorest
state in the country, and likely has a disproportionately higher percentage of women seeking abortion
care who are living in poverty. Pet. App. 261a. Additionally, 75% of women seeking abortion in Louisiana—higher than the national average—already
have at least one child, meaning a greater proportion
would struggle to make childcare arrangements
while juggling long-distance travel for medical services. Id. 261a-62a. And, unlike in Texas, where
women living more than 100 miles from an abortion
clinic are excused from the state’s otherwise mandatory two-trip law, Louisiana law has no such exception; it requires all women to make at least two trips
to a provider before they can obtain an abortion, regardless of how far they have to travel. Id. 262a-63a.
Compare Tex. Health & Safety Code § 141.012(a)(4);
with La. Rev. Stat. § 40.1061.17(B)(3) (imposing
24-hour mandatory delay which necessitates two
trips to clinic).2
2 In 2016, Louisiana passed Act 97, which extended the 24hour mandatory-delay period to 72 hours. See 2016 La. Sess.
Law Serv. Act 97 (H.B.386) (codified at La. Rev. Stat.

 31
2. The Fifth Circuit Had No Warrant To Reject
The District Court’s Findings.
As this Court repeatedly has emphasized, an “appellate court cannot substitute its interpretation of
the evidence for that of the trial court simply because
the reviewing court ‘might give the facts another construction [or] resolve the ambiguities differently.’”
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844,
857-58 (1982) (quoting United States v. Real Estate
Bds., 339 U.S. 485, 495 (1950)). This rule promotes
“the public interest in . . . stability and judicial economy . . . by recognizing that the trial court, not the
appellate tribunal, should be the finder of the facts.”
Advisory Comm. Notes to Fed. R. Civ. P. 52; see also
Charles Alan Wright, The Doubtful Omniscience of
Appellate Courts, 41 Minn. L. Rev. 751, 764-71, 77882 (1957).
Accordingly, a district court’s factual findings
must govern on appeal so long as they are “plausible
in light of the record viewed in its entirety.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). All
the more so with respect to “determinations of credibility and demeanor,” which “lie peculiarly within a
trial judge’s province.” Davis v. Ayala, 135 S. Ct.
2187, 2201 (2015) (quotation marks omitted). And
appellate review is “even more deferential” still
where, as here, the trial court’s findings comport with
the findings of “multiple” other courts (including this
Court) in similar cases. Glossip v. Gross, 135 S. Ct.

§ 40:1061.17(B)(3)). This increase in mandatory delay, however, is not currently being enforced.

 32
2726, 2740 (2015); see also supra at 3, 8 (citing several other courts making or accepting similar findings).
The Fifth Circuit majority nevertheless took a decidedly different view of the record than the district
judge who presided over trial and the multiple other
courts that have assessed the constitutionality of admitting-privileges laws. It found that Act 620 actually confers a benefit—though a “minimal” one. Pet.
App. 39a. The majority also believed—contrary to
the district court’s assessment—that Hope “failed to
establish a causal connection” between Act 620 and
many of the burdens the district court identified. Id.
40a.
The Fifth Circuit erred on both sides of the ledger.
There is far more than “adequate legal and factual
support” in the record for the district court’s conclusions. Whole Woman’s Health, 136 S. Ct. at 2311.
The Fifth Circuit lacked the authority to reject the
district court’s factual findings.
a.

The Fifth Circuit Erred In Finding That Act
620 Confers Benefits.

