//  2/26/20  //  Commentary

This post is by Mary Ziegler, a Proffessor of Law at Florida State University and a leading expert on the law of reproduction. It is the third in our Symposium on the June Medical case.

When the Supreme Court agreed to hear June Medical Services v. Russo, the greatest surprise came in the Court’s response to Louisiana’s cross-petition on third-party standing. For decades, since the 1976 decision Singleton v. Wulff, abortion clinics and providers had challenged the constitutionality of abortion restrictions, but Louisiana insisted that providers should not have third-party standing because their interests clashed with those of patients. In agreeing to hear the issue, the Court put decades of precedent in peril. But where did the standing strategy come from, and what does it tell us about the broader plan to undo Roe v. Wade?

Antiabortion attorneys had worked to chip away at Singleton from the moment it was decided. Nevertheless, explanations of why doctors should not have third party standing have changed fundamentally—and in ways that illuminate one of the leading strategies to reverse Roe—by arguing that abortion harms women.

Singleton itself involved a challenge to Missouri’s ban on Medicaid reimbursement for certain abortions. Several physicians argued that the state’s policy violated the abortion rights set out in Roe v. Wade. Missouri responded that the doctors did not have standing to bring suit in the first place, suggesting that abortion providers had very little at stake in the case. Attorney General John Danforth quipped that if abortion doctors could assert standing, so could the landlords of poor women who might have to choose between paying rent and affording an abortion. 

The Court did not find Danforth’s argument convincing. In establishing third-party standing for providers, Singleton reasoned that the relationship between physicians and patients was a close one: patients needed physicians to have a safe abortion. And the Court suggested that patients would face obstacles in demanding their own rights: abortion cases could quickly become moot, and patients might wish to remain private rather than becoming part of a controversial suit.

But standing arguments never went away. At first, in the 1980s, antiabortion lawyers tried to narrow Singleton, arguing that it applied only to laws that directly restricted abortion. At the height of the clinic blockade movement, feminist groups tried to stop Operation Rescue protests that would shutter clinicsAntiabortion attorneys suggested that Singleton did not apply to anything but challenges to abortion bans or restrictionsThe same arguments came up when antiabortion attorneys defended preambles involving fetal personhood or statutes regulating the disposal of fetal remains

This argument intersected with efforts to recognize fetal rights in contexts not directly related to abortionStarting in the late 1980s, abortion foes tried to establish fetal personhood in homicide statutes, child-abuse laws, and laws limiting tort suits for wrongful birth or life. These efforts, groups like Americans United for Life hoped, would make Roe an outlier and create more of a legal foothold for arguments for fetal personhood. Rather than mounting a direct attack, abortion foes planned to chip away at abortion rights. Early standing arguments drew on the same logic. Instead of saying that Singleton was wrong, antiabortion lawyers insisted that it gave providers standing to challenge only a narrowly defined set of “abortion” laws. The Supreme Court did not weigh in on these arguments, and citing Singleton, lower courts rejected them. 

Antiabortion lawyers again tried to narrow Singleton after the Supreme Court handed down a decision in Planned Parenthood v. CaseyCasey jettisoned Roe’s trimester framework in favor of the undue-burden standard, and the Court upheld an informed consent law, suggesting that even if physicians’ rights were implicated, they could be subject to reasonable professional regulation—at least under the First Amendment. Antiabortion attorneys hoped that Casey would also usher in a new era in standing doctrine. Particularly in cases involving so-called partial-birth abortionsantiabortion lawyers insisted that doctors did not have standing to argue that restrictions were unduly burdensome

At that point, leading antiabortion lawyers developed a new strategy to reverse Roe by attacking the safety of abortion and Roe’s precedential effect in tandem. Attorneys working with Americans United for Life (AUL) emphasized Casey’s stare decisis analysis, which considered  whether Roe had produced any meaningful reliance interests. Casey answered that question in the affirmative, reasoning that Roe had allowed women to take advantage of economic, political, educational, and social opportunities. If women could not or should not rely on abortion, AUL lawyers believed, Roe and Casey would fall. 

AUL attorneys, like others in larger antiabortion organizations, believed that the Court would reverse Roe only if their movement could show that abortion was not a “necessary evil,” but instead harmed women.  “[G]raphic pictures of aborted babies [are] not a ‘silver bullet’ that will transform public opinion alone,” wrote Clarke Forsythe of AUL. “Instead, elevating the content and conduct of the public debate requires addressing both aspects—the impact on women as well as the impact on the child.” 

Standing arguments that impugned the doctor-patient relationship made sense as part of this new woman-protective strategy, and antiabortion lawyers frequently highlighted them in defending medical malpractice laws that targeted abortion doctors and informed-consent laws that included increasingly controversial statements. These efforts failed largely because of Singleton, but antiabortion lawyers hardly abandoned them

Starting in 2013, AUL promoted a legislative package, The Women’s Protection Project, said to protect women and girls from the profit-driven abortion industry.” Admitting-privileges laws like the one in June Medical ultimately became part of this strategy. So too were standing arguments. Antiabortion lawyers made them time and time again—in defending admitting-privilege laws, laws claiming that medical abortions could be reversed, and bans on abortion at a certain point in pregnancy

As others have pointed out, reversing Singleton would have powerful practical consequences. But it would also send a significant message about what may happen to Casey. If the Court easily dismantles Singleton, there is no reason to think the precedent-reversal strategy tied to standing arguments will be anything but a success. The science underlying claims that abortion hurts women is deeply contested—and rejected by leading medical authorities. And yet, as June Medical may show, those claims may just spell the end for abortion rights.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Blurring Public and Private Conduct

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

How the Right to Vote Became Fundamental  

8/26/20  //  Commentary

The Nineteenth Amendment helped cement the idea that the right to vote is a fundamental right inherent in citizenship