//  2/28/20  //  Commentary

This post in our June Medical Symposium is by Helen Hershkoff, Gillian Metzger, and Judith Resnik. Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at New York University School of Law.  Metzger is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School. Resnik is the Arthur Liman Professor of Law at Yale Law School.

On March 4, 2020, the U.S. Supreme Court will hear argument in June Medical Services v. Russo, a challenge to a Louisiana law that will block women from accessing abortions by requiring doctors who perform this medical procedure to have admitting privileges at a local hospital. In a cert petition to the Supreme Court, Louisiana for the first time in the litigation argued that doctors who bring challenges to admitting privileges or other laws that restrict access to reproductive choice lack standing to assert the rights of their patients and future patients to an abortion. 

This argument is cynical in the extreme: recognizing that the Louisiana law cannot withstand judicial analysis, Louisiana wants to remove doctors from the litigation so as to prevent doctors from bringing challenges in the first place—and, not just in this case, but in all abortion cases. Louisiana argues that the abortion procedure is wholly outside the doctor-patient relationship, which requires doctors to serve their patients’ best interests and which makes them responsible for and hence effective advocates for their patients’ rights. The state’s arguments provide no ground for the Court to refuse to assess admitting privileges on their merits, to refuse to apply its 2016 precedent of Whole Woman’s Health, or to refuse to invalidate the Louisiana law as an unconstitutional restriction on a woman’s access to reproductive choice.

Whether doctors have standing to challenge abortion restrictions on behalf of their patients and future patients raises the question of “third-party standing,” a rule that in certain circumstances allows a plaintiff who has suffered an injury to assert the claims of other rights-holders in federal court. Clearly the statute harms doctors directly because it interferes with their professional obligations to patients. In this case, the doctors and the clinic are also asserting that they are proceeding on behalf of women who have a constitutional right to access safe abortions. Louisiana and its amici would make it seem that third-party standing is a special rule for abortion cases. 

Nothing could be further from Supreme Court precedent, as a variety of cases that recognized third-party standing demonstrate. In Craig v. Boren, for example, the Court allowed a licensed vendor of 3.2% beer to raise the Equal Protection claim of a male who, unlike females, was prohibited under state law from purchasing beer at age 18. In this circumstance, the Court permitted the beer seller, who faced civil sanctions if she did not comply with the law and a loss of income if the law continued in place, to litigate the underage male’s Equal Protection claim because their interests were aligned—if the beer seller lost, so did the male, and therefore the Court could trust the seller to litigate the case vigorously and act as a true advocate of the male’s interests. (In the technical language of federal jurisdiction, the beer seller was the first party and the underage male was the third party.)  

We should underscore that the defendant in Craig did not challenge the beer seller’s third-party standing until the appeal, when the male plaintiff had “aged out” of the state restriction and the suit was arguably moot. The Court rejected the challenge and held that the limitations on third-party standing were “prudential” rather than required by Article III of the U.S. Constitution. Any hesitation to exercise judicial power could and should be overcome where the lower courts had the benefit of adversarial presentation. The majority reached its decision despite a strongly worded dissent from Chief Justice Burger who would have limited third-party standing to first-party plaintiffs who stand in a recognized professional relationship with the third-parties who are not before the court—relationships which Chief Justice delineated narrowly.  One of his examples was the doctor-patient.

Many other  cases illustrate the importance and the logic of third-party standing, including Eisenstadt v. Baird.  There, third-party standing was appropriate because Baird’s conviction for distributing contraception would impair or dilute the right of an unmarried woman to obtain and use contraception. The requirement of interdependence ensures that the plaintiff can be trusted to advocate for the third party, and aptly describes the functional relationship between the doctor and patient and future patients in June Medical Services.  

Come then to the question of third-party standing in abortion cases and the function of stare decisis, which counsels the Court to follow its prior decisions unless there are strong reasons against doing so. At least since 1976 in Singleton v. Wulff, the Court has consistently recognized that doctors challenging regulations of the abortion procedure have third-party standing to assert the liberty, autonomy, and equality claims of patients and future patients seeking to exercise reproductive choice. A doctor who must comply with a restrictive state regulation typically faces sanctions such as loss of a license, fines, or even imprisonment, and thus manifests the concrete and particular injury needed for both first-party and third-party standing. Furthermore, the doctor is well situated to defend with vigor the constitutional claims of the doctor’s patients and future patients. A doctor takes an oath to “do no harm,” and is a trained professional with expertise in the medical issues that are critical to the health and safety of pregnant women. The doctor’s interests thus are in alignment with those of the patient and with future patients. 

