Procedural Issue Could Scuttle Abortion Clinic Challenges (1)

March 4, 2020, 9:50 AM; Updated: March 4, 2020, 6:10 PM

A procedural question in the U.S. Supreme Court’s first abortion-related case since President Donald Trump’s two nominees took the bench could signal a “shocking reversal,” reverberating beyond the hot-button issue of abortion.

Court watchers Wednesday looked for any hint on whether the justices are inclined to chip away at abortion rights. But the justices also seemed interested in whether abortion providers even have standing to challenge this and other restrictions.

In June Medical v. Russo the court is considering a Louisiana law that requires abortion doctors to get admitting privileges at local hospitals. The court in 2016 struck down a substantially similar Texas law, saying the law didn’t provide any of the purported health benefits.

In at least eight previous cases, the court has allowed doctors to challenge abortion restrictions on behalf of their patients under a doctrine called third-party standing, Justice Stephen Breyer said. “So if we didn’t [find standing] in this case, it would require either directly or indirectly overruling eight cases of this court,” he said.

If the court does reverse course, it could mean the end of many, if not all, legal challenges to state abortion restrictions, said Vanderbilt University Law School professor Suzanna Sherry.

Moreover, third-party standing applies “in a wide range of other areas,” including teachers on behalf of their students, sellers advocating for their purchasers, and lawyers asserting rights for their clients, said SCOTUS advocate Elaine J. Goldenberg, of Munger, Tolles & Olson. She authored an amicus brief against the Louisiana law.

“A ruling against third-party standing here would surely reverberate in those other contexts as well,” Goldenberg said.

Such a decision would be “highly disruptive” in the abortion context, said Michelle Banker, senior counsel at the National Women’s Law Center. “It’s hard to predict just how damaging it would be,” she said.

Adverse Interests

But Louisiana Solicitor General Elizabeth Murrill said the court shouldn’t “make abortion providers unique among federal plaintiffs” when it comes to standing. Instead the court should “reaffirm that even abortion providers must comply with the same rules as all the other litigants,” Murrill said.

In court, Justice Samuel Alito noted that the general standing rule is that litigants cannot sue to protect another person’s rights.

It’s “a real anomaly that abortion clinics have been allowed to invoke the rights of their prospective patients in challenging health regulations that would benefit those patients,” Ed Whelan, president of the conservative Ethics & Public Policy Center, said prior to Wednesday’s arguments.

Alito went further, saying that it’s “amazing” to think that clinics can sue to challenge a law meant to protect their patients.

Here the doctors’ interests and those of their patients “are not necessarily aligned,” said Department of Justice attorney Jeffrey Wall. The DOJ argued as an amicus in support of the Louisiana law.

“One is the interest of for-profit providers and not being regulated in particular ways,” Wall said. “The other is the interest of women in their own health and safety.”

But there really is no plausible conflict between the doctors and their clients, said Julie Rikelman of the Center for Reproductive Rights, who represents clinic and doctors challenging the law. She cited the court’s 2016 ruling saying that admitting privileges laws don’t have any safety benefit.

Moreover, Justice Sonia Sotomayor got Wall to agree that there was probably at least one women in Louisiana who felt burdened by the law. So the doctors aren’t adverse to those women, Sotomayor said.

Then why didn’t those women challenge the law themselves? Alito wanted to know.

Rikelman said that was because the state didn’t object to standing until it got the Supreme Court, calling it an “eleventh-hour objection.”

Justice Ruth Bader Ginsburg noted that the plaintiffs challenging the law may have been able to find such a women, had they been given timely notice of the objection to standing.

In the end, Breyer conceded that there were “good arguments” on both sides of the standing question. “But why depart from what was pretty clear precedent?” Breyer asked.

Odd Result

Speaking before the arguments on Wednesday, University of St. Thomas School of Law professor Teresa Collett said she’s “guardedly optimistic” that the court will pull back on third-party standing here. Whelan was more certain the court will “correct the anomaly.”

Chief Justice John G. Roberts Jr. is very cautious when it comes to the court’s reputation as an apolitical actor, Collett said. Deciding a highly contentious case on procedural grounds could be more appealing to some justices, she added.

Roberts didn’t tip his hand during arguments about the standing question, asking only about the merits of the underlying dispute. Justice Brett Kavanaugh, too, only asked about the merits. Justice Clarence Thomas and Neil Gorsuch didn’t ask any questions at all.

“But finding no standing here for the doctors would lead to a really odd result,” Goldberg said during her preargument interview. It’s “the doctors, and not the patients, who are subject to the regulations in question and therefore subject to punishment for violating the regulations,” she said.

Whelan noted that there’s “no question” doctors would still have first-party standing to challenge laws affecting their rights.

Those cases, however, are harder for them to win as the claims are subject to a more deferential standard of review, he said. States generally have more leeway to regulate licensed professionals.

(Updates with excerpts from Wednesday's oral argument.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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