The First Question Before the Court in June Medical Services v. Russo
As explained here, the Supreme Court will hear arguments next Wednesday on a case challenging the constitutionality of a Louisiana law requiring abortionists to have admitting privileges at a nearby hospital. While the Court agreed to take the case, it also issued a “stay,” which prevents the law from taking effect while the Justices consider the matter.
The Court will almost certainly first decide whether the plaintiffs — an abortion clinic and two abortionists — have standing to assert the constitutional rights of their future patients in challenging the law. But before getting to that question, the Court has to deal with whether Louisiana waived—or forfeited—its right to raise an objection to the clinic and doctors bringing the case, since that issue was not raised in the lower federal courts.
If the Supreme Court finds that the objection to the abortion providers’ standing was waived, thus allowing the clinic and doctors to continue their challenge, the Court will then decide whether or not the admitting privileges law is constitutional.
However, if the Court decides the issue was not waived, it has several paths, including:
- It could rule that either the doctors or the clinic or both have standing to bring the challenge, and then proceed to decide on the constitutionality of the law.
- It could rule that neither the doctors nor the clinics could ever have standing to assert the constitutional right of their patients, and never address the constitutionality of the law.
- It could rule that neither the doctors nor the clinic has standing under the particular facts of this case, where the restriction at issue bears directly on the qualifications of the doctors, creating at least the appearance of a conflict of interest between the abortion providers and the women whose constitutional rights they are attempting to represent.
If the Court wants to proceed cautiously and decide as little as possible, the last scenario is most likely. In either the second or third scenario, the Court would almost certainly not rule on the constitutionality of the law, but would instead return the case to the lower court with instructions to dismiss, leaving the pro-abortion forces to try to find another way to get the law struck down.
But that’s the easy part. If the Court reaches the merits of the case—i.e., the question of whether the admitting privileges law is constitutional or not—it will be confronted with the confusion its own decisions have caused by creating vague standards that defy consistent application by the states or the lower courts. We’ll talk about that next time.