The Fifth Circuit agreed with the district court
that Louisiana “did not provide any instance in which
a worse result occurred because the patient’s abortion doctor did not possess admitting privileges.” Pet.
App. 38a-39a n.56. The Fifth Circuit nonetheless
theorized that Act 620 is beneficial—albeit “minimal[ly]”—because it supposedly (i) performs a relevant credentialing function, and (ii) conforms standards for abortion providers to those for ambulatory

 33
surgical centers (“ASCs”). Id. 35a-39a. Both theories
contradict record evidence.
Credentialing. The Fifth Circuit concluded that,
“unlike in [Whole Woman’s Health], the record here
indicates that the admitting-privileges requirement
performs a real, and previously unaddressed, credentialing function that promotes the wellbeing of
women seeking abortion.” Pet. App. 38a-39a. But
credentialing was addressed in Whole Woman’s
Health, and this Court rejected those arguments. See
supra at 6. The Court noted that admitting privileges
are ill-suited to assess the competency of outpatient
abortion providers. See Whole Woman’s Health, 136
S. Ct. at 2312.
In any event, the record here flatly contradicts the
notion that Act 620 could somehow “promote[] the
wellbeing of women” through credentialing. Hospitals’ credentialing processes are designed to verify
physicians’ competency to provide inpatient hospital
care, not outpatient procedures. See, e.g., JA 104445, 1435-36, 1447-57. What is more, if credentialing
were really the point of Act 620, the 30-mile limitation in the law would “make[] little sense.” Pet. App.
127a; see also Planned Parenthood of Wis., Inc. v. Van
Hollen, 738 F.3d 786, 797 (7th Cir. 2013) (ostensible
credentialing “benefit does not require that the hospital . . . be within a 30-mile radius of the clinic”).
The Fifth Circuit nevertheless cited two specific
concerns regarding the vetting of physicians done by
clinics that it supposed vetting by hospitals might address. Both concerns are unfounded.

 34
First, the Fifth Circuit cited testimony from Doe 3
that he does not perform criminal background checks
on doctors who apply to his clinic. Pet. App. 22a, 35a36a. But that makes no difference, since all physicians in Louisiana must be licensed by LSBME, id.
272a, and that agency already conducts rigorous
background checks (including for criminal records) as
part of the licensure process, see supra at 12, 29.
Thus, the district court observed that LSBME already adequately “ensures physician competency
through licensing and discipline.” Pet. App. 272a.3
Second, the Fifth Circuit expressed fears over the
fact that a radiologist and an ophthalmologist might
perform abortions absent the admitting-privileges requirement. Pet. App. 22a, 36a n.53. But these fears
are medically unwarranted and legally baseless in
any event. Before Act 620, Louisiana law already
barred physicians other than OB/GYNs and family
3 Pursuant to Louisiana’s Physician’s Medical Practice Act,
LSBME is charged with protecting patients from the “unprofessional, improper, unauthorized, and unqualified practice of
medicine.” La. Rev. Stat. § 37:1261. LSBME fulfills that mission by verifying a physician’s qualifications and competency
prior to issuing a medical license. Id. § 37:1272. Moreover, if a
physician fails “to practice within the scope” of his “education,
training, and experience,” LSBME may “suspend,” “revoke,” or
“impose . . . restrictions on” that physician’s license. Id.
§ 37:1285(13). As Dr. Robert Marier, Louisiana’s expert in physician credentialing (and the former head of LSBME (JA 802)),
testified, LSBME “ensure[s] that patients receive high quality
medical care” and that “providers are competent.” JA 820-21.
If a physician is performing procedures that he is not “qualified”
or lacks the “training and experience to provide,” Dr. Marier testified that LSBME has the authority and responsibility to act.
JA 845-46.

 35
medicine doctors from performing abortions. See
2013 La. Sess. Law Serv. Act 259 (S.B.90) (codified at
La. Rev. Stat. § 40:1061.10(A)(1)).
Conformity. The Fifth Circuit also suggested that
Act 620 improved existing law because it conformed
standards for abortion facilities and ASCs in Louisiana, and that this “benefit” was not presented in
Whole Woman’s Health. Pet. App. 37a-38a. That contention is equally flawed.
To start, Texas defended H.B.2 on conformity
grounds, claiming through its expert that “hospital
credentialing” is “mandated in other areas of elective
surgical procedures” and that H.B.2 merely ensured
that “abortion-providing physicians are held to the
same standards as other physicians.” Joint App. 88384, Whole Woman’s Health, 136 S. Ct. 2292. Texas
also advanced all the “reasons” that the Fifth Circuit
attributed to conformity in defense of H.B.2, including “continuity of care,” “evaluating physician competency,” “reducing miscommunications between doctors,” and “preventing patient abandonment.” Br. of
Resp’ts 32-33, Whole Woman’s Health, 136 S. Ct.
2292. But the Court in Whole Woman’s Health was
not moved by that argument, and in fact rejected the
premise that abortion facilities must be regulated
like ASCs. 136 S. Ct. at 2315.
Besides, Act 620 does not make regulation of abortion more consistent with regulation of other procedures in Louisiana. Louisiana does not condition
physicians’ ability to perform any outpatient procedures, except abortion, on obtaining admitting privileges. For example, although Act 620 requires doctors who perform only medication abortions to obtain

