How the Supreme Court Could Gut Reproductive Rights Without Ruling on a Single Abortion Restriction

Julie Bindeman’s first pregnancy went so smoothly, and she and her husband were so enamored with their newborn son, that the couple decided to try for a second child as soon as possible. They conceived easily — just as they had the first time around — but then Bindeman miscarried. That reframed her thinking around pregnancy. “It wasn’t just, you get pregnant and have a baby, which had been my first experience,” she said. “Well, you can get pregnant and not have a baby, and that can happen really early.”

The couple decided to try again. Bindeman was anxious during the first trimester, bracing for another miscarriage. But that didn’t happen, and things seemed to be proceeding well. Then, at the 20-week mark, they received devastating news after a routine ultrasound: The fetus’s brain was not developing properly. If the fetus were to survive to term, it would never develop beyond a 2-month-old — it wouldn’t be able to walk, talk, or feed itself. “Our lives completely turned upside down,” Bindeman said.

After much conversation and reflection, and after consulting with their doctor, rabbi, and family, the Bindemans decided that they would terminate the pregnancy. Even though the couple lives in Maryland, which has scant restrictions on abortion and a relative wealth of providers, the Bindemans faced obstacles.

Just weeks earlier, in the spring of 2009, Dr. George Tiller, a world-renowned abortion provider based in Kansas who specialized in the type of later-term abortion that Julie Bindeman would need, had been assassinated in a church by an anti-abortion extremist. The killing sent a chill through providers across the nation. As a result, the closest abortion provider the Bindemans could find was in New Jersey, meaning that Julie would have to travel hundreds of miles to a state where she knew no one. That was unsettling, so in the end, she was forced to terminate her pregnancy in a local hospital via induced labor and delivery as opposed to the dilation and extraction method, which is safer, performed in a clinic, and used in 95 percent of later-term abortions.

It was a painful and traumatic experience that took several days, and yet Bindeman still understood that she was fortunate: She had resources and connections and, even though Tiller’s murder had spooked local providers, she still lived in a state that respected her right to decide whether or not to continue her pregnancy.

Had Bindeman been living in another state — like Texas, Oklahoma, Mississippi, Missouri, or Alabama, among others — not only would she have had to deal with the emotional and physical pain of losing a wanted pregnancy, but she would also have been forced to navigate a hostile legal landscape rife with the kinds of abortion restrictions that have proliferated across a large swath of the country, including arbitrary waiting periods, coercive counseling requirements, and, importantly, gestational abortion bans at 20 weeks — or even earlier.

And, if the state of Louisiana gets its way in a lawsuit currently pending before the U.S. Supreme Court, women in Bindeman’s position living in hostile states could have an extra burden to carry: In order to get access to the abortion services they need, they may personally have to challenge those restrictions in court.

Louisiana’s suit, which the court will consider during oral arguments on March 4, threatens not only to undo decades of precedent allowing abortion providers to mount legal challenges on behalf of their prospective patients, but also dismantle a century of precedent in other kinds of cases in which plaintiffs similarly seek to vindicate the rights of third parties.

It is the latest salvo in the ongoing effort of anti-abortion lawmakers to erode reproductive rights. Without ever ruling on the constitutionality of any particular abortion restriction, the Supreme Court, by ruling in favor of Louisiana, could make it practically impossible to challenge states’ increasingly draconian and punitive restrictions on abortion and ultimately eviscerate reproductive autonomy.

To Bindeman, the notion that she would have been able to navigate the legal system in order to gain her right to an abortion while simultaneously dealing with her medical circumstances is absurd. “I didn’t have the emotional or cognitive wherewithal; I was grieving,” Bindeman said. “It would have been too much to try to bring the challenge myself.”

Double Trouble in Louisiana

When the Supreme Court convenes on March 4, it will actually be considering two abortion-related challenges arising out of Louisiana. The first, known as June Medical Services LLC et al. v. Gee, is the kind of case that has become all too familiar. The Center for Reproductive Rights is representing a handful of Louisiana providers on behalf of themselves and their patients challenging a 2014 state law that requires all abortion doctors to have hospital-admitting privileges within 30 miles of clinics where they provide services. Abortion is a supremely safe procedure and rarely produces the kind of medical complications that necessitate a hospital stay, which is in part why it is so difficult for abortion doctors to obtain hospital privileges unless they have a broader area of practice. Only one Louisiana abortion provider has admitting privileges.

