Tort law and abortion rights intersect rarely enough that an oral argument set for Wednesday, March 4 at the Supreme Court feels momentous. This occasion brings me to The Faculty Lounge as a guest blogger, June Medical Services LLC v. Russo on my tort-minded mind.
In June Medical Services LLC, the Supreme Court has agreed once again to judge a maneuver that enemies of abortion rights have put to effective use. These foes don’t use criminal law to build their barrier. They can’t, not yet. Instead they impede access to abortion with a regulation that resembles a safety measure but functions to make people less safe.
You might have thought this post-Casey interference to reproductive freedom got killed four years ago in Whole Woman’s Health v. Hellerstadt. But as of now it’s undead. With Anthony Kennedy—not a strong supporter of this constitutional right but a majority voter in Whole Woman’s Health—having been replaced by a successor whose record on abortion is not encouraging, June Medical Services LLC looks like another threat to what I have argued is a common law liberty.
(I expanded on that thesis about the common law in a book. Participants in this online symposium on The Common Law Inside the Female Body engaged with my claim about abortion. You should read them.)
Back to the intersection of abortion and tort: Among the filings that reached the Court at the end of 2019 is Brief of Tort Law Scholars as Amici Curiae in Support of June Medical Services L.L.C. et al. I’m proud to be one of its eleven signers. (In this post I speak only for myself.) Led by Michele Goodwin and represented by the Los Angeles office of Milbank LLP, amici contend that the Fifth Circuit got its causation analysis wrong.
Causation in legal doctrine is found away from tort, of course: our specialty doesn’t own the issue. But we in tort care a lot about it because more than most fields, tort needs causation to connect its remedies with an antecedent. Unlike contract, tort typically addresses disputes between plaintiffs and defendants who never volunteered to be together. Unlike public law, tort empowers an individual to engage the state’s monopoly of force toward her own ends. Tort would be dangerous if it treated causation casually.
The Fifth Circuit has done just that. Siding with the state of Louisiana, this court in a 2-1 decision ruled that the impact of an anti-abortion regulation had been “severed by an intervening cause.” The intervention the court named was the failure of certain physicians to make an application for hospital privileges.
June Medical Services LLC in this appellate incarnation has approved a law with no beneficial effect (unless one thinks that blocking lawful abortion is good for health, a motive for state action that Roe v. Wade rejected and that medical evidence decisively refuted in 2012) and that in both design and function thwarts the exercise of a constitutional right. To reach this result, the court reasoned that someone else’s conduct broke a causal link between the regulation and the denial of access to abortion. Au contraire, as one might hear in the state’s French Quarter. That’s not how superseding cause works.
To be sure, ample decisional law has agreed with defendants that the conduct of someone who wasn’t them and that occurred after they acted (or failed to act) broke the connection between their act or omission and a consequence. But the analysis necessary to support that conclusion has always been clear. To qualify for superseding cause, the conduct must be independent of the initial act or omission. This conduct also must be unforeseeable.
Louisiana cannot say with a straight face that actions or omissions that it wants to blame on abortion providers were independent of the interference it imposed. As for foreseeability, these rule-writers had to have known in advance that it would be burdensome for physicians to obtain what the state demanded of them. From well over a thousand miles away, I have no trouble seeing that consequence. What happened to abortion access in Louisiana was far from unforeseeable. I’d call it premeditated.
The dissent in June Medical Services LLC, Fifth Circuit version, gives us readers a good paraphrase of what needs reversing. Judge Patrick E. Higginbotham writes that his two colleagues on the panel said they think that “because private actors (the physicians) have not tried hard enough to mitigate the effects of the act (a conclusion contradicted by the district court's factual findings), those effects are not fairly attributable to the act.” Here’s hoping that Wednesday will bring a question or two about that wrongheaded contention.
Great post, Anita. It's good to have you in the Lounge.
Steve
Posted by: Steve L. | March 02, 2020 at 09:21 AM