 36
local admitting privileges, Louisiana law imposes no
such requirement on other doctors who prescribe only
medication. Nor does Louisiana require physicians
performing procedures similar to or less safe than
abortion—such as colonoscopy, hernia repair, and dilation and curettage—to obtain admitting privileges.
Pet. App. 208a-09a; see, e.g., La. Admin. Code tit. 46,
§ 7309(A)(2)(a)(ii) (physician performing office-based
surgery need not possess staff privileges if he “completed residency training in a specialty that encompasses the procedure performed in an office-based
surgery setting”). This is because Louisiana law generally regulates outpatient surgery based on the type
of anesthesia used, not based on the type of procedure
performed.4 And at the time of Act 620’s passage,
abortion providers in Louisiana were already “in conformity” with the state’s requirements for outpatient
facilities offering at most moderate anesthesia. See
supra at 34-35 (even before Act 620’s passage, Louisiana law required abortion providers to have completed OB/GYN or family medicine residency). In
other words, Act 620 does not “correct[] [a] regulatory

4 See generally La. Admin. Code tit. 46, § 7301 et seq. (officebased surgery regulations); La. Admin. Code tit. 48, § 4401 et
seq. (abortion facility regulations); La. Admin. Code tit. 48,
§ 4501 et seq. (ASC regulations). ASCs in Louisiana are allowed
to offer general anesthesia, and thus are subject to more stringent regulations. See La. Admin. Code tit. 46, § 7307. Abortion
facilities in Louisiana do not use general anesthesia and many
abortions in the first trimester do not involve a procedure at all
and are completed with only medication. Pet. App. 210a-11a.
Thus, of the various facility schemes in effect in Louisiana, the
ASC scheme is not an apt comparator.

 37
gap,” BIO 5, but creates a mismatch between abortion-related and other regulations.
b.

The Fifth Circuit Erred In Opining That Act
620 Would Not Burden Abortion Access.

As to Act 620’s burdens, the Fifth Circuit found
that no clinics in Louisiana would close and that Act
620 would not unduly burden even one woman. Pet.
App. 50a, 53a. Finding no “substantial” burdens, the
Fifth Circuit claimed that Whole Woman’s Health
does not control and that balancing Act 620’s burdens
and benefits was unnecessary. But the Fifth Circuit
was able to arrive at that conclusion only by ignoring
the district court’s factual findings, which were not
clearly erroneous. In particular, the Fifth Circuit offered three separate reasons for why Act 620’s burdens would be insubstantial. Each is legally and factually wrong.
Ability to obtain admitting privileges in Louisiana. According to the Fifth Circuit, “[a]lmost all”
Texas hospitals condition privileges on providers’
ability to admit a minimum number of patients per
year, while “[f]ew” Louisiana hospitals do. Pet. App.
2a; see also id. 41a-42a. Indeed, because patient-minimum requirements are supposedly “less prevalent”
in Louisiana, id. 42a, the Fifth Circuit found that admitting privileges are not “overly burdensome” there,
id. 47a, and that abortion providers could surely get
them, if only they put in the effort, id. 40a-41a.
This betrays a fundamental misunderstanding of
the record both in Whole Woman’s Health and here.
In Whole Woman’s Health, the Court did not find that

