Photo by Anastasiia Chepinska on Unsplash
Rebekah Durham, Associate Member, University of Cincinnati Law Review
I. Introduction
On June 29, 2020, the Supreme Court announced its decision in June Medical Services v. Russo, striking down as unconstitutional a Louisiana regulation requiring abortion providers to maintain admitting privileges at a hospital within 30 miles.[1] While defending its regulation before the Supreme Court, Louisiana also filed a cross-petition, arguing that June Medical Services should not be permitted to invoke third-party standing and base its argument on the Constitutional due process rights of the women to whom it provides abortion services.[2] The Court granted certiorari and ruled on both the case and the cross-petition together.
In his plurality opinion, Justice Breyer concluded that the State had waived the issue of third-party standing by failing to raise it at any point during the prior five-year litigation process.[3] Justices Thomas, Alito, Gorsuch, and Kavanaugh each wrote a dissenting opinion. Three of the dissenting Justices (Thomas, Alito, and Gorsuch) argued that third-party standing was inappropriate, and in doing so, they filled the record with significant dicta that could lay the foundation for the issue to be challenged in a future case.[4] This article discusses both sides of the third-party standing debate, the Supreme Court’s ruling in June Medical, and how this issue may play into the future of abortion litigation.
II. Background: How Third-Party Standing Applies to Abortion Cases
Third-party standing is a complex issue that applies to multiple areas of law in different ways, yet at its core lies a very simple rule: “Ordinarily, one may not claim standing in [the] Court to vindicate the constitutional rights of some third party.”[5] The reasons behind the rule are common sense: to ensure that cases are only argued for those who actually want their rights to be litigated, and the belief that people will argue most effectively for their own interests.[6] Courts have recognized certain exceptions to this rule, however, and one such exception was applied to abortion providers in the 1976 Supreme Court case Singleton v. Wulff.[7] In Singleton, a case that concerned a challenge to limits on state funding for abortions, the Court fashioned a two-part test for third-party standing. In the plurality opinion, Justice Blackmun stated that a litigant can assert the constitutional rights of a non-party when 1) the two have a close relationship such that “the former is fully, or very nearly, as effective a proponent of the right as the latter,” and 2) there exists some hindrance to the third party asserting its own constitutional rights.[8] In other words, a litigant may support its argument with the constitutional rights of another when that litigant has the same interests as the third party but is the only one in a position to defend those interests.
Singleton ended with a powerful sentence: “We conclude that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”[9] Until June Medical, this was generally considered to settle the issue as far as abortion litigation was concerned. Most challenges to abortion regulations and restrictions had been brought by the doctors and clinics whose practices were limited by the laws they challenged.[10] Several reached the Supreme Court, but the standing of abortion providers had been rarely questioned, and even when the issue was raised, judges were generally safe to assume that standing is proper.
Two distinct questions under third-party standing were addressed in June Medical.[11] The first question was whether standing in this context is constitutional or prudential in nature – whether the rule against third-party standing derives from Article III of the Constitution or if it is merely a rule adopted by courts for the general furtherance of justice.[12] This was significant in June Medical because Article III standing issues cannot be waived, and ultimately the reason that Louisiana’s third-party standing challenge was rejected was because it had, in fact, waived the issue by failing to raise it earlier.[13] The second question went to the merits of the standing argument: Should abortion providers be permitted to use the constitutional rights of their patients to support their lawsuits against restrictive abortion regulations?[14]
III. Arguments Presented in June Medical Services v. Russo
With almost 50 years of consistent judicial interpretation to back them, June Medical Services and its amici advanced one primary argument to support its standing: precedent.[15] Beginning with Singleton in the 1970s and continuing through the most recent major abortion case, Whole Women’s Health v. Hellerstedt in 2016, no court has found that the standing of an abortion provider to challenge state abortion regulation is improper.[16] The strong language in Singleton left little room for interpretation, and June Medical Services noted in its response the “legion” of appellate court decisions affirming third-party standing for abortion providers.[17] Standing was assumed without discussion by the Supreme Court in Hellerstedt, which itself is evidence of the consistency and clarity of precedent on the issue.[18]
Despite an uphill battle against numerous precedents, a flood of amici supported Louisiana’s cross-petition, offering a variety of arguments against the policy evolving in the lower courts to automatically award third-party standing to abortion providers.[19] Louisiana first argued that Article III standing was implicated because June Medical Services was not advancing its own interests at all, but only those of its patients.[20] Other arguments centered around the potential for a conflict of interest that exists when abortion providers are allowed to use the health and safety of women as the central point to justify repealing laws designed to protect that very health and safety.[21] Amicus briefs were submitted detailing dozens of examples of Louisiana abortion providers who were cited for providing sub-standard care, with the goal of demonstrating that abortion providers do not always have the best interests of women at heart, and thus should not be permitted to represent the rights of these women in court.[22]
Ultimately, the Supreme Court granted third-party standing to June Medical Services, concluding that, “In short, the State’s strategic waiver and a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing.”[23] In response to the conflict-of-interest argument, the plurality noted that third-party standing has often been permitted when the health and safety of unrepresented individuals was at issue.[24] The Court cited to Akron, Doe, and Danforth, three of the biggest abortion cases to reach the Supreme Court over the years, all three of which had involved challenges to health and safety regulations.[25]
The dissenters spent far more time analyzing third-party standing than did the plurality. Justice Thomas in particular argued that standing issues always implicate Article III of the Constitution and therefore cannot be waived, and that because June Medical Services was not advancing any of its own rights at all, it lacked proper standing and should not even have been permitted to bring the lawsuit.[26] Justice Alito based his objection to standing largely on conflict of interest, declaring that “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.”[27] Lastly, Justice Gorsuch argued that the plaintiff abortion providers failed to meet the two-part standard set out in Singleton, because they lacked the close relationship required to properly assert the constitutional rights of another.[28]
IV. Discussion: The Impact of June Medical and the Future of Third-Party Standing
The impact of the June Medical decision was limited and is only beginning to impact the lower courts.[29] The merits of the case were ultimately decided based on the precedent set in Hellerstedt and added minimal new material to abortion jurisprudence. In fact, the most significant impact of June Medical may be the dicta from the dissenters that invites the Court to revisit its previously settled third-party standing doctrine. It is likely that this strong language from the dissenters combined with an unwillingness by the plurality to give a firm resolution to the merits of the standing issue will result in standing being raised by every defendant in an abortion regulation case until the issue eventually returns to the Supreme Court.
