◼ REMARKS Bloomberg Businessweek March 9, 2020PHOTOGRAPH BY HEATHER STEN FOR BLOOMBERG BUSINESSWEEK
In 2016 the U.S. Supreme Court struck down a Texas law
that required a doctor performing abortions to have admit-
ting privileges at a nearby hospital. On March 4 the court
heard arguments in a dramatically similar case, a challenge
to a Louisiana law that has the same prerequisites the court
deemed unconstitutional four years ago. Anti-abortion groups
are hoping the addition of two conservative justices to the
court since 2016 will lead to a different outcome. Like the
Texas suit, this one could have dire implications for women
in the U.S. trying to get an abortion. Unlike the Texas suit, it
could also halt almost all litigation defending their right to
seek one in the first place.
The issue is who is entitled to challenge abortion laws.
The Louisiana case, like the one from Texas, was brought by
providers. The court has agreed to hear arguments not only
for and against the law but also on the question of standing—
whether the doctors bringing the case are entitled to be plain-
tiffs in the first place. During oral arguments on March 4,
Justice Samuel Alito questioned whether providers should
have the right to challenge health-and-safety regulations on
their patients’ behalf, saying they might have a “real conflict
of interest” with their patients.
Preventing the doctors from serving as plaintiffs could
have far greater ramifications for abortion access in America:
It could cause abortion lawsuits to grind to a halt, if only
because women seeking to end a pregnancy don’t have time
to wait for potentially extended and expensive courtroom
procedures. And it would deprive abortion clinics, already
under siege, of a vital weapon to defend themselves. “It’s
difficult to predict just how damaging the decision would
be because this is such a radical proposition,” says Michelle
Banker, senior counsel at the National Women’s Law Center.
For four decades, U.S. courts have allowed abortion doc-
tors to argue cases on behalf of their patients, representa-
tion made possible by the court granting them “third-party
standing” to do so. A case in 1976, Singleton v. Wulff, found
it “generally is appropriate” for providers to contest regula-
tions on their patients’ behalf. This concept can be invoked
in other instances, to allow schoolteachers to fight cases on
behalf of their students, or prosecutors on behalf of jurors,
provided they meet certain criteria.
The anti-abortion movement has shifted its tactics in recent
years, particularly as state houses, the Supreme Court, and
other federal courts have become more conservative. Efforts
used to be focused on protesting outside clinics. But in the
past decade the movement has found a more effective way to
limit abortion access: pushing lawmakers to pass measures
targeted at restricting clinics’ ability to do business. There’s
literally a playbook for this. Americans United for Life pub-
lished Defending Life 2020—the 15th anniversary edition—which
encourages anti-abortion activists to use state legislative ses-
sions to push laws that target providers. A state-level group
called Louisiana Right to Life (working with the Bioethics
Defense Fund) takes credit for drafting the admitting privi-
leges law now before the Supreme Court.On the question of standing, Louisiana is arguing that doc-
tors who provide abortions don’t have the “closeness” needed
to establish a relationship quite like other physicians have with
their patients. “And the whole history of constitutional litiga-
tion over abortion shows that women can and do assert their
own alleged rights in court,” the state said in its petition to the
Supreme Court in May.
Abortion-rights activists disagree. Putting the weight of
litigation on women seeking abortions forces them to find
lawyers in the short window in which they need the proce-
dure but are unable to get it done. A woman has to be preg-
nant when she files the case in order to be a plaintiff. The
woman then has to be willing to stick with the case for a sig-
nificant amount of time: Louisiana’s law is being challenged
at the Supreme Court six years after it passed. The majority
of women seeking abortions already have children, and half
live below the federal poverty line. A woman unable to find a
doctor to terminate an unwanted pregnancy would not only
need to have the time and money to pursue a legal case, but
would also need to know that a hospital-admitting-privileges
law was to blame for her local clinics’ closures.
Doctors and clinic owners have always been on the
front line of the abortion wars. That’s how the Supreme
Court found itself, in 2016, hearing Whole Woman’s Health
v. Hellerstedt. Amy Hagstrom Miller, owner of the Whole
Woman’s Health clinic in Texas, sued to block a 2013 law that
would have required abortion doctors in that state to have
admitting privileges at a nearby hospital and force her to turn
her clinics into surgery centers.
Proponents of the laws argue they’re designed to protect
women. But fewer than 1% of abortions result in an emer-
gency room visit for a complication. And the procedure’s rel-
ative safety creates a Catch-22: Hospitals don’t usually give
privileges to doctors who don’t regularly send patients. Says
Banker of the National Women’s Law Center: “Ultimately what
they’re trying to do is vilify abortion clinics and politicize this
long-standing doctrine [of standing] and close the doors to
people whose rights have been violated.”
In Louisiana, should the law proceed, only one physician
would be able to provide services for the 10,000 women
who get abortions each year, according to the Center for
Reproductive Rights. In Texas, half of the clinics closed as a
result of the state’s admitting privileges law, one of Hagstrom
Miller’s among them. She was able to take her fight to the
Supreme Court because as a provider she had standing.
The surprise wasn’t that Louisiana made the argument on
standing, but that the court decided to take it up. In doing
so, it has legitimized a new line of attack for anti-abortion
activists. “Even if the Supreme Court doesn’t get rid of third-
party standing or doesn’t rule against us in this case, we’re
going to continue to have this battle for years to come,” says
T.J. Tu, senior counsel at the Center for Reproductive Rights,
which is representing the plaintiffs. “What we’re seeing is the
anti-abortion legal movement frame the terms of the con-
versation for the next decade.” <BW> —With Rebecca Greenfield11