 38
almost all Texas hospitals impose rigid patient minimums. It sufficed that hospitals “often” impose such
requirements. Whole Woman’s Health, 136 S. Ct. at
2312 (quotation marks omitted). Moreover, while
some Texas hospitals imposed express patient-minimum requirements, many more impliedly imposed
the same requirement via other rules and responsibilities that only physicians who regularly admit patients could meet. See Br. for Med. Staff Prof’ls as
Amici Curiae 21-22, 31-33, Whole Woman’s Health,
136 S. Ct. 2292 (reviewing Texas bylaws admitted
into evidence).
Contrary to the Fifth Circuit’s supposition, the bylaws in the record here confirm that Louisiana hospitals are identical to their Texas counterparts. Nearly
all of Louisiana’s relevant hospitals have explicit or
implicit patient-minimum requirements.5 In fact,
implicit patient-minimum requirements were the
reason Does 1 and 2 had privileges applications de-

5 Patient-minimum requirements often take the form of clinical-data requirements (which require physicians to provide
data regarding patients they have admitted to the hospital) or
clinical-review or proctoring requirements (which require physicians to be evaluated based upon admitted patients). See Br.
for Med. Staff Prof’ls as Amici Curiae 21-22, 31-33, Whole
Woman’s Health, 136 S. Ct. 2292. Such requirements are ubiquitous in Louisiana hospital bylaws. See, e.g., ROA 9853, 10490,
10679 (clinical-data requirements); ROA 9191-92, 9253, 9269,
9281, 9373, 9376-77, 9390-91, 9493-94, 9633, 9672, 9685-89,
10309-11, 10417, 10421-22, 10436, 10495-98, 10610, 10647
(clinical-review or proctoring requirements); ROA 11634,
12135-37, 12142, 12597, 12613, 12818-21, 12824-26 (bylaws reflecting one or more of the same).

 39
nied. Pet. App. 224a-25a, 227a-29a. And Doe 6 relinquished his admitting privileges after leaving his
OB/GYN practice in 2005 because of an inability to
meet hospitals’ patient minimums. Id. 246a.
Moreover, the Fifth Circuit ignored (without explanation) the other obstacles to obtaining admitting
privileges the district court identified. The district
court acknowledged that hospital bylaws in Louisiana do not fully reflect “how privileges applications
are handled in actual practice.” Pet. App. 172a. And,
patient minimums aside, Louisiana hospitals’ privileging processes create “hardships and obstacles for
abortion providers” beyond patient minimums. Id.
180a. Those obstacles range from home or office
proximity requirements that cannot be met by abortion providers who travel significant distances to hostility on the part of hospital staff. Id. 172a-80a (cataloguing “myriad” reasons unrelated to competency
that abortion providers are denied privileges).
Burdens beyond those on Doe 1’s patients. The
Fifth Circuit acknowledged that Act 620 will be responsible for Doe 1’s inability to continue providing
abortions, but found that Does 2, 5, and 6 failed to
obtain admitting privileges not because of the Act but
because they did not pursue those privileges with sufficient vigor. Pet. App. 46a, 48a-49a. This reasoning
cannot be squared with Whole Woman’s Health or the
district court’s factual findings that all these physicians were denied privileges despite their good faith
efforts. Id. 181a, 249a-51a.
Whole Woman’s Health did not require proof of
each individual abortion provider’s efforts to obtain
privileges. Rather, the Court found that H.B.2

