Today, the Supreme Court will hear oral arguments in a case involving a Louisiana law requiring that abortionists have hospital admitting privileges (June Medical Services v. Russo).
The state legislators who passed the requirement and the governor who signed their bill into law did so in light of a long string of abortion industry abuses that put the lives of Louisiana women at risk. Bayou State abortionists and abortion clinics — the very interests whose practices placed the state’s women in medical jeopardy, the very interests that Louisiana policymakers believed needed regulation to protect Louisiana women seeking an abortion — sued to block the law, claiming to defend the “rights” of their future clients and customers.
The case would be laughed out of court if, say, automakers claimed to represent the “rights” of their customers in objecting to car safety requirements. Or if the fox claimed to represent the interests of the hens in the chicken coop. Sadly, that’s not the case when it comes to regulating abortionists.
June Medical Services v. Russo gives the Supreme Court an opportunity to correct the flawed jurisprudence that has given “standing” to parties with a clear conflict of interest in the abortion arena. For all of its problems, the tragic 1973 Roe v. Wade decision creating a constitutional right to abortion was at least filed on behalf of an anonymous woman, Jane Roe. Since Roe, however, abortionists and abortion clinics are the ones most often running to our courts to oppose reasonable regulation, regulation designed to protect women at their most vulnerable, of their business.
The 1992 Supreme Court case of Planned Parenthood v. Casey, which ruled that any abortion regulation would be unconstitutional if it placed “substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability,” was brought not by any aggrieved woman in Pennsylvania, but by five abortion clinics and an abortionist. The foxes were being allowed to bring cases challenging henhouse safety regulations.
In 2016, the court accepted the legal challenge of abortion providers and struck down a Texas law requiring doctors who provide abortions to have admitting privileges at a nearby hospital in a 5-3 decision. Justice Clarence Thomas denounced the sloppy legal standards and slippery reasoning of his colleagues in his scathing Whole Woman’s Health v. Hellerstedt dissent. The majority, he wrote, “erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.”
The challengers to the Louisiana law are abortion clinics and abortionists — not one female patient or prospective patient joined them. While Louisiana’s law is similar to Texas’s, this case differs in important ways. Louisiana legislators were reacting to a well-chronicled record of health and safety violations on the part of Louisiana abortionists. Botched abortions, incompetent doctors, failure to stock emergency materials, lack of oversight of controlled substances, and gross medical negligence had placed women at serious risk. Interestingly, Louisiana requires all other ambulatory surgical doctors in the state to have hospital admitting privileges. The new law merely closed a loophole granting special treatment to abortion doctors.
The “standing” rules in abortion cases have been bent so far that they are now broken. A person generally can go to court only to assert his or her own legal rights and interests. A narrow exception to this “standing” rule is when the third party has a close relationship to the right-holder, or the right-holder is unable to sue and can trust the third party to pursue his or her interests.
The conflict of interest at work in the abortion arena is spelled out in a number of “friend of the court” briefs. “The interests of abortion providers and the interests of Louisiana women do not run in ‘parallel’ with respect to [the Louisiana law],” the U.S. Department of Justice said, “but instead are ‘potentially in conflict.’” Louisiana legislators pinpoint the divergent interests: “One of the women’s interests is in protecting their safety when having an abortion, and one of the doctors’ interests — to eliminate a law that places a regulatory obligation on them — directly conflicts with that.”
More than 200 members of Congress also state that “abortion providers’ interests are at odds with their patients’ interests,” and 20 states specifically objected to the abortionists’ standing to file suit: “Abortion-law cases have become vehicles by which abortion practitioners and facilities attack health-and-safety regulations designed to protect women — the same women whose rights the practitioners claim to invoke — from the practitioners themselves.”
The Supreme Court should pay heed. It’s time abortionists and abortion clinics no longer be allowed to pretend to speak in court on behalf of women when it comes to the health and safety of their clients or customers.
Andrea Picciotti-Bayer is Legal Advisor for the Catholic Association and co-host of the podcast Conversations with Consequences.
