Federal government’s brief in abortion case supports Louisiana’s position, raises possibility of overruling Whole Woman’s Health

On March 4, the Supreme Court will hear oral argument in one of the biggest cases of the new year: the challenge to the constitutionality of a Louisiana law that requires doctors who perform abortions to have the right to admit patients at a nearby hospital. Four years ago, the justices struck down a similar law from Texas, by a vote of 5-3. But the court has changed since then: Justice Anthony Kennedy, who joined his more liberal colleagues in voting to invalidate the Texas law, retired in 2018 and was replaced by Justice Brett Kavanaugh, while Justice Neil Gorsuch filled the empty seat created by the death of Justice Antonin Scalia. Last year it was Chief Justice John Roberts, a dissenter in 2016, who provided the fifth vote to temporarily block Louisiana from enforcing the law. In their brief on the merits, the abortion providers challenging the Louisiana law portray the case as simple: Because the Louisiana admitting-privileges requirement is “materially indistinguishable” from the Texas law that the court deemed unconstitutional in 2016, it too must be struck down.

Yesterday the federal government weighed in, in a “friend of the court” brief in which it urged the justices either to throw the case out or, alternatively, to allow the admitting-privileges requirement to stand. And if necessary, the federal government told the justices, the Supreme Court should overrule its 2016 decision in the Texas case, Whole Woman’s Health v. Hellerstedt, in which the federal government had argued in support of the abortion providers.

As a threshold matter, the government told the justices that they do not need to reach the merits of the abortion providers’ challenge at all, because the providers lack a legal right to sue, known as “standing.” As a general matter, a plaintiff can only file a lawsuit to protect his own rights, rather than the rights of others. Abortion providers don’t have a right to perform abortions, the government observed, and are therefore relying on the right of their patients to obtain an abortion.

Courts have sometimes “relaxed” the general rule against “third-party standing,” the government explained, when the law that is being challenged also regulates the plaintiff who is challenging the law. But the Supreme Court has not relaxed the rule when, as in this case, there is a possible conflict between the interests of the plaintiff and those of the people whose rights are supposedly being violated. Here, the government suggested, the law creates additional costs for abortion providers without providing them with any benefits; by contrast, the law was intended to protect women in Louisiana, who could sue if they wanted to but may have good reasons not to. Moreover, the government added, abortion providers don’t have the kind of “close relationship” with their prospective patients that would allow them to sue on the patients’ behalf. Indeed, the government noted, abortion providers frequently see their patients only once, and often meet them only after the patients have been sedated.

But if the justices believe that the abortion providers do have a right to sue, the government continues, the Supreme Court should uphold the decision of the U.S. Court of Appeals for the 5th Circuit and allow Louisiana to enforce the admitting-privileges requirement, because the law is constitutional. The Supreme Court’s 1992 decision in Planned Parenthood v. Casey made clear that the central question before the court in this case is whether the abortion providers have shown that the admitting-privileges requirement will create a “substantial obstacle” for Louisiana women who want an abortion; the 5th Circuit “correctly” ruled that they had not, the government wrote, and the abortion providers don’t argue otherwise.

Although the abortion providers argue that, after Whole Woman’s Health, courts should apply what the government characterized as a “freestanding benefits-burdens balancing test,” the government continued, Whole Woman’s Health “did not abandon Casey’s central holding that a law imposes an undue burden only if it creates a substantial obstacle to obtaining an abortion.” If it is not possible to read the Supreme Court’s decisions in Whole Woman’s Health and Casey “to cohere, not conflict,” the government adds, then Whole Woman’s Health should be “narrowed or overruled.”

Finally, the government told the justices that even if they were to “adopt the pure balancing approach advocated by” the abortion providers, they should still uphold the admitting-privileges requirement because the requirement imposes a “minimal” burden on Louisiana women, who would have to wait “less than an hour” to get an abortion. And the requirement would bring a variety of benefits, the government argues, ranging from ensuring that doctors who perform abortions meet the same standards as other doctors who perform outpatient surgeries to addressing the “profound ethical concerns presented by atrocities at abortion clinics like those run by Kermit Gosnell,” the Philadelphia doctor who was convicted of murder for the deaths of three infants who were born alive during an abortion before Gosnell severed their spinal cords.

U.S. Solicitor General Noel Francisco also filed a motion to participate in the oral argument in March. Lawyers for the state, he informed the justices, have agreed to give the government 10 of their 30 minutes of argument time.

This post was originally published at Howe on the Court.