 40
caused the physicians’ inability to continue providing
abortions based on “direct testimony” from medical
providers and “plausible inferences to be drawn from
the timing of the clinic closures.” Whole Woman’s
Health, 136 S. Ct. at 2313. Evidence of causation
here is materially identical. Each abortion provider
in Louisiana without privileges and the administrator of his clinic provided direct testimony that Act 620
would require them to cease abortion care.6 Moreover, when Act 620 was in effect for nine days in February 2016, it halted most abortions in Louisiana.
Pet. 6-7 nn.5-7. That could not have been surprising—an identical law had already shuttered clinics in
Texas, and legislators considering Act 620 were repeatedly informed that the same thing would happen
in Louisiana. See supra at 4, 6-9.
In any event, the testimony of Louisiana’s abortion providers makes clear that Act 620 would cause
the clinic closures. And, unlike the potential superseding causes that were at play in Texas (e.g., cuts in
funding and restrictions on abortion providers that
had no relationship to H.B.2, see Whole Woman’s
Health, 136 S. Ct. at 2345 & n.18 (Alito, J., dissenting)), Louisiana abortion providers’ efforts to obtain
admitting privileges and comply with Act 620 are directly and inextricably linked to Act 620’s prohibitions. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.
830, 837 (1996) (defendant absolved of responsibility
for consequences only where “the injury was actually
6 See JA 741 (Doe 1); JA 377, 398, 418-19 (Doe 2); JA 26364, 1322 (Doe 3); JA 1136 (Doe 5); JA 1311 (Doe 6); JA 118,
1143-44 (Hope administrator); JA 1129-31 (Women’s and Delta
administrator).

 41
brought about by a later cause of independent origin
that was not foreseeable” (quotation marks omitted)).
Moreover, even if each individual provider’s efforts to obtain admitting privileges were relevant, the
Fifth Circuit had no basis to reverse the district
court’s factual finding that Does 2, 5, and 6 engaged
in good faith efforts. Pet. App. 46a; see also id. 225a26a, 244a-45a, 249a (district court’s finding). These
doctors sought privileges at ten hospitals and submitted applications to eight. Id. 225a-29a, 244a, 246a47a; JA 54. They did not apply to every hospital
within 30 miles of their clinics, but the district court
here found good faith in the physicians’ decisions to
concentrate on specific hospitals. Pet. App. 173a,
225a-26a, 244a-45a, 247a, 249a, 254a, 259a-60a. Doe
2 focused on hospitals where he thought he had the
best chance, excluding hospitals where he knew no
one on staff who could vouch for him. JA 405-06, 45255. Does 5 and 6 similarly prioritized hospitals because filing applications that are unlikely to be
granted carries significant professional risks.
JA 1134-35 (Doe 5); JA 1310-11 (Doe 6).7
The Fifth Circuit’s claim that the physicians
should have done more ignores that the district court
7 It makes sense that physicians would seek admitting privileges only where they believed they had the best chance to obtain them. Non-administrative denials of admitting privileges
are considered a stain on physicians’ records. Physicians are
required to disclose denials on future applications for privileges,
and denials are entered into a national practitioner database
that is posted online. See U.S. Dep’t of Health & Human Servs.,
National Practitioner Data Bank, https://www.npdb.hrsa.gov/
(last visited Nov. 23, 2019).

 42
directly oversaw the physicians’ applications for a
year and a half and decided to proceed to final judgment only after hospitals gave the abortion providers
the runaround during that whole period. Pet. App.
160a n.20; see id. 220a-48a. Indeed, the district
court’s finding that all the physicians made good
faith efforts to obtain privileges was so well-supported that the State did not even challenge it on appeal. See id. 68a-69a (Higginbotham, J., dissenting).
For example, Doe 2 was faulted by the Fifth Circuit for not applying to two hospitals, Pet. App. 43a,
but Doe 1 was rebuffed by these same hospitals for
reasons that would equally apply to Doe 2, id. 222a24a. Doe 5 was faulted for not finding a covering physician at three hospitals, id. 45a-46a, but all three
hospitals have other requirements in their bylaws
that he could never meet.8 And Doe 6 supposedly
should have applied to more hospitals, Pet. App. 46a,
even though Louisiana’s own expert conceded that
physicians like Doe 6 who exclusively provide medication abortions are “probably not” able to get privileges at any hospital, JA 884.

