Symposium: After 40+ years it is clear women can speak for themselves

Teresa Stanton Collett is a professor law and director of the Prolife Center at the University of St. Thomas School of Law in Minneapolis. She filed an amicus brief on behalf of the petitioner in Gee v. June Medical Services. The views expressed here are hers alone and are not intended to represent the views of the university.

In June Medical Services v. Gee, the Supreme Court has granted review of a decision by the U.S. Court of Appeals for the 5th Circuit upholding the constitutionality of a Louisiana statute requiring physicians to obtain admitting privileges at a nearby hospital prior to performing abortions. The court, in the consolidated case Gee v. June Medical Services, also agreed to review the application of third-party-standing doctrine to the abortion providers’ challenge to health-and-safety regulations on behalf of their patients. My comments will focus only on the second topic – third-party standing in abortion cases.

Three years after Roe v. Wade, a plurality of the Supreme Court granted abortion providers third-party standing to demand public funding for medically necessary abortions in Singleton v. Wulff. As an exception to general standing requirements, the plurality applied a three-part test to the abortion providers’ claim that they should be allowed to represent the interests of their patients. The court required first that the providers show they had standing due to a concrete and cognizable injury from the failure to provide taxpayer funding for abortions. Second, the providers had to demonstrate a close relationship to their patients, the third party not before the court. Third, the patients’ absence had to be due to some “genuine obstacles” or “hindrances” to the patients’ presenting their own claims to the court.

Justice Harry Blackmun, writing for the plurality, accepted the claim that providers were in a sufficiently close relationship with their patients that they could vigorously and effectively represent the women’s rights, and that requiring women to sue on their own behalf would violate the patients’ right to privacy regarding their desire to obtain abortions.

Justice Lewis Powell, joined by Chief Justice Warren Burger and Justices Potter Stewart and William Rehnquist, concurred in the judgment, but expressed grave reservations about the application of third-party-standing doctrine to abortion cases generally. He cautioned that applying this exception in future cases might prove difficult to “cabin” and might “invite[] litigation by those who perhaps have the least legitimate ground” to challenge state actions.

Blackmun acknowledged these possibilities in a footnote, but he dismissed them: “It is true that it is more difficult to predict the pattern of results in future cases when the Court elects to proceed, as it does today, by assessing relevant factors in individual cases … rather than by adopting a set of per se rules, … [but] we simply decline to speculate on cases not before us.”

Today, in deciding the third-party-standing issue in June Medical Services, the court need not speculate as to the impact of Singleton. It has now been 40-plus years since Roe and Singleton. Assessing the impact of Singleton on abortion litigation generally no longer requires speculation. It merely requires reviewing the identity and nature of the plaintiffs who have challenged abortion laws in federal courts, and the courts’ application of third-party standing to these cases.

In trying to determine whether there were “genuine obstacles” or “hindrances” to the patients presenting their own claims in abortion cases, I reviewed 637 federal cases decided between January 1, 1973, and December 2019. State cases and federal cases involving tort or criminal charges brought against individual doctors for providing abortions, wrongful birth actions, immigration and/or asylum cases involving abortions that took place in another country, clinic protest cases, and general birth-control-access actions were excluded from the study. Remaining cases were classified by whether the case was initiated by women seeking abortions, clinics or physicians providing abortions, a combination of patients and providers, or some other party. The results are striking. They are contained in the appendices to the amicus brief I filed on behalf of Concerned Women for America and the Charlotte Lozier Institute in this case.

In the three years between 1973, when Roe was decided, and 1976, when Singleton was decided, women were more likely than doctors, hospitals or clinics to file challenges to abortion-related laws. 33 federal cases were brought by women or minors alone, while only 22 cases were brought by providers. Since 1976, there have been 16 years in which there were no cases filed by women alone, and 13 years in which women brought only one.

Since the Singleton opinion was handed down in 1976, year after year providers have filed more lawsuits challenging abortion-related laws than have the women purportedly affected by those laws. From 1973 to 2019, there were an annual average of 2.1 lawsuits filed by women alone; providers averaged 9.1 cases per year; and women and providers joined in the same lawsuit in 1.6 cases per year.

Women are most likely to file lawsuits seeking public funding for abortion or challenging laws that require parental, spousal or judicial consent, while there are almost no cases filed by women alone challenging conscience rights, informed-consent requirements, fetal-disposition laws and provider regulations generally. This pattern suggests that women either generally support, or at least do not oppose, laws like the admitting-privileges requirement before the court in June Medical Services. More generally, women rarely challenge laws providing them with more information, safer, cleaner facilities and providers who are more ethical and competent. These challenges to health and safety laws appear to be the very type of cases in which traditional standing requirements work well – cases in which, as the court held in Singleton, the “holders of [the rights at stake] either do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not.”

As noted by all nine justices in Singleton, the ability of women to proceed using pseudonyms is another way of removing any obstacle or hindrance to the prosecution by women of their own interests. While the Federal Rules of Civil Procedure require all civil actions be prosecuted in the name of the real party in interest, courts routinely grant women the ability to proceed anonymously and use other procedural protections for sensitive information. This is true notwithstanding that requiring the names of the parties advances the ability of the public to understand and assess the effectiveness of the court system, discourages the filing of frivolous lawsuits and unsupportable claims or assertions, and encourages truthfulness and candor by the parties.

Unlike authorizing abortion providers to assert the interests of patients through third-party standing, use of these procedural protections ensures that the interests of women, and not the commercial or ideological interests of abortion providers, are the basis of any claim. This approach also guarantees that women’s interests are asserted at the time and in the manner that women wish to assert them, and with women’s input into the remedies crafted by the courts when relief is warranted. All of this supports Louisiana’s argument that third-party-standing rules have been routinely abused for the past 40-plus years, and that such standing should only be granted to abortion providers after a searching case-by-case review of the facts.

Powell was correct when he predicted that the failure of courts to scrutinize abortion providers’ representation of their patients would result in a precedent “difficult to cabin,” one that invited “litigation by those who perhaps have the least legitimate ground for seeking to assert the rights of third parties.” Cases over the past 40-plus years establish that women are willing and able to challenge those laws and regulations that they believe present substantial obstacles to their access to abortion. In contrast, abortion providers have persistently claimed to represent the interests of women while seeking to overturn sensible and necessary public health and safety measures.

Louisiana was right to challenge this abuse of third-party-standing doctrine. The court would be right to limit application of the doctrine to cases in which the interests of providers and women do not conflict, and in which such litigation by the patients themselves, as Powell wrote in Singleton, “is in all practicable terms impossible.”