Astute legal observers will surely note that, in numerous high-profile abortion cases, a named party to the suit is not a woman looking to procure an abortion (such as the eponymous alias “Roe” in Roe v. Wade), but is instead an abortion clinic. Two leading examples are the 1992 Supreme Court case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which concocted the “undue burden” standard that still governs federal judicial review of abortion restrictions, and the 2016 Supreme Court case of Whole Woman’s Health v. Hellerstedt.
But why these abortion clinics should get “standing” to bring a federal lawsuit under Article III of the U.S. Constitution is not an easily resolved question. As I explained in a Daily Wire op-ed earlier this month, standing requirements were most clearly laid out in the 1992 Supreme Court case of Lujan v. Defenders of Wildlife as consisting of (1) an injury-in-fact, (2) a causal connection between the injury and the conduct brought before the court, and (3) a likelihood of redressability by a court.
But this does not necessarily explain how an abortion clinic would be able to bring suit against a legislature’s enacted abortion restriction. The Court has therefore fabricated an alternative standing requirement, called “third-party standing,” which a third-party actor must meet in order to qualify for Article III standing on behalf of an independent first-party actor. In the 2004 case of Kowalski v. Tesmer, the Court outlined two additional factors for these third-party actors: (1) “the party asserting the right [must have] a close relationship with the person who possesses the right,” and (2) there must be a “hindrance to the possessor’s ability to protect his own interests.”
Many conservatives jurists, including Justice Clarence Thomas in his Hellerstedt dissent, have criticized the Court’s “third-party standing” doctrine in no uncertain terms. Not only is the Court’s “third-party standing” doctrine “no model of clarity,” said Thomas in Hellerstedt, but “the Court has [also] shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake.” As Thomas stated most directly later in his dissent: “Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child.”
Now, as Ed Whelan notes at National Review’s “Bench Memos” blog, a document filed yesterday with the Supreme Court conditionally challenges the Court’s “third-party standing” doctrine jurisprudence and asserts that abortionists should not be able to bring such federal lawsuits on behalf of women seeking to procure abortions. The document takes the form of a “conditional cross-petition” for a writ of certiorari, and the underlying case, which deals with a Louisiana abortion restriction recently upheld by the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, is June Medical Services, LLC v. Gee.
As Whelan summarizes, “Louisiana’s cross-petition is conditional in that Louisiana is asking the Court to address this issue of third-party standing only if grants the abortion providers’ petition.”
Reached for comment by The Daily Wire, Elizabeth Murrill, the solicitor general of Louisiana and therefore the attorney responsible for defending the State of Louisiana at the Supreme Court, said the following:
Third party standing in virtually all federal litigation circumstances has been strictly limited and based upon actual proof that the representative party’s interests align with the person and position of the party he seeks to represent.
But in abortion cases, none of the ordinary rules apply. Standing has been grossly expanded, is always assumed, and is never supported by actual evidence. Clarifying the law and holding clinics and abortion doctors to the same standards with which every other litigant has to comply would dramatically alter the abortion litigation landscape.
Louisiana filed a cross-petition for certiorari today in hopes that the Court will address the requirements for third party standing.
If the Supreme Court is inclined to grant June Medical’s petition, we hope the Court will also look at whether clinics and doctors with a long, well-documented history of legal and regulatory non-compliance and extensive malpractice histories can attack laws designed to protect women from that very same sub-standard conduct.
This is an issue whose time has come. The plaintiff clinics and doctors simply do not share their patients’ interests when they seek to cut corners and avoid oversight.
Louisiana Attorney General Jeff Landry, also reached for comment, added: “Louisiana’s admitting privileges law is a common-sense measure that ensures women receive proper care if they have complications. My office and I will continue to vigorously defend the admitting privileges requirement and do what we legally can to protect Louisiana women.”
Pro-lifers ought to carefully track this litigation to see how the Court rules on Louisiana’s worthy challenge of the Court’s muddled “third-party standing” doctrine. As Whelan observes: “If the Court were to grant the cross-petition and rule against the abortion providers on third-party standing, it could eliminate much of the abortion litigation that besets the federal courts.”