8 Women’s Hospital, for instance, requires physicians to
maintain a nearby office or residence, ROA 10414, and comply
with patient minimums, ROA 10416-17, 10436, 10443. Baton
Rouge General Hospital requires the physician to be located
near the hospital, ROA 10592-93, have a covering physician,
ROA 10637, and comply with patient minimums, ROA 10610,
10647. Lane Regional Medical Center requires physicians to be
located near the hospital or find a covering physician.
ROA 10659-61. Doe 5 testified that he could not comply with
these residency and patient-minimum requirements. See
JA 1134-36.

 43
The Fifth Circuit likewise erred in concluding
that the loss of Doe 3 cannot be attributed to the law.
Pet. App. 48a. The Fifth Circuit ignored the district
court’s finding that the loss of Doe 1, who performed
the vast majority of abortion services at Hope, would
“devastat[e]” Hope’s financial “viability,” which
would leave Doe 3 without a clinic. Id. 256a. And
even if Hope could hang on for some time, the district
court also found that Doe 3 “credibly” testified that
Act 620 would cause him to cease performing abortions because it would leave him as the last abortion
provider in his region, and thus expose his family to
increased harassment and threats of violence. Id.
241a-42a; see also JA 263-65. The Fifth Circuit’s decision dismissing such concerns as Doe 3’s “personal
choice,” Pet. App. 48a, is foreclosed by Whole
Woman’s Health. This Court held there that H.B.2
imposed burdens resulting from the combined effect
of the admitting-privileges requirement and the “hostility that abortion providers face” on physicians’ decisions. Whole Woman’s Health, 136 S. Ct. at 2312
(quotation marks omitted).
Effect on Doe 1’s patients. The Fifth Circuit
acknowledged that Act 620 did cause Doe 1’s inability to continue as an abortion provider, which means
that there would be 2,100 abortion patients per year
(Doe 1’s annual average) that he could no longer
serve. Pet. App. 50a-51a. But the Fifth Circuit found
that this would not burden Doe 1’s patients because
(i) Does 2, 5, and 6 in fact will be granted privileges
that they do not have, id. 42a-43a, 45a-47a, (ii) Doe 3
will continue to provide abortions because Doe 2
would be in Doe 3’s region so Doe 3 would no longer

 44
have security concerns, id. 47a-48a, 51a-53a, and
(iii) Does 2 and 3 together will care for all of Doe 1’s
patients, id. 51a-53a.
Even assuming, contrary to the district court’s express factfinding and the physicians’ own lived experience, see supra at 12-13, 29-30, 41-45, that the first
and second steps in the Fifth Circuit’s hypothetical
world were plausible, the third—that Doe 2 and Doe
3 would take up all of Doe 1’s patients—is both legally erroneous and factually absurd. As the Court
in Whole Woman’s Health expressly held, “medical
professionals are not fungible commodities.” 136 S.
Ct. at 2318. Courts thus cannot assume that physicians who are not shut down by a state could or would
simply work more to make up for others who are.
The facts here show why. The Fifth Circuit assumes that Does 2 and 3 will take on more patients
and work 50 weeks per year. Pet. App. 51a & n.62,
52a. Yet Doe 2 has merely an agreement with Hope
to provide back-up care when its primary physicians
are unavailable, id. 161a, 225a, and there is no record
evidence to support that at this later stage in his career he would accept a position as a primary physician, id. 51a-52a. And Doe 3 testified that, even if he
were willing, he cannot care for more abortion patients because he is already working about 70-80
hours per week. Id. 78a n.23, 88a n.33, 94a n.45. If
he increases his work at Hope, Doe 3 would need to
scale back his OB/GYN practice, which ironically
could cause him to lose the admitting privileges he