Each dissenting Justice focused on a different problem with the third-party standing doctrine, but most of the objections stem from a single root: courts have gradually drifted away from the Singleton test in favor of the simplicity of an “abortion exception” to the rule against third-party standing. However, Singleton did not create such a blanket exception – and neither did the plurality in June Medical. Rather than merely affirming that abortion providers have a general right to standing no matter the issue, the plurality found Louisiana’s waiver to be the first reason for its decision and precedent to be the second. If a future defendant properly raises a challenge to an abortion provider’s standing, the Court may find reason to re-examine the merits of its third-party standing doctrine.
When that happens, the Court should return to an honest reading of Singleton and require abortion providers to demonstrate a close relationship with their patients and a genuine hinderance to the ability of those patients to bring a challenge on their own. Only then should an abortion provider be permitted to advance the constitutional rights of women. The regulation of abortion providers is an area of litigation with a wide array of fact patterns and competing political, business, and constitutional interests. In this hectic area of law, a blanket exception to third-party standing is not supported. There is no justifiable reason why such a broad exception to the rule against third-party standing should exist for abortion providers, when plaintiffs in other areas of law are required to prove third-party standing before they are granted the privilege of exercising it.
V. Conclusion
Although the doctrine of third-party standing has been applied consistently to abortion cases for the past 50 years, the Supreme Court opened the door to revisiting that doctrine with its decision in June Medical. With three of the four dissenting Justices each devoting multiple pages to its discussion, the stage has been set for a standing showdown when the right case comes along. When that case does come, the Court should return to a case-by-case assessment of third-party standing – one that considers the individual circumstances and the specific interests of the women whose lives are being debated in the courtroom.
[1] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).
[2] Conditional Cross-Petition, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18-1460).
[3] June Med. Servs., 140 S. Ct. at 2120.
[4] Memorandum from Americans United for Life to State Legal Officers, Lawmakers, and Policy Advocates (July 31, 2020) https://aul.org/wp-content/uploads/2020/08/2020-07-31-AUL-on-JMS-Disapointment-and-Opportunity.pdf.
[5] Barrows v. Jackson, 349 U.S. 255 (1953).
[6] Singleton v. Wulff, 428 U.S. 113-14 (1976).
[7] Id.
[8] Id. at 114-15.
[9] Id. at 118.
[10] See City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) (abortion clinic operators challenged an Ohio ordinance that regulated abortions); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (a group of abortion providers challenged a Texas statute that required them to retain hospital admitting privileges); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (abortion clinics challenged the Pennsylvania Abortion Control Act of 1982).
[11] Conditional Cross-Petition at i, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18-1460).
[12] Craig v. Boren, 429 U.S. 190, 193 (1976).
[13] June Med. Servs., 140 S. Ct. at 2117-18.
[14] June Med. Servs., 140 S. Ct. at 2118-20.
[15] Opposition to Conditional Cross-Petition for a Writ of Certiorari, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18-1460).
[16] Id. at 18.
[17] Id. at 19.
[18] Id. at 21-22 (citing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, at 2321-22 (Thomas, J., dissenting)).
[19] Conditional Cross-Petition at 17, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18-1460).
[20] June Med. Servs., 140 S. Ct. at 2143.
[21] Conditional Cross-Petition at 21-22, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18-1460).
[22] Brief Amicus Curiae of Americans United for Life in Support of Cross-Petitioner, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18-1460).
[23] June Med. Servs., 140 S. Ct. at 2120.
[24] Id. at 2119.
[25] June Med. Servs., 140 S. Ct. at 2120 (citing City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983), Doe v. Bolton, 410 U.S. 179 (1973), and Planned Parenthood v. Danforth, 428 U.S. 52 (1976)).
[26] June Med. Servs., 140 S. Ct. at 2142-46 (Thomas, J., dissenting).
[27] Id. at 2144 (Alito, J., dissenting).
[28] Id. at 2174 (Gorsuch, J., dissenting).
[29] See Women of Color v. Kemp, 2020 U.S. Dist. LEXIS 124699 (N.D. Ga. July 13, 2020) (in a challenge to a Georgia “heartbeat bill”, this is one of the first cases to cite to June Medical on the issue of third-party standing); Am. Coll. of Obstetricians & Gynecologists v. United States FDA, 2020 U.S. Dist. LEXIS 122017 (D. Md. July 13, 2020) (challenge to in-person dispensing requirements during the COVID-19 pandemic for medication used to induce an abortion, the District Court discussed third-party standing in great detail and concluded that the plaintiff met both prongs of the Singleton test).
