The Supreme Court Hears a Stealth Attack on Abortion Rights

(Bloomberg Businessweek) -- In 2016 the U.S. Supreme Court struck down a Texas law that required a doctor performing abortions to have admitting privileges at a nearby hospital. On March 4, the court will hear arguments in a dramatically similar case, a challenge to a Louisiana law that has the same prerequisites the court deemed unconstitutional four years ago. Anti-abortion groups are hoping the addition of two conservative justices to the court since 2016—Neil Gorsuch and Brett Kavanaugh—will lead to a different outcome. Like the Texas suit, this one could have dire implications for the ability of women in the U.S. to obtain abortions. Unlike the Texas suit, it could also halt almost all litigation defending their right to seek an abortion in the first place.

The issue is who is entitled to challenge abortion laws. The Louisiana case, like the one from Texas, was brought by abortion providers. The court has agreed not only to hear arguments for and against the law, but also the question of standing—whether the doctors bringing the case are entitled to be plaintiffs in the first place. Preventing the doctors from serving as plaintiffs could have far greater ramifications for abortion access in America: It could cause abortion lawsuits to grind to a stop, if only because women seeking to end a pregnancy don’t have time to wait for potentially extended and expensive courtroom procedures. And it would deprive abortion clinics, already under siege, of a vital weapon to defend themselves. “It’s difficult to predict just how damaging the decision would be because this is such a radical proposition,” says Michelle Banker, senior counsel at the National Women’s Law Center.

For the past four decades, U.S. courts have allowed abortion doctors to argue cases on behalf of their patients, representation made possible by the court granting them “third-party standing” to do so. A case in 1976, Singleton v. Wulff, found it “generally is appropriate” for abortion providers to contest regulations on their patients’ behalf. This concept can be invoked in other instances, to allow schoolteachers to fight cases on behalf of their students, or prosecutors on behalf of jurors, provided they meet certain criteria.

Abortion doctors have been filing cases on this basis for so long that George Washington University Law School professor Sonia Suter, who teaches courses that cover reproductive rights law, used to have only a line or two about the issue of “standing” in her course notes. More recently she’s found herself digging for more context to better explain what’s at stake. She wants to believe the Supreme Court will uphold the right of doctors to have standing and won’t overturn decades of precedent. But, as she sees it, even if the court decides to only partially close the door on doctors serving as plaintiffs, “it’s going to make it much harder to bring cases.”

The anti-abortion movement has shifted its tactics in recent years, particularly as state houses, the Supreme Court, and other federal courts have become more conservative. Efforts used to be focused on protesting outside clinics to target women as they went in for the procedure. But in the past decade the movement has found a more effective way to limit abortion access: pushing lawmakers to pass measures aimed at restricting clinics’ ability to do business. There’s literally a playbook for this. Americans United for Life published Defending Life 2020—the 15th anniversary edition—which encourages anti-abortion activists to use state legislative sessions to push laws that target abortion providers. A state-level group called Louisiana Right to Life (working with the Bioethics Defense Fund) takes credit for drafting the admitting privileges law now before the Supreme Court. Associate Director Angie Thomas said it was necessary because of the “extremely substandard medical care that they’re getting in Louisiana.”

On the issue of standing, Louisiana is arguing that doctors who provide abortions don’t have the “closeness” needed to establish a relationship quite like other physicians have with their patients. “Instead, it is shallow, transitory, and, as to the issues in this case, rife with conflicts of interest,” the state said in its petition to the Supreme Court in May. “And the whole history of constitutional litigation over abortion shows that women can and do assert their own alleged rights in court.”

Abortion-rights activists disagree. Putting the weight of litigation on women seeking abortions forces them to find lawyers in the short window in which they’re seeking an abortion and unable to get one. A woman has to be pregnant when she files the case in order to be a plaintiff. The woman then has to be willing to stick with the case for a significant amount of time: Louisiana’s law is being challenged at the Supreme Court six years after it passed. The majority of women seeking abortions already have children, and half live below the federal poverty line. A woman unable to find a doctor to terminate an unwanted pregnancy would not only need to have the time and money to pursue a legal case, but would also need to know that a hospital-admitting-privileges law was to blame for her local clinics’ closures.

An abortion opponent, Teresa Stanton Collett, a law professor and director of the Prolife Center at the University of St. Thomas School of Law in Minneapolis, reviewed 637 federal cases involving abortion and found that women are more likely to file suits seeking public funding for abortion or challenging parental or spousal consent laws. She said there were “almost no cases” brought by women alone challenging regulations on providers. To Collett, this shows that patients’ and doctors’ interests are not aligned.

Suter of George Washington University draws a very different conclusion from the research, saying it’s a powerful argument for third-party standing. “I think the explanation for that is that the women are not fully aware of how these laws impact” their ability to get an abortion, she says, “whereas they tend to challenge laws that very directly affect them in a visceral real sense.”

Doctors and clinic owners have always been on the front line of fighting the abortion wars. That’s how the Supreme Court found itself, in 2016, hearing Whole Woman’s Health v. Hellerstedt. Amy Hagstrom Miller, owner of the Whole Woman’s Health clinic in Texas, sued to block a 2013 law that would require abortion doctors in that state to have admitting privileges at a nearby hospital and force her to turn her clinics into surgery centers. Proponents of the laws argue they’re designed to improve the safety of abortion. Pro Life Louisiana, for example, argues on its site that the law creates “common sense safety protections” to ensure an emergency can be handled without delay.

But fewer than 1% of abortions result in an emergency room visit for an abortion-related complication. And the relative safety of abortions creates a Catch-22: Hospitals don’t usually give privileges to doctors who aren’t regularly sending in patients. Says Banker of the National Women’s Law Center: “Ultimately what they’re trying to do is vilify abortion clinics and politicize this long-standing doctrine [of standing] and close the doors to people whose rights have been violated.”

In Louisiana, should the law proceed, only one physician would be able to provide services for the 10,000 women who get abortions each year, according to the Center for Reproductive Rights. In Texas, half of the clinics closed as a result of the state’s admitting privileges law, one of Hagstrom Miller’s among them. She was able to take her fight to the Supreme Court because as a provider she had standing.

Louisiana didn’t raise the issue of standing in its initial defense of the law. After the state prevailed in lower courts and the plaintiffs took the case to the Supreme Court, Louisiana’s attorneys argued in May that the doctors shouldn’t be the ones to fight the law. “It seems like everybody is throwing every trick in the book,” says Helene Krasnoff, vice president for public policy litigation and law at Planned Parenthood. “Louisiana never raised third-party standing. When the case gets to the court with a differently composed court, then they try a different tactic.”

One thing that may have encouraged the state was a line in Supreme Court Justice Clarence Thomas’s dissent in the 2016 decision to strike down the Texas law: “The Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake,” he wrote. “When the wrong party litigates a case, we end up resolving disputes that make for bad law.”

The surprise wasn’t that Louisiana made such an argument, but that the court decided to take it up. In doing so, it has legitimized a new line of attack for anti-abortion activists. “Even if the Supreme Court doesn’t get rid of third-party standing or doesn’t rule against us in this case, we’re going to continue to have this battle for years to come,” says T.J. Tu, senior counsel at the Center for Reproductive Rights, which is representing the plaintiffs. “What we’re seeing is the anti-abortion legal movement frame the terms of the conversation for the next decade.” —With Rebecca Greenfield

To contact the editor responsible for this story: Eric Gelman at egelman3@bloomberg.net

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