 45
would need to continue performing abortions. Id.
78a.9
II. ACT 620 IS UNCONSTITUTIONAL EVEN ASSUMING THE BURDENS HERE ARE LESS
THAN IN WHOLE WOMAN’S HEALTH.
Even if the Court disagreed with the district
court’s factfinding and believed that the burdens Act
620 would impose would be less extreme than in
Whole Woman’s Health, Act 620 still could not stand.
Under any fair reading of the record, Act 620 would
impose at least some meaningful burdens on women
seeking abortions. At the same time, the Act would
have no (or, at most, negligible) benefits. The “undue
burden” standard thus requires invalidation of the
Act.
A. A Law That Burdens The Right To Abortion With No Offsetting Benefit Violates
The Undue Burden Test.
1. The undue burden test is designed to “str[ike]
a balance,” Gonzales v. Carhart, 550 U.S. 124, 146
9 The Fifth Circuit also concluded that Act 620 would not
unduly burden a large fraction of Louisiana women. Pet. App.
53a. But were it not for the Fifth Circuit’s errors, the district
court’s conclusion that all women in Louisiana would be burdened—either because they are among the 70% of women who
would no longer have access to abortion, or because they would
face delays, greater travel distances, and longer wait times—
would have been indisputably correct, id. 255a-58a, and indistinguishable from the large-fraction determination in Whole
Woman’s Health, 136 S. Ct. at 2320. Even if the Fifth Circuit’s
burdens analysis were correct, its “large fraction” analysis
would still be wrong. See Pet. App. 98a-99a (Higginbotham, J.,
dissenting).

 46
(2007), between a “woman’s liberty to determine
whether to carry her pregnancy to full term,”
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
869 (1992), and legitimate regulatory interests. As
this Court explained in Casey, a woman’s choice to
terminate a pre-viability pregnancy—one of “the
most intimate and personal choices a person may
make in a lifetime”—is “central to personal dignity
and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment.” Id. at 851.
For this reason, a “woman’s right to terminate her
pregnancy before viability . . . is a rule of law and a
component of liberty” that courts “cannot renounce.”
Id. at 871. On the other hand, this Court has recognized that there are legitimate government interests
in regulating abortion, including “protecting the
health of the woman” who seeks an abortion. Id. at
846; see Roe v. Wade, 410 U.S. 113, 150 (1973).
Given this “balance,” abortion restrictions must
bring about benefits sufficient to outweigh the burdens they impose. Whole Woman’s Health, 136 S. Ct.
at 2310. As the Court noted in Whole Woman’s
Health, this framework is the essence of Casey. Id.
at 2309. Casey invalidated a spousal-notification requirement because its burdens outweighed its benefits. At the same time, the Court upheld a parentalconsent requirement because it concluded that its
benefits outweighed its burdens. Compare Casey,
505 U.S. at 887-98 (opinion of the Court) (performing
balancing with respect to a spousal-notification provision); with id. at 899-901 (joint opinion of O’Connor,
Kennedy & Souter, JJ.) (same balancing with respect

 47
to a parental-consent provision). And like Casey before it, Whole Woman’s Health insisted that courts
adjudicating challenges to abortion regulations must
“consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
136 S. Ct. at 2309; see also id. at 2310 (district court
“applied the correct legal standard” when it “weighed
the asserted benefits against the burdens”).
2. In light of the reality that admitting-privileges
laws confer no health or safety benefit, see supra at
5-6, 12, 24-29, 32-37, the burdens Act 620 imposes are
necessarily undue. The Fourteenth Amendment protects the right of a woman to obtain an abortion, requiring non-deferential judicial review of regulations
that implicate that “constitutionally protected personal liberty.” Whole Woman’s Health, 136 S. Ct. at
2309. And when a state law burdens the exercise of
an individual constitutional right without conferring
any countervailing benefit, upholding the law would
be inconsistent with the very existence of the right.
The canonical case of Harper v. Virginia State
Board of Elections, 383 U.S. 663 (1966), is instructive. There, the state required citizens to pay a $1.50
“poll tax” to exercise the right to vote. The tax was
paltry—imposing barely more than a de minimis burden on the vast majority of voters. And states have
good reason, and wide latitude, to regulate the electoral process. See, e.g., Anderson v. Celebrezze, 460
U.S. 780, 788 (1983). The Harper Court nevertheless
invalidated the poll tax because it conferred no legitimate benefit. “[F]ee paying” had “no relation to voting qualifications,” so the right to vote could not be
“so burdened or conditioned.” 383 U.S. at 670.

