Bench Memos

Law & the Courts

Pending Supreme Court Abortion Case: Against Aberrational Third-Party Standing

On March 4, the Supreme Court will hear oral argument in June Medical Services v. Gee. In that case, the Court has granted both the petition of abortion providers challenging a Louisiana law on hospital admitting privileges and the state of Louisiana’s cross-petition challenging the proposition that the abortion providers have “third-party standing” to represent their future patients’ interests.

Louisiana and its amici—including the United States—have just filed their briefs in support of Louisiana’s cross-petition on third-party standing and in response to the substantive attacks on the Louisiana law. In this post, I will highlight key arguments against third-party standing. In a second post, I hope to address the substantive defenses of the Louisiana law.

For decades, the federal courts have simply assumed that abortion providers have third-party standing to assert the constitutional rights of their patients. But when abortion providers bring constitutional challenges to health-and-safety regulations that protect abortion patients, there is an inherent conflict of interest between abortion patients and the abortion providers that purport to be acting on their behalf.

All of this is powerfully explained in Louisiana’s excellent brief, which points out that the plaintiffs in this case—an abortion clinic and two doctors—while purporting to represent (undesignated) abortion patients, are challenging a Louisiana law that is “designed to protect those very patients from unscrupulous and incompetent abortion providers”:

Plaintiffs fail to meet the difficult test for “third-party standing” to assert someone else’s rights. There is no reason to believe Plaintiffs’ patients are hindered in challenging the law if they wish to do so; women seeking abortions have litigated their own constitutional challenges many times before. And there is a serious conflict of interest between Plaintiffs—who have a lengthy history of what the Fifth Circuit called “horrifying” health and safety violations—and the patients for whom they purport to speak. Under normal standing rules, Plaintiffs’ attempt to invoke third-party standing must fail as a matter of law.

In its fuller argument, Louisiana argues, first, that third-party standing is properly understood as a component of the federal courts’ limited jurisdiction under Article III of the Constitution, rather than as a matter of “prudential” jurisdiction. (Brief at 26-30.) But, however it is conceived, third-party standing should have the same requirements in abortion cases that it has in other litigation. That means that a party asserting the rights of a third party should have to show both that it has a close relationship with that third party and that the third party is hindered in its ability to protect its own interests. Instead, the lower courts, with little or no analysis, have widely assumed that abortion providers are exempt from the usual limitations on third-party standing. (Pp. 31-35.)

Louisiana addresses in particular the Court’s plurality opinion in Singleton v. Wulff (1976). That case involved limits on Medicaid funding of abortion, so “patients’ and physicians’ interests were apparently aligned.” (That is, patients and physicians shared an interest in having the funding limits removed.) Here, where “abortion providers challenge health protections designed to benefit their patients,” the plurality’s position is readily distinguishable. Plus, the analysis in the Wulff plurality “is inconsistent with modern doctrine” on the close-relationship and hindrance elements. (Pp. 36-38.)

As Louisiana explains, there is no evidence, and no reason to believe, that abortion patients are hindered from challenging the Louisiana law. (Pp. 39-41.) And far from having a close relationship with their patients, the record illustrates that plaintiffs have several conflicts with them: they consistently ignore their patients’ interest in medical safety (pp. 42-44); they sabotage their own hospital-privileges applications (pp. 44-45) and attack state interpretations favorable to privileges approval (pp. 45-46); and they work to prevent investigation and prosecution of lawbreaking that harms abortion patients (pp. 46-47).

Louisiana also argues that the Court should address plaintiffs’ defects in third-party standing, both because objections to such defects can’t be waived or forfeited (pp. 49-51) and because the matter was in any event addressed by the Fifth Circuit (pp. 52-53).

In its amicus brief, the United States argues forcefully that plaintiffs’ challenge should be dismissed for lack of third-party standing. The Solicitor General’s analysis of third-party standing (pp. 5-9) and of plaintiffs’ failure to satisfy it (pp. 10-13) is consistent with Louisiana’s. The Solicitor General also argues that the Court “can and should” reach the third-party standing issue (pp. 13-16), even as its assessment of some of the subsidiary issues on this question differs from Louisiana’s.

An amicus brief filed by the Family Research Council makes another striking argument: It points out that even if the plaintiff abortion providers could somehow satisfy the test for “third-party standing,” there is no cause of action that allows abortion providers to sue state officials who violate the constitutional rights of their patients. The text of 42 U.S.C. § 1983, for example, permits lawsuits only by persons who have suffered a violation of their own federal rights, and it makes no allowance for third-party litigation. (Pp. 8–10). And the text of the Declaratory Judgment Act, 28 U.S.C. § 2201, allows courts to declare the rights only of the “party seeking such declaration,” rather than the rights of individuals not before the Court. (Pp. 10–11). The plaintiff abortion providers cannot identify any federal statute that would allow them to sue on behalf of third parties, so they therefore lack “statutory standing” even if they are able to establish Article III standing and “prudential” standing. As the amicus puts it, “Even when litigants can establish Article III standing, they must also point to a law that gives them the right to sue.” (P. 2 (emphasis in original).)

In sum, these briefs make a powerful case that the abortion providers lack standing coming and going. They cannot satisfy the Court’s test for third-party standing, and even if they could there is no cause of action that would allow them to assert the rights of non-parties to the lawsuit.

Justice O’Connor famously observed in 1986 that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” For too long, the federal courts have given abortion providers special dispensations from the basic rules of federal practice. June Medical Services gives the Roberts Court an opportunity to bring an end to that regime.

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