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The Supreme Court's Shameful Dereliction of Duty

The U.S. Supreme Court building, Wikimedia Commons, Daderot.

Last October, the U.S. Supreme Court announced it would consider the first abortion case since the confirmation of Justice Brett Kavanaugh, the Court’s fifth pro-life member. Pro-life Americans hoped that the Court would finally reverse its disastrous ruling in Roe v. Wade (1973), the case that struck down state laws restricting the killing of unborn babies in the womb. Yet on Monday, the Court not only refused to reverse Roe but it also dodged the central question in the case — the reason the Court granted certiorari in the first place.

According to Justice Clarence Thomas’s dissent, the Supreme Court “granted Louisiana’s petition specifically to address whether ‘abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients.'”

At first, this may seem an arcane question for legal scholastics — can’t the Court just strike down Roe v. Wade or uphold it? Why does it matter whether abortion clinics can claim to represent their patients — women — before the Court?

Yet this question cuts right to the heart of what most abortion cases — especially June Medical Services — are about. The basic logic of June Medical Services runs like this: The State of Louisiana passed a law that requires abortion clinics to maintain certain basic health and safety standards for the women they serve. These standards will hurt abortion clinics’ ability to remain in business. Therefore, the law harms women by depriving them of access to abortion.

Yet the women seeking abortion are not arguing before the Supreme Court — the abortion clinics are. The clinics claim to speak on behalf of the women, but these are the very women the law is intended to protect.

“It’s wrong for abortion providers to come into court and pretend they represent the women’s interests,” Denise Harle, legal counsel at Alliance Defending Freedom (ADF), told PJ Media in January. “This Louisiana law protects women’s health and safety. The abortion doctors want a special exemption so they don’t have to abide by these standards, when in fact they’re just looking out for the interests of the abortion industry.”

“This is the fox guarding the henhouse,” Harle insisted.

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“The abortion doctors are challenging requirements like sterilizing their instruments,” Harle noted, referencing one of the provisions in the Louisiana law. “We’re never going to hear a woman say, ‘I don’t want doctors to sterilize these instruments before they start working on me.'”

In most abortion cases, abortion clinics like Planned Parenthood are the plaintiff, the ADF lawyer explained. She paraphrased their arguments: “We don’t want to perform ultrasounds, we don’t want to provide a woman 24 hours to consider this serious procedure. We don’t want women to see their child, hear their heartbeat, learn about what the abortion actually does.”

If the Supreme Court were to finally address the issue head-on and rule that abortion clinics could not claim to represent the women whose safety they want to undermine, that would have huge ramifications for decades to come. It would make the entire process of litigating abortion cases fairer and more representative of the actual interests of women, rather than the interests of abortion clinics claiming to represent them.

For this reason, Thomas argues that “abortionists’ standing to assert the putative rights of their clients has not been settled by our precedents. It is true that this Court has reflexively allowed abortionists and abortion clinics to vicariously assert a woman’s putative right to abortion. But oftentimes the Court has not so much as addressed standing in those cases.”

The justice notes that under America’s common law tradition, “when a plaintiff sought to vindicate a private right, ‘courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded.'” The supposed “right to abortion” derived from the “penumbras” and “emanations” from the Fourteenth Amendment — but entirely anathema to the Americans who supported that amendment — is a private right, not a public right.

“The purported substantive due process right to abort an unborn child is no exception — it is an individual right that is inherently personal. After all, the Court ‘creat[ed the] right’ based on the notion that abortion ‘involv[es] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,'” Thomas noted. “Because this right belongs to the woman making that choice, not to those who provide abortions, plaintiffs cannot establish a personal legal injury by asserting that this right has been violated.”

“The only injury asserted by plaintiffs in this suit is the possibility of facing criminal sanctions if the abortionists conduct abortions without admitting privileges in violation of the law,” Thomas notes. “But plaintiffs do not claim any right to provide abortions, nor do they contest that the State has authority to regulate such procedures. They have therefore demonstrated only real-world damages (or more accurately, the possibility of real-world damages), but no legal injury, or ‘invasion of a legally protected interest,’ that belongs to them.”

In other words, abortion clinics could have the standing to sue Louisiana for allegedly overly strict rules designed to drive them out of business, but instead, they sued the state on behalf of the women Louisiana’s law aims to protect, claiming that Louisiana was violating these women’s “right to abortion.” The case gave the Supreme Court the opportunity to tackle this tortured logic of the “fox guarding the henhouse,” but the Court dropped the issue.

“Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health,” Justice Samuel Alito explains. “Neither waiver nor stare decisis can justify this holding, which clashes with our general rule on third-party standing. And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.”

“Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion,” Alito writes.

Rather than examining this important question, the Court simply ruled that Louisiana had already conceded the standing issue in previous litigation — an idea Alito dismisses as “a misreading of the record.”

In June Medical Services, the Supreme Court had the chance to clarify its legal doctrine on third-party standing in abortion cases, but it demurred. In fact, this refusal to address the central issue in the case represents a shameful dereliction of duty. June Medical Services only kicked the can down the road on this important issue and the bigger issue of Roe v. Wade in general.

Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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