Explaining the third-party question in the Supreme Court abortion case
Third-party standing could impact abortion cases down the road.
The Supreme Court will be announcing a decision in a major abortion case soon, and while it's centered on one state law, another question has come up in the case that could have massive consequences for the future of abortion laws in America.
June Medical Services v. Russo is a challenge to a Louisiana law requiring abortion providers have admitting privileges with a nearby hospital, an agreement between a doctor and a hospital that allows a patient to go to that hospital if they need urgent care.
However, last year, shortly before the Supreme Court agreed to take on the case, Louisiana brought another question to the table, on the issue of third-party standing.
What is third-party standing?
Third-party standing is the legal concept that a third party -- like an abortion provider -- is allowed to argue on behalf of the person actually impacted: a patient. When the Supreme Court announced it would hear June Medical, it also agreed to hear the cross-petition from the state on third-party standing.
While Roe v. Wade, the landmark 1973 case that declared abortion a protected right, included an individual patient challenging the law, every major abortion case since then has been presented by providers and clinics like Whole Woman's Health, Planned Parenthood or June Medical Services.
Essentially, Louisiana was asking if June Medical Services had the right to challenge the law in the first place. Should the Supreme Court rule on that issue, it could change how abortion laws are handled in the foreseeable future, since third parties are the ones to typically challenge laws.
If the Supreme Court decides third parties cannot challenge abortion laws, patients themselves would have to challenge them. This could prove to be immensely difficult; abortion rights advocates point out that individuals may not want to challenge laws because it would make them a target to anti-abortion violence and harassment.
Individuals would also have trouble challenging laws given the limited time one has to get an abortion. The Louisiana law at the Supreme Court, for instance, was signed in 2014. Louisiana law bans abortions performed after 20 weeks of a pregnancy with limited exceptions, so if a patient seeking an abortion were to have challenged the law in 2014, that patient would have long surpassed that 20-week threshold by the time the Supreme Court agreed to take on a case in 2019 -- let alone by the time the court announced a ruling on it.
How third-party questioning was discussed in the case
Louisiana wrote in its petition to question third-party standing: "There is little evidence that their patients' interests actually align with Plaintiffs' position that the burdens of such protections exceed their value. On the contrary, undisputed record evidence (including of Plaintiffs' poor safety record, inadequate credentialing practices, and questionable efforts to undermine the law at issue) shows Plaintiffs are directly adverse to their patients' interests. It is hard to imagine a worse case for third-party standing."
In oral arguments for June Medical Services v. Russo, held in March, the third-party question came up in limited discussion. Center for Reproductive Rights attorney Julie Rikelman, representing June Medical, argued that the state brought up the question too late in the proceedings and there was significant precedent allowing for third-party standing both within abortion cases and in non-abortion-related cases.
Justice Samuel Alito, in particular, pressed Rikelman on the question of if abortion clinics and patients had aligned interests.
"Are these doctors in any different position than potential plaintiffs, women, who feel burdened by this law?" Justice Sonia Sotomayor asked after a round of questions from Alito.
"No, Your Honor," Rikelman responded. "And, in fact, the state has not pointed to a single thing that would have been different if one woman had been joined in this lawsuit. To the contrary, the issues that the state says are the key issues in this case -- whether this law serves health and safety benefits and how difficult it is for physicians to obtain privileges -- are issues that the physicians are particularly well suited to litigate."
After Rikelman acknowledged that some patients "could have" brought the case, Alito asked, "Well, then why can't... why shouldn't [patients] be the ones to bring suit?"
"Your Honor, this is a law that restricts abortion by regulating the physicians, rather than their patients, and so it's appropriate for them to be the plaintiffs here," Rikelman responded.
In the course of this line of questioning, Justice Stephen Breyer pointed out that should the court overturn third-party standing, they would likely have to then "directly or indirectly" overrule at least eight previous abortion cases argued at the Supreme Court.
"It's within the realm of possibility that [the Supreme Court] could address [third-party standing]," TJ Tu, a co-counsel on the case for the Center for Reproductive Rights, told ABC News in February, "and if they do, we're confident that they'll see there's over 40 years of precedent supporting our position and literally none supporting Louisiana's, so it'd be a pretty radical remaking of the law to say that abortion providers don't have third-party standing."
Indeed it would be. Other abortion cases currently in progress that are being brought by third parties could also be impacted if the Supreme Court makes a ruling against the standing, and already judges in other abortion cases are looking to the Supreme Court for guidance regarding third-party standing.
A district court judge in Georgia said last week he will not be making a decision on a case challenging a six-week abortion ban in the state until after the Supreme Court announces its June Medical decision, specifically citing that he's waiting for an answer on the third-party standing question.
It remains to be seen whether the Supreme Court will even touch the question -- and that, of course, could leave it open to more questions in cases down the road.