With the recent additions of Justices Neil Gorsuch and Brett Kavanaugh to the bench, many are still waiting to see how they will rule on the issue of abortion rights in June Medical Services v. Russo, argued March 4. But as informed observers realize, that wait will probably continue, and this case could be decided instead by the justices’ thoughts on a very different issue: Who can come into court and litigate over abortion rights?
It’s a technical legal matter known as “third-party standing” under Article III of the U.S. Constitution. Applied to this case, the question is: Do abortion providers represent the interests of women seeking abortion when those providers sue to invalidate laws protecting those women from inept practices by those very same providers? This question of third-party standing has been largely ignored for decades, at least in abortion litigation. But now its answer could determine the outcome of this highly important case.
The law at the heart of June Medical is Louisiana’s Act 620, the Unsafe Abortion Protection Act. Louisiana enacted this law in 2014 in response to egregious practices pervading the Louisiana abortion industry. Reusing single-use equipment, failing to stock emergency materials, allowing unqualified staff to administer anesthesia and drugs...the laundry list of substandard medical practices is shocking. And some Louisiana women have suffered permanent health issues as a result.
One woman named Brenda went to a Louisiana abortion facility for a surgical abortion. After perforating Brenda’s uterus during the procedure, the abortion doctor left her lying on the operating table for nearly eight hours. Then, rather than calling 911 or an ambulance, he instructed a staff member to take Brenda to the hospital in the staff member’s car and to conceal that she had an abortion.
Much later, hospital staff discovered the skull of Brenda’s baby still within her uterus, which also had a tear that had become infected. They performed an emergency hysterectomy and saved Brenda’s life. But because of the negligence and incompetence of her abortion doctor, Brenda is now infertile.
Sadly, other women in Louisiana have stories much like Brenda’s, and Louisiana legislators realized they needed to take action.
Louisiana law already requires doctors at ambulatory surgical centers to have admitting privileges at nearby hospitals. Act 620 extends this commonsense requirement to abortion doctors, which protects women like Brenda in two fundamental ways.
First, hospitals screen doctors for competence and a clean track record before granting them admitting privileges, because the hospital’s own reputation and liability are on the line. This ensures competent providers.
Second, the admitting privileges requirement ensures the abortion doctor can admit and treat the woman at a nearby hospital when a complication occurs. This continuity of care protects women like Brenda because, after the botched abortion, the abortionist can inform medical professionals what happened and continue to provide care, if appropriate.
It’s not surprising, then, that not a single woman has challenged this law, which provides straightforward protections for women’s health and safety. And this brings us to the critical issue of standing to sue, which Justice Samuel Alito raised during oral arguments. Although abortion providers challenged Act 620, claiming to do so on behalf of women, third-party standing isn’t permitted when the plaintiff and the person they purport to represent have interests that diverge. And here, the interests are directly at odds: Act 620 protects women from unskilled abortion providers, who are suing to challenge those protections.
Meanwhile, the same abortion providers have a vested interest in remaining free from scrutiny and compliance that might take time and reveal malpractice. It’s a fundamental conflict of interest, just as if a motor vehicle manufacturer sued on behalf of consumers to invalidate a safety regulation, such as airbag improvements, that protects those same consumers.
The abortion industry is arguing that Louisiana women actually want less competent abortion doctors who are unable to treat them at a nearby hospital if something goes awry. But despite having nearly six years to do so, not one woman has sued to invalidate the law and made that argument. This is precisely why third-party standing bars conflicting interests: to ensure full and fair representation in court, and no perverse incentives to justice. On Act 620, women can speak for themselves—and can speak for themselves best.
Third-party standing should not be a procedural loophole that allows doctors to challenge laws that benefit their patients, and there is no reason to give abortion doctors a special exemption. The abortion industry lacks standing to hijack women’s rights and challenge the Unsafe Abortion Protection Act, which protects women’s health. The Supreme Court should take this opportunity to make that clear.
Denise Harle is legal counsel with the Alliance Defending Freedom Center for Life (@AllianceDefends), which represents Louisiana legislators in a friend-of-the-court brief filed at the U.S. Supreme Court in June Medical Services v. Russo. Harle served as Florida’s deputy solicitor general from 2015 to 2017.