The Trump administration filed a brief last week with the U.S. Supreme Court in June Medical Services v. Gee backing Louisiana’s claim that the abortion provider plaintiffs don’t have standing to challenge the state’s targeted regulation of abortion providers (TRAP) law on behalf of their patients.
The brief is a hodgepodge of nonsense arguments that are directly contradicted by Supreme Court precedent and the kind of shoddy two-bit lawyering we’ve come to expect from Solicitor General Noel Francisco’s office.
But first, some background is in order.
June Medical Services is the first big abortion rights case the Supreme Court will hear since Whole Woman’s Health v. Hellerstedt in 2016. Ironically, the case—about an admitting privileges law (Act 620) requiring abortion providers to maintain admitting privileges at a local hospital—is identical to the Texas law the Supreme Court struck down in Whole Woman’s Health. Despite admitting that it enacted the law because Texas was so successful in wielding the policy to shutter clinics, Louisiana is wedded to its insincere claim that the law is intended to promote women’s health and safety.
A group of providers in Louisiana filed a lawsuit in 2014 challenging Act 620 as an undue burden on a person’s constitutional right to obtain an abortion. Louisiana repeatedly conceded—both in district court and in the Fifth Circuit Court of Appeals—that the providers had standing to assert these claims. Nevertheless, five years later, in 2019, Louisiana filed a Hail Mary request with the Supreme Court, arguing for the first time that the providers in the lawsuit cannot challenge the law on behalf of their patients because they do not have standing.
Standing arises from the “case or controversy” requirement in Article III of the Constitution and is intended to preserve the proper role of the federal courts when it comes to presiding over lawsuits. Standing ensures that a person before the court has a personal stake in the litigation rather than just an interest in airing grievances. A party before the court must have an injury that the court can remedy. And generally speaking, a person is not permitted to vindicate the rights of third parties who are not before the court as parties themselves.
In some cases, however, courts make an exception and allow third-party standing if the person before the court has actually suffered an injury, has a close enough relationship to the third party whose rights the person before the court is trying to vindicate, or there’s a hindrance to the third party’s ability to file a lawsuit to protect their own interests.
That’s what we have here. The Louisiana abortion providers have suffered an injury: The TRAP law targets abortion providers for onerous requirements not required of other medical doctors in Louisiana, and failure to adhere to these requirements subjects providers to civil and criminal sanctions, including loss of their medical license. Providers have an obviously close relationship to their patients. They both want the same thing: for abortion care to be available absent requirements that provide no tangible benefit. And there is a hindrance to a pregnant person asserting their own rights, due to the stigma surrounding abortion and the fact that pregnancy is finite, while it takes years for litigation to be resolved.
Certainly, a pregnant person can sue under a pseudonym, as Norma McCorvey did when she sued as Jane Roe in Roe v. Wade. And a pregnant person may retain their right to litigate a case, even after they are no longer pregnant and no longer have an injury the court can remedy, because the claim is “capable of repetition yet evading review.”
That’s legalese for: a person can be pregnant at the outset of litigation and will no longer be pregnant at some point during the litigation, and courts can’t keep throwing out cases once the person is no longer pregnant, otherwise this issue will never be resolved.
But even still, one can imagine that there are not a lot of pregnant people who want to be or have the time to be at the center of a national case making a claim that they have a constitutional right to an abortion.
Fortunately, in 1976, the Supreme Court resolved the issue regarding whether providers can assert claims challenging abortion restrictions on their patients’ behalf in a case called Singleton v. Wulff: “There seems little loss in terms of effective advocacy from allowing [the claims’] assertion by a physician.”
The Court ruled in Singleton that abortion providers had third-party standing to challenge a Missouri law that precluded Medicaid benefits from being used for abortions that were not “medically indicated.” In reaching its conclusion, the Court applied key criteria to determine whether third-party standing was appropriate: whether a close relationship exists between the plaintiff and the third-party pregnant people whose rights the physicians seek to represent, and whether the third party is hindered from enforcing their own rights.
The Court ruled that it was “appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”
And so it has been for nearly 45 years. Singleton has been affirmed again and again, both in cases about abortion and cases having nothing to do with abortion. But the brief that the Trump administration filed makes no mention of the Singleton case.
Let me repeat that: The Trump administration argued in a brief filed with the Supreme Court that abortion providers don’t have standing to sue on behalf of their patients, and did not bother to mention the Supreme Court case that says, yes, abortion providers do have standing to sue on behalf of their patients.
It’s bizarre at best and an ethical violation at worst.