The Louisiana law is identical to one passed the previous year in Texas that was partly responsible for the closure of half the state’s abortion clinics — a consequence that Louisiana lawmakers clearly understood. In an email to the Louisiana bill’s sponsor, an anti-abortion activist noted that Texas’s admitting privileges law had “tremendous success” in closing clinics and restricting access to health care.

In upholding abortion rights, the Supreme Court has allowed leeway for states to pass laws that serve to restrict access in various ways, including when a restriction has some legitimate health benefit for women. After the Center for Reproductive Rights sued Texas on behalf of providers and patients, the state argued that the admitting privileges were necessary to protect women and provide continuity of care in the event that something should go wrong — among the same arguments Louisiana subsequently made in defending its law.

The federal district court in Texas disagreed with the state, finding that there was no health benefit and the law placed an undue burden on women seeking abortion. The U.S. 5th Circuit Court of Appeals disagreed, teeing up the case before the Supreme Court. In 2016, the court reversed the 5th Circuit, deciding in a landmark 5-4 opinion in Whole Woman’s Health v. Hellerstedt that the law was unconstitutional.

Following that opinion, the district court in Louisiana made similar findings in striking down the state’s admitting privileges law. And despite the Supreme Court’s clear mandate in Whole Woman’s Health, the 5th Circuit again disagreed with the lower court and upheld Louisiana’s law — thus pitching to the Supreme Court the exact question it had resolved a few years earlier.

Without saying much at all on the issue of admitting privileges or the underlying right to abortion, the court could nonetheless do devastating damage.

In the interim, just one thing has changed: There are two new white male judges on the Supreme Court to solidify a conservative majority. The fact that the court is now potentially reconsidering Whole Woman’s Health makes many people nervous that it may take the opportunity to do additional damage, including by revisiting Roe v. Wade, as a contingent of more than 200 conservative members of Congress has encouraged.

But without saying much at all on the issue of admitting privileges or the underlying right to abortion, the court could nonetheless do devastating and lasting damage to reproductive rights in the way that it decides the second Louisiana case: a counter-petition filed by the state, Gee v. June Medical Services LLC et al., which attacks a longstanding legal doctrine that allows plaintiffs to assert the rights of a third party that would otherwise face an impediment to vindicating their own rights.

In abortion-related litigation, this has been accepted practice for nearly 50 years, since individual women, such as Julie Bindeman, have a right to access abortion but lack a meaningful ability to assert that right in court — or a means to have that right upheld in a timely way. The Louisiana admitting privileges lawsuit, for example, has been pending for more than five years.

In order to assert the rights of others, a plaintiff must personally face injury from the regulation at issue and have a relationship with the third party. There also needs to be some obstacle to the third party raising its own rights. The courts have long held — including in Whole Woman’s Health — that abortion providers satisfy these three conditions when challenging state abortion restrictions.

But now, in briefs filed with the Supreme Court, Louisiana is arguing that the courts have granted standing to abortion providers based on “unexamined assumptions” that should be “abandoned.” They argue that abortion providers don’t have a sufficiently close relationship with their patients — as the state sees it, they don’t spend enough one-on-one time with them — and that there is no good reason that a woman couldn’t assert her own rights in court. They shrug off the notion that a woman might fear stigma or other harm in bringing a suit herself. “The notion that women considering abortion are unable to assert their own rights is a legal fiction,” lawyers for the Louisiana Department of Justice write in their petition, which notes that Roe v. Wade and its related cases were brought by individual women. Of course, in those cases the women filed suit using pseudonyms like “Jane Roe” precisely to protect their identities.

