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Pro-choice demonstrators hold up signs during a group chant outside of the U.S. Supreme Court as justices hear a major abortion case on the legality of a Republican-backed Louisiana law that imposes restrictions on abortion doctors, on Capitol Hill in Washington, U.S. REUTERS/Tom Brenner
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(Reuters) – Abortion providers in Louisiana are an endangered species, both in their rarity and, according to their lawyers, because of the potential threat of physical harm they face from abortion opponents.
But that’s no justification for maintaining a seal on already-public documents that might expose their identity, based on the 5th U.S. Circuit Court of Appeals' ruling on Friday in June Medical Services LLC v. Phillips, a case in which three pseudonymous doctors are challenging seven Louisiana laws regulating abortions.
The 5th Circuit panel – Judges Jerry Smith, Jennifer Elrod and Andy Oldham – ruled that U.S. District Judge Brian Jackson of Baton Rouge abused his discretion in a broad sealing order that encompassed documents already available to the public, such as an arrest record and an obituary about the founder of a clinic that provides abortions. The appeals court vacated the sealing order and gave Jackson 30 days to reevaluate the documents in the case to determine which, if any, must be sealed. The court was clear that Jackson may not seal or even order redactions in any document that is otherwise accessible to the public.
Those materials “already belong to the people,” wrote Elrod. “How perverse it would be to say that what was once public must become private — simply because it was placed in the courts that belong to the public. We will abide no such absurdity.”
I’m all for public access, as I’ve said many, many times. But it’s worth looking at the abortion doctors’ arguments for why even already-public information can be dangerous when it’s docketed in a highly charged case.
The June Medical case before the 5th Circuit is distinct from, but related to, the clinic’s litigation over Louisiana’s requirement that abortion providers must be authorized to admit patients to hospitals. The U.S. Supreme Court struck down that state regulation in June 2020. The three doctors who brought the ongoing suit asked in 2016, when they filed the case, to litigate under pseudonyms, citing harassment and threats they had already been subjected to. The trial court granted the motion. Louisiana has not since sought to force the doctors to litigate under their real names.
In two discovery disputes – one over Louisiana’s attempt to subpoena records from the state’s board of medical examiners and another over the state’s request to unseal explosive deposition testimony from one of the doctors – Louisiana filed supporting documents that the state believed to be outside of the scope of the court’s protective order. (Technically, to comply with court orders, Louisiana was required to file pro forma requests to seal the documents but the state’s motions urged the court to deny those requests.)
The documents, as the 5th Circuit recounted, included publicly accessible court records from other cases; articles from Rolling Stone and the New York Times; a book excerpt; and blank consent forms from a closed clinic. Despite Louisiana’s arguments that the materials should be docketed publicly, Jackson issued three successive orders sealing the material, finding that the documents might put the plaintiffs at risk.
The trial judge’s final sealing order in November 2020 – which is itself under seal – followed a 2019 warning from the 5th Circuit. Louisiana had petitioned the appeals court for mandamus after Jackson’s second sealing order, arguing that it needed to use some sealed documents in Supreme Court briefing in the related June Medical case. The 5th Circuit ruled that mandamus was not appropriate because the sealing order was directly appealable. But in a concurrence, Elrod described Jackson’s protective order as “remarkably overbroad,” and said the trial judge had failed in his order sealing a doctor’s deposition testimony to account for the “vital public interest” in information about health and safety.
Jackson’s third sealing order nodded to Elrod’s warning by allowing some categories of documents, including newspaper articles to be filed publicly with redactions. But he remained leery of docketing anything that could identify the doctors.
The doctors’ lawyers from Jenner & Block and the Center for Reproductive Rights explained the risk in their brief to the 5th Circuit. Documents mentioning specific doctors, they said, could allow “hostile” abortion opponents to surmise the identity of the plaintiffs in the case, despite their pseudonyms.
“The issue is not whether someone who already knows the physicians' names or other personally identifying information could dig up publicly available information to confirm their status as abortion providers,” the brief said. “It is whether publicly confirming their identities and their connection with this case would provoke people who do not yet know their identities to harass, intimidate, or harm them.”
Unfortunately for the doctors, that argument didn’t seem to register with the 5th Circuit, which decided the case without oral argument. Friday’s decision did not even mention the risk that docketing already-public material in this case could result in unmasking of the plaintiffs. The court’s sole focus was Jackson’s erroneous explanation that the documents fell under the scope of his original protective order. That was not, the appeals court said, a “valid legal basis for sealing.”
The Center for Reproductive Rights said in an email statement that the trial judge had a good reason for his sealing order. "Attacking the reputation of abortion providers has long been a tactic in Louisiana’s relentless strategy to eliminate abortion services," the statement said. "That’s what they are attempting here."
Louisiana Deputy Solicitor General Scott St. John said by email that the state takes seriously the public’s right of access to the courts.
“Justice cannot be served unless the truth is allowed to be brought to light,” he said. “It is unfortunate the 5th Circuit had to make clear what should be obvious: the courts belong to the public, and public documents cannot be sealed.”
Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.
Read more:
In major ruling, U.S. Supreme Court strikes down strict Louisiana abortion law
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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.
Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.
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