Third-party standing here has special force because a woman faces significant barriers in seeking to challenge state regulations of the abortion procedure on her own. In addition to the shore time frame in which the decision to terminate a pregnancy takes place, many practical impediments exist, especially for women of modest economic means. Civil litigants do not have a federal constitutional right to counsel, and federal law forbids the use of federal funding in lawsuits that challenge laws regulating reproductive rights or that seek access to reproductive services to terminate a pregnancy. Furthermore, no constitutional right to litigation funding for expert witnesses exists, and to prevail in a challenge, plaintiffs must typically show that a particular state regulation is medically unnecessary, scientifically arbitrary, or harmful to a woman seeking reproductive services. And of course, stigma continues to be attached to the heart-wrenching decision to terminate a pregnancy. In this world, publicity around bringing a case could result not only in social opprobrium but also harassment and threats of violence. Nor would the ability to proceed anonymously adequately protect women-plaintiffs; their names may be protected from the public at the time of filing, but at some point they will  need to appear in court or at depositions, and potentially they will face physical and mental threats just as women do when they seek to access abortion services.  

These facts inform why third-party standing exists and why doctors play an important role in providing access to the constitutional adjudication that could otherwise be unavailable. And these facts are why Louisiana wants to try to stop this litigation by belatedly raising the issue of standing. In earlier stages of the case, Louisiana expressly agreed that the doctors had standing to bring this suit. Nor would there be any grounds to challenge the doctors’ standing to pursue their own rights: they are the persons being forced to have admitting privileges as a condition of engaging in their medical practice, and thus are harmed in concrete and particular ways by the law they challenge. 

The state defendant’s belated attack on the doctors’ third-party standing should be rejected. Louisiana introduced no evidence in the lower courts of any conflict between the doctors and their patients and future patients, and of course there was none to introduce: their interests are united.  Moreover, Louisiana did not contest – nor could it - that women seeking to exercise reproductive choice face obstacles in asserting their own rights. To be clear, denying the doctors third-party standing should not bar the Court from deciding this case. The doctors would still have the right to demand that they be regulated only by constitutionally-valid laws, and a regulatory requirement that violates women’s right to access abortion is not constitutionally valid. Because the doctors satisfy the Article III requirements of standing, and the functional conditions of adversity were met in the lower courts, the Court should act on the “virtually unflagging” obligation to exercise its jurisdiction; a refusal to do so would carry considerable costs to the litigants and to the legal system.  

Yet more is at stake in the Louisiana case, given that it is an effort to try to create the appearance of a conflict between patients and their physicians. Although the state and its amici are not explicit on this point, they appear to be asking the Court to create a legal presumption that a doctor and a pregnant woman are in a position of conflict that automatically and in all cases bars the doctor’s third-party standing in suits involving abortion regulations. Louisiana’s baseless rejection of third-party standing in any and every abortion case would turn Chief Justice Burger’s dissent in Craig v. Boren on its head. He objected to permitting the seller of beer to represent an underage male but approved of doctors standing in for patients because they were in a relationship of trust. 

The state’s argument invokes a depressing set of rhetorical tricks, anecdotes, and legal misstatements. Amici call doctors who provide abortions an “industry” aimed only at increasing its “business asset[s],” while patients are “customers” or the “assets.” These mischaracterizations mean that the state is refusing to acknowledge that these providers are part of the medical profession and as such they have ethical commitments to respect patient autonomy, an insistence upon the patient’s informed consent, the rule of beneficence, and the principle of justice. Instead, the state tries to draw a wedge between the patient and doctor, repeating in its filings, over and over, that providers make decisions based only on money; that financial incentives drive them to do as many surgeries as possible; and that they resist any form of state regulation even if validly needed to protect women’s health and safety.

The requirement that a plaintiff meet standing requirements can help to protect judicial authority and litigants. Standing doctrine enables fair adversarial presentation and preserves judicial integrity. Affording third-party standing to abortion providers respects their position as medical professionals who can be trusted to represent the best interests of the patient and prospective patient in cases involving decisions to terminate a pregnancy. Law respects professional relationships in a host of arenas, as exemplified by evidentiary privileges protecting the lawyer-client relationship. Likewise, questions about judicial immunity from damages suits for alleged constitutional violations start with a presumption of professional regularity about the persons who occupy the judicial office. 

In sum, an unwarranted denial of third-party standing would work an injustice that would block redress for those who—as in June Medical Services—are hindered in their access to court but could be heard through a faithful agent whose interests align with their own. The State’s conclusory statements and the stray comments of its amici about rogue doctors do not support creating a presumption of a gap between doctors and their patients. Rather than a conflict of interest, as the state argues, doctors have legal and ethical obligations to protect health and safety, including when that means resisting the imposition of a harmful undue burden on a woman’s right to reproductive choice. 

Ironically, whether recognized as professionals, or disingenuously painted as “vendors,” the Court’s precedents make clear that those engaged in professional and commercial activity may assert third-party standing on behalf of people who “seek access to their market or function.” That is the basic teaching of Craig v. Boren. The principle of stare decisis thus does double duty in June Medical Services—on the threshold question of jurisdiction and then on the merits. By following its precedents, the Court can best preserve its own integrity while safeguarding a woman’s constitutional right to reproductive choice. 

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9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

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6/29/20  //  Quick Reactions

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Leah Litman

Michigan Law School