Louisiana also argues that when a health and safety regulation such as the admitting privileges law is at stake, there is an inherent conflict of interest between providers and patients that should preclude the providers from filing suit — after all, the law is meant to protect women from allegedly unfit doctors, they argue. “There is no basis to simply assume that women … get ‘what they want’ when the court allows a doctor to use women’s rights to challenge health and safety standards designed to protect women from those very doctors.”

To allow third-party standing in this case — and others like it — improperly grants abortion providers “favored” status, Louisiana argues.

embed2-1580934563 — Illustration: Chiara Ghigliazza for The Intercept

Shifting the Burden

On all these points, Louisiana’s arguments are lacking, according to Columbia University law professor Gillian Metzger. For starters, decades of precedent on third-party standing cut against the state’s claims. “They frame it as, ‘Third-party standing here is an example of abortion exceptionalism.’ But actually, third-party standing here is pretty standard,” she said. “It’s the effort to deny third-party standing here that would be exceptional.”

Metzger is one of seven federal courts scholars who have signed onto a friend-of-the-court brief that aims to set the record straight on the history, scope, and application of third-party standing.

Metzger argues that standing is a distinct question divorced from the strength of the case and that Louisiana “collapses” these two things “in a way that is problematic.” By claiming that there is a conflict between providers and patients when it comes to the admitting privileges law, the state presumes that it is correct in its assertion that the law actually protects women’s health. Historically, she notes, such regulations “rarely actually do that.”

And the state overlooks a crucial point, according to Metzger: The providers also have a right they seek to vindicate. “The idea is that I may not have direct reproductive rights that I’m asserting here, but I have a right, as a doctor, to only be subjected to … a rule or statute that is constitutionally valid,” she said. In other words, the rights of doctors and patients are intertwined and cannot be uncoupled. So if a regulation of doctors is meant to disrupt a woman’s ability to access abortion, it is unconstitutional. Therefore, as Metzger and her colleagues put it in their brief, if “a statute violates women’s due process rights, then it is not a valid rule of law and physicians should not be subject to penalties pursuant to it.”

If doctors aren’t allowed to bring suit, then individual women would have to carry the weight.

“In this context, you can’t separate these out,” Metzger emphasized. “It’s the very application of the regulation to the doctors that’s also injuring the women.”

It isn’t only abortion rights cases that could be impacted by a reversal of course on the application of third-party standing. Third-party standing has been accepted in a variety of other contexts, including when the relationship between the plaintiff and the third party is tenuous. In a seminal 1976 case, a beer vendor was allowed to rely on the rights of her potential customers in challenging an Oklahoma law. In criminal cases, defendants have been granted standing to assert the equal protection rights of potential jurors who were rejected for service based on race. Homeowners have been able to assert the rights of potential homebuyers of color targeted by racist neighborhood covenants, and teachers have been allowed to fight for the due process rights of students and their families.

How these types of cases might be impacted by a ruling in favor of Louisiana isn’t clear. But, if the court were to carve out some exception to the general rules on third-party standing to single out and deny abortion providers the ability to challenge regulations, Metzger said the immediate impact would be that the challenge to Louisiana’s admitting privileges law would be dismissed for a lack of jurisdiction. That would unravel five years of litigation and require an entirely new lawsuit to be filed. And if doctors aren’t allowed to bring suit, then individual women would have to carry the weight and likely only after the law has taken effect.

“If you work that through, how are women affected by the regulation? Well, they’re affected if there are not available doctors,” Metzger said. “So it may have to go into effect, and you have to lose the ability to get access to a doctor before you can sue.”

Since 2014, when Louisiana’s admitting privileges law was enacted, lawmakers in states across the country have passed a total of 278 abortion restrictions, according to Elizabeth Nash, senior state issues manager for the Guttmacher Institute. The Center for Reproductive Rights, Planned Parenthood, and the American Civil Liberties Union have challenged these restrictions in dozens of pending cases, nearly all of which involve third-party standing.

