U.S. Supreme Court Cites Torts 2d
In a dissenting opinion delivered in June Medical Services, L.L.C. v. Russo, Nos. 18-1323 and 18-1460 (June 29, 2020), U.S. Supreme Court Associate Justice Samuel A. Alito cited the Restatement of the Law Second, Torts.
In that case, abortion clinics and abortion providers challenged Louisiana’s Act 620, which required abortion providers to hold “active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” The plaintiffs argued, among other things, that the Act was unconstitutional because it placed an undue burden on the right of their patients to obtain an abortion. On remand in light of Whole Woman’s Health v. Hellerstedt, 579 U.S. __, 136 S. Ct. 2292 (2016)—in which the Court invalidated a Texas statute that was nearly identical to Louisiana’s Act 620—the U.S. District Court for the Middle District of Louisiana granted the plaintiffs’ request for a permanent injunction, concluding that the Act imposed an undue burden and was therefore unconstitutional. The U.S. Court of Appeals for the Fifth Circuit reversed, rejecting many of the district court’s findings and concluding that the Act did not impose a substantial burden on Louisiana women seeking an abortion.
The U.S. Supreme Court reversed the Fifth Circuit’s judgment, holding that the Act was unconstitutional. The plurality opinion, written by Associate Justice Stephen G. Breyer, and joined by Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, determined, inter alia, that the district court’s significant factual findings—including that the plaintiff doctors were not able to obtain admitting privileges under the Act despite their good-faith attempts—had “ample evidentiary support” and were not “clearly erroneous.” The plurality upheld the district court’s “related factual and legal determinations” and “ultimate legal conclusion” that the Act violated the U.S. Constitution. Relying on principles of stare decisis, Chief Justice John G. Roberts concurred in the Court’s judgment that the Act was unconstitutional. Chief Justice Roberts reasoned that the district court’s findings were not clearly erroneous, and that because the Act’s admitting-privileges requirement imposed a burden on access to abortion “to the same degree” as that imposed by the nearly identical Texas law invalidated in Whole Woman’s Health, the Act could not stand.
In his dissenting opinion, Justice Alito argued, among other things, that “the evidence in the record fail[ed] to show that the doctors made anything more than perfunctory efforts to obtain [admitting] privileges” and that, “under the correct legal standard, [the plaintiffs] failed to prove that Act 620 would drive” the doctors who perform abortions at the clinics in Louisiana out of the abortion practice. One such doctor, “Doe 3,” who maintained privileges at two hospitals, “stated that he would stop performing abortions if, as a result of [the Act], he was left as the only abortion doctor in the northern part of the State.” Justice Alito disagreed with the plurality’s suggestion that, “if Doe 3 were to leave abortion practice, it would be attributable to Act 620,” stating that “even the most ardent opponents of Act 620 did not contemplate that the law would prompt abortion doctors who satisfied the law’s requirements to quit.” Citing Restatement of the Law Second,
Torts §§ 440 and 442, he reasoned that “if this outcome was not foreseeable at the time of enactment, it is hard to see how the District Court could blame Act 620 for causing Doe 3 to leave abortion practice.”
Read the full opinion here.
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