There are rules governing the professional conduct of lawyers. Lawyers are supposed to be forthright when they argue in court or file documents with a court; they cannot simply ignore case law that is bad for their client. For example, the American Bar Association’s rules of professional responsibility includes Rule 3.3(4), which says “legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.” (Emphasis added.)
Is it possible that lawyers for the Trump administration had just never heard of Singleton v. Wulff? Did they draft a brief without looking at Louisiana’s petition for certiorari on third-party standing (which discusses Singleton) or the response from the abortion providers (which also discusses Singleton)? That’s highly unlikely.
But even assuming the administration’s lawyers simply drafted a brief without reading any of the briefing that came before it, the Trump administration’s brief heavily cites a case about third-party standing which the Supreme Court specifically distinguished from Singleton. And still the administration didn’t bother to discuss Singleton.
That heavily cited case is called Elk Grove United School District v. Newdow. In that case, a father who shared joint custody of his daughter sued Elk Grove School District in California, claiming that forcing his daughter to recite the Pledge of Allegiance was a First Amendment violation. The child’s mother sought to intervene in the lawsuit and dismiss the case because of a custody order that gave the mother sole legal custody when it came to decisions regarding the child’s health, education, and welfare. The Supreme Court ruled that the father did not have third-party standing to bring the lawsuit on his daughter’s behalf because the Court said that the rights of the father and his child “are potentially in conflict.” (Indeed, the child’s mother said that her daughter had no objection to saying the Pledge of Allegiance.)
Specifically, the Court said:
In marked contrast to our case law on jus tertii [that’s Latin for “third party standing”], see, e.g., Singleton v. Wulff, 428 U.S. 106, 113—118 (1976) (plurality opinion), the interests of this parent and this child are not parallel and, indeed, are potentially in conflict.
In its brief, the Trump administration likened June Medical Services to Elk Grove School District, hoping the Supreme Court will rule in June Medical Services that there doesn’t need to be an actual conflict, but merely potential conflict.
The administration has honed in on the argument that there is a conflict of interest between abortion providers and pregnant people seeking an abortion. In the administration’s estimation, abortion providers are willfully trying to avoid compliance with a law that promotes the health and safety of pregnant people, and, surely, no pregnant person can be aligned with a doctor trying to skirt compliance and perform unsafe abortions.
According to the Trump administration, where health and safety regulations are involved, there’s a potential conflict between the interests of providers and patients. That potential conflict is enough to destroy third-party standing at the outset:
In any abortion case involving challenges to State health and safety regulations, the conflict of interest between clinics and their patients is patent and all but inevitable. They therefore do not and cannot have the kind of “close relationship” ordinarily required for third-party standing.
Setting aside the fact that the Court has recognized that abortion providers have third-party standing in other abortion cases challenging health and safety regulations—in City of Akron v. Akron Center for Reproductive Health, the Court permitted a third-party challenge to a health regulation that required second trimester abortions be performed in a hospital; in Planned Parenthood of Central Missouri v. Danforth, the Court permitted providers to challenge a ban on a particular abortion procedure that the state claimed was deleterious to maternal health; and in Doe v. Bolton, the Court permitted providers to challenge a law that abortions be performed in accredited hospitals, supposedly for health and safety reasons—the Court has already ruled in Whole Woman’s Health that there is no health and safety benefit to this particular admitting privileges law because Louisiana’s law is identical to the law struck down in Whole Woman’ Health.
If there’s no health and safety benefit, then there’s no conflict, potential or actual. It’s that simple.
The administration has been left to file a brief that contains a dubious argument that the mere potentiality of a conflict destroys third-party standing. The brief manages to ignore Singleton, which for nearly 45 years has permitted third-party standing, while drawing the Court’s attention to a case, Elk Grove School District, that the Court said in that very case is different from Singleton and the Court’s other third-party standing jurisprudence.
Simply put, it’s a bad brief containing bad arguments.
But providers have had great success in obtaining preliminary injunctions that block anti-choice laws from going into effect almost as soon as states pass them. These injunctions block the laws for the duration of the litigation and preserve access to abortion while states make their case that the laws are not an undue burden under Planned Parenthood v. Casey. And given that states have become increasingly fervent about not just passing laws that restrict abortion, but implementing those laws, bad briefs containing bad arguments might be enough for the hyperpartisan conservative Supreme Court to ignore precedent and its long-held rules about standing.
If at the end of this term, the Court decides abortion providers can no longer sue on their patients’ behalf, anti-choice state lawmakers will have won a huge victory allowing them to pass whatever abortion restrictions they like in the name of advancing patient health and safety, and to enforce them until abortion advocates find a pregnant person willing to step into an increasingly hostile spotlight in order to challenge them. And that inches states closer to their goal of eliminating access to abortion, one way or another.