The Court’s Puzzling Logic

Why the Supreme Court has decided to hear Louisiana’s third-party standing challenge isn’t entirely clear. Indeed, over five years of litigation, the state never raised the issue of standing until the underlying case was accepted for the high court’s review. And that in itself is unusual, because the court would ordinarily rely on the fact-finding of the lower court and subsequent review by the appeals court before deciding whether to get involved. (In its brief to the court, the Center for Reproductive Rights argues that Louisiana’s silence on third-party standing over the years means that the state waived its right to mount a challenge now. The Supreme Court is being asked to decide who is right on this issue.)

There is one member of the court who has expressed clear disdain for allowing third-party standing in abortion cases.

But there is one member of the court who has expressed clear disdain for allowing third-party standing in abortion cases: Justice Clarence Thomas. A staunch opponent of abortion rights, Thomas wrote a dissent in the Whole Woman’s Health case that chastised the majority for allowing standing to groups it “favored.” The court “has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortion,” he wrote in 2016. And, as Louisiana has done in its counter-petition to the court, Thomas has said there is no reason individual women cannot come to court to vindicate their own rights. None of the other justices joined Thomas’s dissent. Nonetheless, the court could have accepted the case as a nod to Thomas.

Or it could be that the court wants to reassert its authority to decide when and if it will hear a particular issue. Here, the 5th Circuit subverted the Supreme Court’s Whole Woman’s Health decision in order to allow the Louisiana regulation to stand, thus pushing back on the high court. (Another friend-of-the-court brief penned by a group of constitutional law scholars urges the court to reassert its authority over the circuit courts.)

Metzger suggested that the court may have accepted the third-party standing dispute as something of a “off-ramp,” a case that it could decide without having to weigh in directly on the admitting privileges question. But that logic is also flawed, she said. In deciding not to disrupt precedent by revisiting Whole Woman’s Health, the court would be deciding instead to disrupt precedent on third-party standing. “That would have a huge impact and totally overturn a lot of litigation that has been going forward on the reliance of a very well-established doctrine,” Metzger said. “It’s not like you’re being institutionally consistent.”

What People Need

As Julie Burkhart sees it, Louisiana’s challenge to the legal standing of abortion providers is just another in a long line of tactics meant to erode reproductive choice. Burkhart is the founder and CEO of Trust Women, which runs several abortion clinics across the country. She worked with Dr. George Tiller for years, and her clinic in Wichita, Kansas, is in the same building that housed Tiller’s practice until his murder in 2009.

She’s concerned about what a change to the precedent could mean for her and her patients. “Putting the burden on women who are seeking abortion services is unrealistic,” she said. “It’s difficult, it’s challenging for individuals to bring suit. And then we’re also dealing with pregnancy: You have a pregnancy, and as we all know, pregnancy doesn’t stop.” She said that Trust Women and providers like it across the country have decades of experience and routinely act as advocates for their patients. “That’s certainly one of the ways that we seek to represent our patients, not only by giving them the high-quality medical care they deserve, but also by defending them in the judicial system and in the legislature,” she said.

“Medical practices, physicians being able to bring suit on behalf of their patients is commonplace,” she said. “It’s not something extraordinary. This is the way we operate, and it’s not broken.”

Not long after Julie Bindeman terminated her pregnancy, she and her husband conceived again. She was heavily monitored by doctors who were watching out for any sign that something was wrong with the fetus. At 18 weeks, they discovered the same brain deformity. Again, the couple was crushed and decided to terminate the pregnancy. This time around, Bindeman was able to find a local abortion provider and undergo a standard termination.

Talking to her doctor, Bindeman expressed feelings of isolation — she’d lost three pregnancies in a row; she didn’t know anyone like her. The doctor connected Bindeman with a woman who’d faced similar loss. The two talked for hours, became friends, and ultimately both carried additional pregnancies successfully to term. Bindeman and her husband now have three children.

She reflects on all the ways in which her doctors advocated for her: staying late to see her, pulling strings to help make arrangements, connecting her to others she could confide in. Bindeman, a licensed psychologist, says it’s similar to what she does for her patients. “As a provider, I fight for my patients too,” she said. “I do it because it’s what people need.”

And she sees no difference in what abortion providers do for their patients in court. “The idea that a physician can’t advocate for their patient is ridiculous.”

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