What if it were virtually impossible to fight an abortion ban in court?
On Tuesday, the American Civil Liberties Union got a judge to block one of the most extreme pieces of anti-abortion legislation the country has ever seen: a near-total abortion ban that Alabama’s governor signed in May and was set to go into effect in November. It’s the seventh abortion ban the ACLU has gotten struck down in court in recent months, meaning the organization has now blocked nearly every early abortion ban passed in 2019. The plaintiffs in these cases are clinics, like Planned Parenthood, or abortion providers, like Yashica Robinson, whom the ACLU is representing in the Alabama suit.
For decades, this is what it has looked like to challenge abortion restrictions in court. Rather than pregnant patients challenging the laws that prevent them from accessing their abortion rights, organizations like the ACLU, Planned Parenthood, and the Center for Reproductive Rights argue against the laws with providers and clinics as their clients.
That’s because those abortion providers and clinics have what’s known as “third-party standing,” the legal standing to advocate on behalf of their patients. Without it, lawyers would instead have to find a pregnant person willing to go through years of court proceedings and litigation, a demand that experts say would prevent cases from getting to trial in time to stop anti-abortion laws from taking effect—even blatantly unconstitutional ones like Alabama’s.
A measure hidden within June Medical Services v. Gee, the abortion case the Supreme Court will rule on in the next year, would target third-party standing. When Supreme Court justices agreed to hear Louisiana’s law requiring abortion providers to have hospital-admitting privileges—which is identical to a Texas law the court struck down in a landmark 2016 ruling—they also agreed to rule on a cross-petition from the state that argues doctors and clinics can’t speak for their patients.
The court’s ruling on the admitting privileges law could severely undermine Roe v. Wade, and lead to clinics shutting down across the country. But a ruling that overturned third-party standing would be equally, if not more, catastrophic for the future of abortion rights, said T.J. Tu, one of the lead attorneys for the Center for Reproductive Rights who's arguing the Louisiana case before the Supreme Court.
“If providers don’t have standing, it’s a looming question of whether blatantly unconstitutional criminal statutes would even get into court, and certainly whether we’d get into court in time to prevent such a flagrantly unconstitutional law [like Alabama's] from going into effect,” Tu told VICE. “These sorts of cases for all practical purposes will go away because there will be no one left to bring them.”
Crucially, a ruling to overturn third-party standing would also work retroactively, which means all of the court challenges to abortion bans currently winding their way through the appeals process that don't have a pregnant person as the plaintiff would be wiped out. And it could go even further than that: Getting rid of the federal court procedure would also call into question every past abortion case that did not have a patient plaintiff—that is, nearly every major case since Roe v. Wade was decided in 1973. (“Roe” was a pseudonym for the pregnant woman in the landmark case.)
“It would take a wrecking ball to 40 years of abortion jurisprudence,” Tu said.
One of the vital precedents these cases helped establish was the “undue burden” test, which says that states can’t pass restrictions on abortion that create an unnecessary barrier to the procedure.
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Third-party standing was established in 1976 in Singleton v. Wulff, a case that had to do with whether Missouri’s Medicaid program could exclude covering abortion; it was brought against the state by two Missouri physicians. As part of the ruling, then-Justice Harry Blackmun asserted that those physicians—and physicians in general—had the ability to speak for their patients. “Aside from the woman herself, the physician is uniquely qualified…to litigate the constitutionality of the State’s interference with, or discrimination against” her abortion rights, he wrote.
Blackmun also pointed out that there are significant obstacles that would make it difficult for someone seeking an abortion to take up the additional task of fighting for their rights in court. Legal experts emphasize that pregnant people who want abortions have more pressing interests—like accessing the procedure they may have been denied because of unconstitutional restrictions. Low-income women, who made up half of all women who got an abortion in 2014, would have an especially hard time entering into a lengthy legal battle, experts say.
“Abortion providers have more resources than individual pregnant women,” said Mary Ziegler, a professor at Florida State University College of Law. “Pregnant women are pregnant, which makes it harder to launch lawsuits when they may have other concerns—like their own health.”
Anti-choice advocates say eliminating third-party standing would protect women, because they believe abortion providers’ interests are diametrically opposed to their patients'.
"It would take a wrecking ball to 40 years of abortion jurisprudence."
Steven Aden, the chief legal officer and general counsel at Americans United for Life, the country’s largest anti-abortion legal organization, argues that restrictions on abortion are designed to protect women from the doctors who provide them, because those doctors are performing a “medical procedure for non-medical reasons.” AUL is the architect of the Louisiana abortion law at the center of the Supreme Court case; state legislators hoping to replicate it were once able to find a fill-in-the-blanks form on the AUL’s site called “The Abortion Providers’ Privileging Act.” (The legislation template has been taken down, though Aden said there is “no particular reason” for its removal.)
AUL also filed an amicus brief in support of the Louisiana cross-petition in June, arguing that abortion providers “do not have a close relationship with their patients and should not have third-party standing.”
“We think it’s time for the court to re-examine the cases that have given a path—a carte blanche—to abortionists to go into court and claim they stand for women when in many cases they don’t,” Aden said. “Health and safety laws are designed to protect women from their dirty and dangerous operations.”
Tu says Aden’s argument would require the justices to ignore overwhelming evidence that shows abortion is safe and effective, and disregard findings that show anti-abortion restrictions—like requiring clinics to have hospital admitting privileges, for example—are medically unnecessary and can even make the procedure less safe by forcing people to have abortions later in pregnancy. In addition to the decades of precedent that supports third-party standing, Tu believes this medical consensus strengthens arguments in favor of the federal court procedure.
“If you acknowledge the facts, it’s obvious that patients' and providers’ interests are aligned,” Tu said. “They’re both walking in lockstep to prevent the state from imposing dangerous and unnecessary regulations on their relationship.”
Still, anti-choice officials across the country are rallying together to insist otherwise. A dozen states have signed onto an amicus brief arguing in favor of eliminating third-party standing. (Senator Josh Hawley of Missouri filed his own brief as well.) Tu said it’s no coincidence that these states—Alabama, Idaho, Indiana, Kansas, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia—are also known for their hostile abortion policies. They see a new path to advancing their anti-abortion agenda, one that would leave little room for recourse from their pro-choice opposition, experts say.
So, why isn’t the third-party standing element of this case getting more attention?
Ziegler said the highly legalistic nature of the concept can make it difficult for the public to understand, especially since it doesn’t seem to apply to Roe v. Wade directly. People have also been hyper-focused on “headline-grabbing” abortion bans like Alabama’s, Tu added, because they’re so boldfaced in their attempts to criminalize abortion.
“We should be deeply troubled by the bans,” Tu said. “But many of the things anti-choice advocates are doing have the practical effect of banning abortion even if they’re not banning it outright, whether it’s TRAP laws that put abortion out of reach for most or all women or whether it’s changes to the law that prohibit … advocates from bringing these cases to court.
“This is all part of a strategy,” he said. “This all has the same goal.”
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