Next week—for the first time since Justices Gorsuch and Kavanaugh joined the bench—the Supreme Court will hear arguments in a case involving abortion. On the docket is June Medical Services v. Russo, a constitutional challenge to a Louisiana law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of where the abortion takes place.
Life Legal submitted amicus briefs in support of the pro-life law, and we’ll be there on March 4 to watch the Supreme Court argument in this critical case.
In 2014, concerned by reports of dangerous practices and conditions in its abortion facilities, Louisiana passed the “Unsafe Abortion Protection Act.” The law was immediately challenged by three abortion clinics and two abortion doctors who argued that the law imposed an unconstitutional burden on women seeking abortions. The federal district court imposed a temporary restraining order followed by a preliminary and then a permanent injunction, preventing the law from taking effect.
The Fifth Circuit reversed and found the law constitutional. The Court distinguished both the law’s history and its practical effects from that of a similar admitting privileges law from Texas, which the U.S. Supreme Court struck down in 2016. In that case, Whole Women’s Health v. Hellerstedt, a 5-3 majority, including now-retired Justice Anthony Kennedy, found the Texas law would lead to the closure of most abortion clinics in Texas while providing no benefits to the health or safety of women.
Despite the fact that the Louisiana admitting privileges law had never taken effect, two of the three plaintiff clinics in Louisiana went out of business while the case was proceeding in the lower courts. The remaining clinic, June Medical Services, and the two abortion doctors appealed the Fifth Circuit decision to the Supreme Court, which agreed to hear the case.
However, the high Court also agreed to hear Louisiana’s cross-petition, calling on the Court to determine whether these abortion providers had “standing” to bring constitutional claims on behalf of their future abortion-seeking patients.
For decades, abortion clinics and individual doctors have been allowed to bring constitutional challenges to abortion restrictions by claiming that they represent their patients’ interests. In the context of abortion, this procedure, known as “third party standing,” has allowed self-interested clinics and doctors to make claims about the wishes of their future hypothetical patients and the hardships particular abortion restrictions might impose, while preventing the state from examining and testing those claims with real people and provable facts.
Louisiana is arguing that third-party standing is particularly harmful here, where the admitting privileges requirement is one that is specifically intended to protect women from incompetent or unscrupulous abortion providers.
The Supreme Court has not examined the issue of abortion provider standing for decades. That twist, along with the addition of Justices Gorsuch and Kavanaugh to the bench, has court watchers eagerly awaiting the argument for clues about how the Court will rule.