Symposium: As states seek to protect women, the court with June Medical Services has multiple ways to end abortion litigation free-for-all

Thomas M. Fisher is Solicitor General of the state of Indiana, which co-authored an amicus brief on behalf of the respondent in June Medical Services v. Gee.

In June Medical Services v. Gee, the Supreme Court will likely clarify third-party-standing rules and potentially address the chaos of abortion-rights doctrine wrought by its 2016 decision in Whole Woman’s Health v. Hellerstedt. Whether or not the court confronts either or both issues, chances are that abortion-rights cases will look very different very soon.

The ability of abortion practitioners to assert the 14th Amendment rights of hypothetical future patients has been at the core of abortion providers’ litigation strategy for several decades. Formerly, as in Roe v. Wade and Doe v. Bolton (among many other cases), women affected by abortion restrictions would bring their own constitutional challenges using pseudonyms. In Singleton v. Wulff, however, a plurality of the court in 1976 permitted an abortion practitioner to assert the rights of hypothetical future patients to state funding of nontherapeutic abortions. In so doing, the court, intentionally or not, sounded a starter pistol for third-party-rights abortion cases. Today, few challenges to abortion regulations are brought by individual women asserting their own constitutional rights.

That model is overdue for serious scrutiny, particularly in cases (such as this one) challenging state regulations protecting the health and safety of women seeking abortion. In Singleton itself, the court recognized that respect for the individual agency of the rights holder—who may not wish others to invoke her rights—should restrain use of third-party standing. The court overcame that restraint in Singleton, but there, at least, the interests of practitioners and hypothetical future abortion patients were unified by the prospect of state funding for abortions. With health and safety regulations (in June Medical Services, hospital admitting privileges), however, such unity is lacking. Although such regulations might burden abortion providers, they stand to benefit abortion patients, with better continuity of care, more informed consent, cleaner facilities, etc.

Whether abortion practitioners share unified interests with hypothetical future patients is a particularly critical question given numerous recent examples of abortion-provider malfeasance. Nearly everyone is familiar with the atrocities of Kermit Gosnell, but his depredations are far from unique. More recently, for example, the saga of Ulrich Klopfer has come to light. Klopfer was an Indiana abortion provider whose medical license was suspended for failing to report the rape of young girls who came into his care. When Klopfer died last September, his family and investigators found thousands of preserved fetal remains in plastic bags in the family garage. Further investigation also revealed that Klopfer had not properly disposed of patient records upon closing his practice; he instead abandoned the sensitive documents amid filthy conditions at his former abortion facilities. Patient interests plainly were not the bedrock of Klopfer’s medical practice. Yet Klopfer himself once challenged Indiana abortion laws in court by invoking the rights of his patients.

The lesson is that, when they operate free of regulatory safeguards, abortion practitioners can—and sometimes do—harm women. Courts should therefore insist on the unity of interests required by Singleton, a unity that simply does not exist in challenges to health and safety regulations.

It is important to stress that, should the court curtail the use of third-party standing in abortion-regulation cases, both practitioners and women affected by health and safety laws could still raise constitutional challenges to those laws. Practitioners could bring lawsuits asserting any of their own rights, and indeed the June Medical Services plaintiffs did so but did not pursue the claim. And individual women could, of course, bring their own “undue burden” claims, which would have several advantages over third-party claims by practitioners, chief among them the opportunity to raise challenges asserting that a law is unconstitutional as applied to their particular circumstances.

Apart from the third-party-standing issue, the court desperately needs to address how to implement the undue burden test, because Whole Woman’s Health has been wreaking havoc with abortion-rights doctrine. Planned Parenthood v. Casey defined an “undue burden” as “[having] the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” for a “large fraction of the cases in which [it] is relevant.” Such a vague test resists uniform judicial enforcement, and even before Whole Woman’s Health, courts disagreed about the evidence necessary to prove a “substantial obstacle” and the relevant universe for the “large fraction” test. But Whole Woman’s Health made matters even worse when the court instructed lower courts to “consider[] the evidence” and “weigh[] the … benefits against the burdens.”

The result has been a judicial free-for-all. In the wake of Whole Woman’s Health, abortion practitioners have challenged entire slates of state abortion regulations—even laws the Supreme Court itself has previously upheld—on the theory that district courts must now conduct a simple cost-benefit balancing of all abortion regulations without affording states any deference for policy judgments. In some cases, practitioners argue that Whole Woman’s Health requires district courts to weigh the cumulative burdens of all abortion regulations to determine whether some must be declared unconstitutional. Consequently, states are spending great sums on expert witnesses to defend informed-consent, waiting-period and other laws the court has long upheld. And some federal courts now deem it appropriate to enjoin new abortion regulations before their effects can possibly be known.

The chaos came to a head recently when the U.S. Court of Appeals for the 7th Circuit invalidated, before any enforcement, an Indiana statute requiring parental notice of a minor child’s abortion. The en banc court denied review 6-5, but Judge Frank Easterbrook, joined by Judge Diane Sykes, made clear in a concurring opinion the extent to which Whole Woman’s Health leaves even the most distinguished federal judges at their wits’ end. Easterbrook pleaded for Supreme Court guidance regarding both the meaning of the undue burden standard and the method for assessing preenforcement challenges to a law as a whole, which, he noted, the court could address in June Medical Services. As to the undue burden standard generally, Easterbrook observed that “a grant of rehearing en banc in this case would be unproductive” because “a court of appeals cannot decide whether requiring a mature minor to notify her parents of an impending abortion … is an ‘undue burden’ on abortion.” According to Easterbrook, “[h]ow much burden is ‘undue’ is a matter of judgment, which depends on what the burden would be (something the injunction prevents us from knowing) and whether that burden is excessive (a matter of weighing costs against benefits, which one judge is apt to do differently from another, and which judges as a group are apt to do differently from state legislators).” Consequently, “[o]nly the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute.”

Conceding the inability to apply Supreme Court doctrine is an astounding allowance by a federal circuit judge. Lest there be any doubt about Easterbrook’s point, he confessed that “[t]he quality of our work cannot be improved by having eight more circuit judges try the same exercise.” “It is better,” he said, “to send this dispute on its way to the only institution that can give an authoritative answer.”

And so Indiana has filed a cert petition in that case. But the court can address at least some of these problems in June Medical Services. In our amicus brief for 20 states, Arkansas and Indiana urge the court to do so by adopting a number of clarifying standards: (1) an abortion regulation imposes an undue burden only if its burdens substantially outweigh its benefits; (2) only burdens that directly cause women to forgo or materially postpone an abortion are constitutionally cognizable; (3) the large-fraction test requires lower courts to find an undue burden on practically all affected women; and (4) new abortion regulations should generally be permitted to go into effect for a meaningful period before they can be declared invalid.

As Arkansas and Indiana put it, freely authorizing abortion practitioners to bring preenforcement facial challenges to health and safety regulations gives practitioners license to seek constitutional protection for their own business models. Because practitioners cannot, in advance of enforcement, present meaningful data on a law’s actual aggregate impact on abortion access, they instead resort to evidence that compliance costs will interfere with current practices. Providers’ current business models thus become proxies for women’s rights. The practical effect is to constitutionalize providers’ current business models and negate the need to take account of how both women and the market will react to a new law.

In sum, current undue burden doctrine is both incoherent and misdirected, particularly with respect to laws designed to protect the health and safety of women. Lower courts cannot apply it, and women cannot rely on practitioners to use it for any purpose other than to protect their own business practices. Whether by narrowing third-party standing or clarifying the undue burden standard, the court in June Medical Services may better align the rights and interests of women with litigation claims brought on their behalf.