July 7, 2020

Milbank Filed Amicus Brief in Supreme Court Case Striking Louisiana Abortion Law


In a highly anticipated decision on abortion rights, the United States Supreme Court ruled on June 29, 2020 that a Louisiana law requiring doctors who perform abortions to have admitting privileges at a nearby hospital is unconstitutional. A Milbank LLP pro bono team filed an amicus brief in December 2019 in support of June Medical Services LLC in the case, June Medical Services LLC v. Russo, urging the Court to reverse the 2018 decision by the US Court of Appeals for the Fifth Circuit that upheld the Louisiana law.

The amicus brief was filed on behalf of Tort Law Scholars, a group of legal scholars and academics specializing in tort law. The brief argued that the Fifth Circuit’s 2018 holding, which found that June Medical Services LLC failed to establish a causal connection between the Louisiana law and its burden on abortion access, applied an “erroneous causation analysis” that is contrary to established principles of tort law.

The brief also outlined how the Fifth Circuit’s causation analysis was inconsistent with Supreme Court precedent, citing the Court’s previous rulings in abortion cases including Whole Woman’s Health v. Hellerstedt, a 2016 case that examined an identical admitting-privileges requirement in Texas that shuttered half of the state’s abortion providers. Milbank filed an amicus brief in support of the petitioners in this 2016 case as well, similarly arguing that the Court should overturn the restrictive state law that created unconstitutional limits on safe, legal abortions.

The Supreme Court’s recent 5-4 ruling in favor of June Medical Services LLC found that, under the precedents set forth by the Court’s earlier abortion-related cases, "'[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right' and are therefore ‘constitutionally invalid.’”

The Milbank pro bono team was led by partner Gary Frischling with associates Kim Goldberg, Megan McGuiggan and Maggie Chou.

Mr. Frischling said: “As outlined in our brief, the Fifth Circuit’s causation analysis was incorrect, and the ruling stood to severely limit access to abortion clinics and cause direct and foreseeable harm to pregnant patients across the state of Louisiana. We are incredibly pleased that the Supreme Court overturned the Fifth Circuit’s decision and found Louisiana’s admitting-privileges law unconstitutional."