Last week, the Supreme Court heard oral arguments in June Medical Services v. Russo, a case involving an admitting privileges law passed by the Louisiana legislature that is identical to the Texas admitting privileges law struck down as unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016. Political speculation has centered around whether the Supreme Court’s new composition will use this case to revisit Whole Woman’s Health and its further interpretation of Planned Parenthood v. Casey’s “undue burden” standard, which serves as the current standard for determining whether or not restrictions on abortion pre-viability are constitutional. What has received far less attention, however, is whether the Supreme Court will be persuaded by a cross petition from the Louisiana government that questions the standing of the plaintiffs in this case, namely various abortion providers in that state.
The Supreme Court has interpreted Article III of the Constitution to require that plaintiffs have “standing” to sue in federal court. Plaintiffs have standing if they can show: (1) a real, concrete injury, (2) that the injury is traceable to the defendant’s conduct, and (3) that it redressable through a favorable judicial ruling. In this case, the state of Louisiana is arguing that abortion providers do not have legal standing to challenge the admitting privileges requirement on behalf of their patients, also known as “third-party standing”, because of “conflicts of interests” (e.g. financial incentives to provide as many abortions as possible) and “insufficiently close relationships with their patients”.
Third-party standing permits another person or organization to assert the rights of an individual when their interests are closely aligned and it is difficult for that person to assert his or her own rights. Cases challenging the constitutionality of abortion restrictions frequently rely on third-party standing because pregnancy is time-limited and litigation is likely to outlast pregnancy and women seeking abortions may have concerns about their privacy, among other reasons. In fact, the Supreme Court explicitly established that physicians can bring lawsuits on behalf of their patients in cases of abortion in Singleton v. Wulff. Third-party standing, moreover, is relied upon in cases involving access to other health services, such as contraception and mental health services, as well as education and housing.
Yet the government of Louisiana’s petition arguably goes beyond the issue of third-party standing, as noted by several amicus briefs submitted by law professors with expertise in constitutional and federal courts law. The physicians themselves meet Supreme Court’s standing requirements for bringing a federal litigation against the law at issue in this case: “They are doctors and clinics who face imprisonment, civil liability, license revocation and fines under Louisiana’s admitting-privileges law. Louisiana’s admitting-privileges law (as enforced by Rebekah Gee in her capacity as Secretary of the Louisiana Department of Health) causes those injuries, and a court order enjoining the law would redress them.” In other words, Louisiana is also arguing that a concrete injury in fact is no longer sufficient to satisfy the standing test in abortion cases.
The Supreme Court’s treatment of both standing generally and third-party standing could dramatically change the way in which state abortion restrictions are reviewed by the courts going forward, with potentially devastating consequences for the physicians who provide abortion services and the women who seek them.
