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Symposium: A long-awaited opportunity to close the loophole on third-party standing

Denise Harle is legal counsel with the Alliance Defending Freedom Center for Life (@AllianceDefends), which filed an amicus brief on behalf of Louisiana legislators in June Medical Services v. Gee. Harle served as Florida’s deputy solicitor general from 2015 to 2017.

Of all the questions raised in June Medical Services v. Gee, the most fundamental one is threshold: Do abortion providers represent the interests of women seeking an abortion when those providers sue to invalidate laws protecting those women’s health and safety? It’s a question of third-party standing that has been largely ignored for decades.

The law at issue in this case makes the standing dilemma crystal clear. Act 620, Louisiana’s Unsafe Abortion Protection Act, was named to match its purpose. The law requires abortion doctors to meet the same standard as doctors at ambulatory surgical centers across the state by maintaining admitting privileges at a nearby hospital. One of the requirement’s main purposes is obvious: It ensures women’s wellbeing by guaranteeing that their abortion doctor can admit and treat them quickly at a hospital should something go wrong during the abortion procedure. Not a big ask. Again, physicians at all other ambulatory surgical centers in Louisiana already must do the same.

Another of the law’s main purposes is to screen out abortion doctors who have a track record of endangering patients. Hospitals vet the competence of doctors before granting them admitting privileges. They likely won’t extend those privileges to physicians with histories of professional errors and malpractice—their own institutional reputation is on the line. As a result, grossly negligent abortion practitioners won’t be able to secure the necessary credentials.

These purposes point to the long-established role of states in promoting the welfare and safety of their citizens. This law was plainly designed to safeguard the lives of pregnant women undergoing an abortion.

That’s what makes this case so odd: No women are challenging Act 620 and arguing that they don’t want safe, competent medical care. Instead, abortion providers sued to make abortion procedures less safe, purportedly on behalf of those women. That is problematic for numerous reasons.

First, it is well settled that litigants must assert their own legal rights and interests, not the interests of third parties. That rule ensures vigorous advocacy on behalf of real parties in interest.

Second, it is well recognized that those protected by a law are generally best suited to advocate for the protections they want and need. If health and safety regulations in the construction industry are inadequate or have problematic unintended consequences, it is workers, not their employer, who must sue.

Third, the exception for third-party standing is tightly limited to situations in which (1) there is a “close relationship” and (2) the third party faces some “hindrance” to asserting her own right. Of course, neither of those applies here. The abortion doctors haven’t even pretended that women were genuinely hindered from filing a legal challenge, and, because of the nature of the procedure, abortion doctors and their patients almost always have a one-time, one-off, brief interaction – hardly a “close relationship.” In fact, abortion providers in other states have often sued to make sure that women don’t have to see them more than once. In this case, abortion doctors are relying on something even flimsier: a hypothetical future relationship with unknown women with whom they’ve had no contact at all.

But the relationship isn’t just arms-length and fleeting; it is, in some significant ways, adverse. Time and again, abortion clinics seek to avoid regulatory constraints that could make their practice more expensive or more time consuming, or otherwise affect their bottom line. Women seeking abortions, on the other hand, aren’t concerned about the abortion clinics’ profit margins; they are concerned about their own health and safety. The conflict is clear.

Yet almost never do we see women challenging laws regulating abortion. It is nearly always abortion providers who, for example, sue to avoid giving women an ultrasound image of their babies in utero. It is abortion clinics, not patients, that sue over a requirement that abortions be performed only by licensed physicians. It is abortion providers, not women, who fight the requirement to sterilize their instruments. But among all medical patients, why should women seeking abortions alone be the ones adversely affected by doctors who want to take shortcuts and make more money at the expense of their patients? It is time to bring abortion litigation back in line with a proper jurisprudence on standing.

This case is archetypal. Women in Louisiana did not contest the Unsafe Abortion Protection Act that protects their wellbeing. Instead, abortion doctors sought to invalidate a law that protects their own patients’ lives—while claiming to do so on behalf of those same patients.

Worse, as detailed in the amicus brief my colleagues filed on behalf of a number of Louisiana state legislators, the record in Louisiana shows a pattern of abortion providers’ failing to represent the interests of the women they serve: neglecting to report rapes, performing late-term abortions without providing medical justification and failing to obtain proper consent. This is a documented history of abortion doctors sacrificing, not protecting, their patients’ interests.

Underscoring the conflict, the record here shows that, as the U.S. Court of Appeals for the 5th Circuit found, Louisiana’s abortion doctors did not bother to make a good-faith attempt to obtain admitting privileges. Instead, they “largely sat on their hands,” not even trying to see if they could satisfy the law’s requirements for their patients’ wellbeing. Is that zealous representation of their patients’ interests? Hardly.

The abuse of third-party standing here poses several practical barriers to proper adjudication. First, because of the disconnect between the interests of the women protected by Act 620 and those of the physicians regulated by it, the court system lacks firsthand, credible, verifiable evidence. Without testimony from women seeking abortions in Louisiana, the courts haven’t had the benefit of the concrete factual context needed to present the issues sharply. What is the real impact on actual women seeking abortion? Do real women benefit from admitting privileges? (Hint: even the anonymous, anecdotal evidence referenced in the record here suggests the answer is yes.) Do women seeking abortion actually prefer that their abortion provider not be able to admit and treat them at a nearby hospital if they experience complications like hemorrhaging?

This factual deficiency appears again and again in cases in which no women seeking abortions are challenging laws that protect women seeking abortions. This deficiency forces courts to speculate or rely on third-hand anonymous accounts when making what is a fact-bound and fact-specific inquiry into whether restrictions pose an undue burden. Such an adjudication runs counter to Article III of the Constitution, which strictly requires particular standing for each claim and a definite factual context for judicial action on important questions.

The trouble spills over into fashioning a remedy, too. In challenges to the overall constitutionality of comprehensive abortion laws—as most of these lawsuits are—courts should craft the narrowest remedies necessary while upholding duly enacted laws insofar as possible. But when women don’t represent their own health interests, there is no one to present a court with the kind of evidence that can bring the boundaries of the law into precise relief. Exactly how much might the law need to be limited to maintain abortion-facility operations while still protecting women’s safety? Based on actual facts, precisely how far may a particular state go to advance health and safety without creating a substantial obstacle to abortion access?

These considerations go to the heart of whether justice can be achieved when the allegedly aggrieved parties are, as here, entirely absent from the case.

Regardless of whether it gets to the other questions in June Medical, the Supreme Court should resolve the key threshold issue of third-party standing. Along the way, the court must ask: Are abortion providers’ self-interested motives to strike down laws that may affect their bottom line inherently at odds with their ability to represent women seeking safe abortions? And are women incapable of challenging laws they believe infringe on our constitutional rights?

Third-party standing is not supposed to be a procedural loophole that allows doctors to challenge laws that benefit their patients.

Recommended Citation: Denise Harle, Symposium: A long-awaited opportunity to close the loophole on third-party standing, SCOTUSblog (Jan. 29, 2020, 10:21 AM),