Bench Memos

Law & the Courts

Certiorari Petition Challenges Standing of Abortion Providers

As you might recall, in early February the Supreme Court, by a vote of 5 to 4, granted the request of abortion providers to block a Louisiana law on hospital admitting privileges from taking effect until the Court rules on their petition for certiorari seeking review of the Fifth Circuit decision below. The abortion providers have now filed their certiorari petition (in Gee v. June Medical Services). With the briefing schedule having been extended over the summer, the Court will decide no earlier than October whether to grant the petition.

The abortion providers in this case might come to regret what they are asking for.

I’m very pleased to see that the state of Louisiana has filed a conditional cross-petition for certiorari that challenges the widespread lazy assumption that abortion providers have “third-party standing” to represent their patients’ interests. As the cross-petition explains, this assumption that benefits abortion providers—and that generates lots of abortion litigation—is an aberration from the third-party standing rules that apply to everyone else.

Specifically, the ordinary rule governing third-party standing is that (1) the party seeking to establish third-party standing must have a close relationship with the person who possesses the right, and (2) there must be a hindrance to that person’s ability to protect her own interest.

As to the first element: In this particular case, Louisiana explains, the doctor-patient relationship, far from being “close,” is “shallow, transitory, and, as to the issues in this case, rife with conflicts of interest”: “Plaintiffs oppose a health regulation intended to provide patients with a protection that Plaintiffs would not otherwise provide, against a factual backdrop showing that such protections matter.” Indeed, the clinic in this case “has a history of serious regulatory violations which the [Fifth Circuit] panel characterized as ‘horrifying.’” (See pp. 11-13 for more details.) The conflict of interest, Louisiana argues, should disqualify the plaintiff abortion providers from asserting third-party standing.

On the second element: The “whole history of constitutional litigation over abortion shows that women can and do assert their own alleged rights in court.”

(The abortion providers, of course, might well have their own rights to defend, but they get a huge benefit in litigation by invoking the rights of their patients.)

Louisiana’s cross-petition is conditional in that Louisiana is asking the Court to address this issue of third-party standing only if grants the abortion providers’ petition. I’m pleased to see that the signatories on the cross-petition include experienced Supreme Court practitioners Gene C. Schaerr and Erik S. Jaffe as well as Elizabeth B. Murrill, Louisiana’s excellent solicitor general.

If the Court were to grant the cross-petition and rule against the abortion providers on third-party standing, it could eliminate much of the abortion litigation that besets the federal courts.

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