 48
The principle that constitutional interests cannot
be burdened for no good reason is probably obvious
enough that it requires little additional elaboration.
But Chandler v. Miller, 520 U.S. 305 (1997), affords
one more example. There, the Court considered a
Georgia law requiring candidates for political office
to take a urinalysis drug test within thirty days of
elections. The Court acknowledged that a urinalysis
is a “relatively noninvasive” procedure, inflicting a
modest burden on Fourth Amendment interests. Id.
at 318. But because there was “[n]othing in the record” showing that the health and safety threats the
state advanced were “real and not simply hypothetical,” the law was unconstitutional. Id. at 319.
Where “public safety is not genuinely in jeopardy, the
Fourth Amendment precludes the suspicionless
search, no matter how conveniently arranged.” Id. at
323.
The same logic applies here. Because Act 620 provides no benefits, it unduly burdens a woman’s Fourteenth Amendment right to pre-viability abortion.
B. Even If Act 620 Conferred A Minimal Benefit, The Law Would Still Be Unconstitutional.
The Fifth Circuit, of course, refused to accept the
reality and this Court’s precedent dictating that Act
620 would not confer any genuine health or safety
benefit. In the Fifth Circuit’s view, the admittingprivileges requirement “promotes the wellbeing of
women seeking abortion” to a “minimal” degree. Pet.
App. 39a. Yet the Fifth Circuit refused to balance the
benefits against the burdens on the ground that, in

 49
its view, the burdens alone were not “substantial.”
Id. 31a.
That refusal contravened the law. The “undue
burden” standard “requires that courts consider the
burdens a law imposes on abortion access together
with the benefits those laws confer,” Whole Woman’s
Health, 136 S. Ct. at 2309, and “weigh[] the asserted
benefits against the burdens,” id. at 2310. There is
no exception for laws that impose unjustified burdens, at least when those burdens are more than de
minimis. Indeed, the plain meaning of an “undue
burden” is a burden that outweighs its benefits. See
“Undue,” Black’s Law Dictionary (11th ed. 2019)
(“Excessive or unwarranted <undue burden> <undue
influence>.”).
No other conception of the undue burden test is
reconcilable with this Court’s precedent. The Court
has repeatedly upheld the right to pre-viability abortion as a fundamental constitutional right, subject to
more than “rational basis” review. Whole Woman’s
Health, 136 S. Ct. at 2309-10; see also, e.g., Casey, 505
U.S. at 846-53; Roe, 410 U.S. at 153-54. And when
heightened scrutiny applies, any impingement on the
constitutional right at issue that outweighs any countervailing benefit is impermissible.
Such is the case here. Under any fair assessment
of the facts, Act 620 imposes burdens on abortion access that are more than minimal. On the other hand,
the Act’s benefit, even in the Fifth Circuit’s skewed
view, is at most a minimal credentialing benefit.
Such a negligible governmental interest is not
enough under these circumstances to justify imping-

 50
ing a right that is truly “central to the liberty protected by the Fourteenth Amendment.” Casey, 505
U.S. at 851.
CONCLUSION
For the foregoing reasons, the decision below
should be reversed.

 51
Respectfully submitted,
Jeffrey L. Fisher
O’MELVENY & MYERS LLP
2765 Sand Hill Road
Menlo Park, CA 94025
Bradley N. Garcia
Samantha M. Goldstein
Kendall Turner
Jeremy Girton
O’MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006

November 25, 2019

Julie Rikelman
Travis J. Tu
Counsel of Record
Jessica Sklarsky
CENTER FOR REPRODUCTIVE
RIGHTS
199 Water Street
New York, NY 10038
(917) 637-3627
tjtu@reprorights.org
Anton Metlitsky
Yaira Dubin
O’MELVENY & MYERS LLP
7 Times Square
New York, NY 10036