Symposium: June Medical Services and the future of Article III standing in abortion cases
on Feb 3, 2020 at 2:56 pm
Leah Litman is an assistant professor of law at the University of Michigan Law School. She joined an amicus brief on behalf of constitutional law scholars in support of the petitioners in June Medical Services v. Gee and the cross-respondents in Gee v. June Medical Services. Steve Vladeck is the A. Dalton Cross Professor in Law at the University of Texas at Austin School of Law. He joined an amicus brief on behalf of federal courts scholars in support of the petitioners and the cross-respondents.
In June Medical Services v. Gee, the major abortion case the Supreme Court is set to hear on March 4, both Louisiana and its amici have framed the state’s cross-petition as raising a question of “third-party standing”—a claim that abortion providers are not the proper parties to challenge anti-abortion laws. But their arguments make clear that the cross-petition is really about standing itself, not third-party standing—and specifically about whether a plaintiff who experiences an injury in fact will be allowed to sue in federal court going forward.
June Medical involves a Louisiana law that requires physicians performing abortions to have admitting privileges at a hospital within 30 miles of where they administer the procedure. If a doctor without admitting privileges performs an abortion, they may be imprisoned or fined. Clinics that employ such doctors can have their licenses revoked; they may also be fined or face civil liability. Much of the discussion on the merits is focused on whether the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, striking down a similar Texas law, requires the same result here. But Louisiana cross-petitioned for certiorari in Gee v. June Medical Services, arguing that the case should be dismissed (and the law allowed to go into effect) because the plaintiffs don’t have standing. Perhaps reflecting a lack of confidence on the merits, the state’s alternative position is that the case should just go away.
The Supreme Court has long read into Article III of the Constitution a requirement that plaintiffs have “standing,” meaning that they can show (1) an injury in fact that is (2) fairly traceable to the defendant’s allegedly wrongful conduct and (3) redressable through a favorable judicial ruling. There is no question that the plaintiffs in June Medical meet this test: 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.
Louisiana and its amici nonetheless insist that the doctors and clinic lack standing because they are asserting the rights of a third party — women seeking abortions — rather than their own. This argument confuses true third-party standing cases, in which plaintiffs themselves are not subject to state-imposed penalties, and cases like this one, in which a party argues they were personally subject to an unlawful rule of decision. The former set of cases implicate concerns about third-party standing; the latter, like June Medical, do not.
To understand the difference, imagine a law that imposes a 10-year term of imprisonment on schoolteachers who instruct women how to read. No one doubts that a schoolteacher subject to the law would have standing to challenge it, even though the teacher would be asserting the students’ rights rather than their own. By contrast, there would be questions about whether the students’ fathers would have standing to challenge the law: Although fathers may have a close relationship with their children, they are not themselves subject to any penalties or disadvantage under the law.
A lawsuit by fathers would therefore involve third-party standing. A lawsuit by teachers, however, would not involve third-party standing because the plaintiffs would be asserting their own personal right not to be subject to a law that contains an illegal rule of decision. It just so happens that the rule of decision—you can teach men but not women—is illegal because it violates another person’s rights. That hardly means the teachers who are facing criminal penalties have not been injured, or that they are not asserting their own right to be free from an unlawful statute.
This difference has been hard-wired into the Supreme Court’s standing doctrine and legal scholarship for decades. Richard Fallon’s canonical article on third-party standing in the Harvard Law Review explained that “a defendant cannot be sanctioned without the authority of a valid law.” Almost two decades earlier, Henry Monaghan likewise confidently stated that “a litigant asserts his own rights (not those of a third person) when he seeks to void restrictions that directly impair his freedom to interact with a third person.”
The leading federal courts casebook, “Hart and Wechsler’s The Federal Courts and the Federal System,” explains that this understanding makes perfect sense of the court’s case law — across many different domains. Craig v. Boren allowed a bartender to challenge a law that prohibited serving “near beer” to women under 18 and men under 21 (even though the vendor, who was subject to the law, was asserting customers’ rights to be free from sex discrimination); Carey v. Population Services allowed a corporation selling contraceptives to challenge a law that prohibited nonpharmacists from selling contraceptives to people under the age of 16 (even though the corporation subject to the law was asserting the individuals’ right to contraception); Meyer v. Nebraska and Pierce v. Society of Sisters allowed schools and educators to challenge laws restricting the teaching of foreign languages or enrollment in private schools (even though the schools and educators subject to the law were asserting students’ and parents’ familial rights); Washington v. Glucksberg allowed a physician to challenge a law prohibiting assisted suicide (even though the physician subject to the law was asserting patients’ rights); and so on.
This is all for good reason. Under the state’s theory, a physician who is thrown in jail for violating the admitting-privileges law would not have standing to challenge the law in a civil suit because they would not be asserting their own rights (even though they are the ones in jail because of the law).
The U.S. solicitor general blithely suggests that the court’s cases have apparently taken a new direction. But the only case that the solicitor general cites for that proposition is Elk Grove Unified School District v. Newdow. In that case, a father challenged a school requirement that schoolchildren recite the pledge of allegiance. But that policy did not apply to him at all; it applied to his child, and his standing claim “derive[d] entirely from his relationship with his daughter.”
Perhaps recognizing that the argument against standing flies in the face of law and reason, the state and its amici attempt to carve out an exception for abortion cases. Abortion cases like June Medical are different, they insist, because the interests of the right-holders (women seeking abortions) diverge from the interests of the people subject to the law (clinics and doctors who perform them). Louisiana claims it enacted the admitting-privileges requirement because abortion providers must be regulated for the health and safety of these women. It may well be true that the providers and the women seeking abortion have interests that don’t perfectly align. But it hardly follows from this that the clinics and doctors lack standing to challenge a law that directly punishes them.
One could make—and people have made!—the same argument about interests diverging in many cases that involve plaintiffs challenging laws that contain invalid rules of decision. Beer vendors’ interests will diverge from their customers; beer vendors will want to serve and sell a lot of beer, even though it might not be in their customers’ interests to consume all of it. For example, in Craig, the vendor presumably wanted the rule to be that vendors could sell near-beer to anyone over 18; others might have wanted the rule to be that vendors can sell near-beer to anyone over 21. States frequently argued and continue to argue that they are restricting contraception for health and safety reasons. Yet the court has allowed contraception providers to challenge laws restricting the sale of contraception.
Perhaps reflecting the extent to which settled doctrine should also settle the matter here, Louisiana and its amici wonder why women are not the plaintiffs in more lawsuits challenging abortion restrictions. Their arguments on the merits in support of the abortion restrictions offer one possibility. The arguments repeatedly denigrate and demonize people who seek abortions, occasionally characterizing them as confused would-be mothers easily duped by the abortion industry or as willing villains in ”the taking of ‘infant life.’”
Yet the state and its amici cannot seem to fathom why women do not want to be plaintiffs in these lawsuits. The women, of course, have made it clear. An amicus brief filed by more than 350 people in the legal profession who have exercised their right to an abortion explained why third-party standing is necessary based on their own experiences with obtaining abortions. These women want to preserve other women’s ability to have a choice — a choice to get an abortion, and a choice to not have to be a plaintiff in a lawsuit in order to get one.
There are also extremely serious temporal complications to women’s serving as plaintiffs in these lawsuits. The would-be plaintiffs would have to be pregnant, but not too far along that they can no longer obtain an abortion; and the suit would have to proceed quickly enough such that a ruling in a woman’s favor would allow her to get an abortion (because at some point, she will be too far along to obtain one).
For years the court has struggled with when a pure injury in law (such as a violation of a “procedural right in vacuo”) suffices for purposes of standing — that is, what happens when a statute authorizes a plaintiff to sue even though that plaintiff may not have suffered a real-world injury in fact? Reasonable minds may disagree on the answer to that question, but it’s just not presented in June Medical.
Instead, Louisiana and its amici’s standing arguments would further cabin standing even for those who unquestionably suffer a concrete injury in fact. Now, they insist, injuries in fact are no longer sufficient – it doesn’t matter that the doctors and clinics face civil liability and imprisonment. What matters, they say, is whether the law regards this injury as an interest that the doctors and clinics can raise.
Toward the end of his career, Justice Antonin Scalia wrote an opinion in Lexmark International v. Static Control Components that attempted to curtail the “prudential branch of standing” that “encompass[ed] … the general prohibition on a litigant’s raising another person’s legal rights.” As Scalia wrote for a unanimous court:
From Article III’s limitation of the judicial power to resolving “Cases” and “Controversies,” … we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” … The plaintiff must have suffered or be imminently threatened with a concrete and particularized “injury in fact” that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.
Here, there is no doubt that the plaintiffs’ allegations of possible imprisonment, fines, loss of licenses and civil liability, in Scalia’s words, “give them standing under Article III” and that the plaintiffs’ “claim thus presents a case or controversy that is properly within federal courts’ Article III jurisdiction.”
The question in June Medical is whether the court should fashion a standing rule only for abortion cases that says an injury in fact is not enough. The dissent would write itself:
“This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. Today’s decision goes further, and makes it painfully clear 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. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but—except when it comes to abortion—the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it.” …
Today the ad hoc nullification machine claims its latest, greatest, and most surprising victim: [Article III].
Those words aren’t ours; they are Justice Sandra Day O’Connor’s, which Justice Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, quoted in his dissent in Madsen v. Women’s Health Center. The court should listen to them.