In June Medical v. Russo, Louisiana is arguing that abortion providers don’t have the best interests of their patients in mind and therefore shouldn’t have standing to bring lawsuits on their behalf. That’s simply not true.
The legal context for this argument is not the stuff of grand principle most people associate with abortion litigation, but it’s crucial. Most abortion cases come to federal court with an abortion provider — usually a doctor or a clinic — suing on behalf of his or her patients. That means the provider, the actual plaintiff in the case, is raising the patients’ constitutional rights.
In most cases, plaintiffs cannot claim to be litigating on behalf of others. However, long-standing Supreme Court precedent allows “third party standing” under limited circumstances. In particular, the court said in 1976, abortion providers are an exception because of their close relationship with their patients and because privacy concerns make it hard for patients to bring their own lawsuits.
This precedent has been an essential, though mostly unknown, aspect of court protection for abortion rights. Since Roe v. Wade, almost every abortion case before the Supreme Court has been brought by a clinic or medical-care professional.
If this weren’t possible, the onus would fall on the patient to bring the case. Certainly, some patients might do so, but the overwhelming majority would not. They would be dissuaded because of privacy concerns or the risk of reprisal and harassment after going public. Moreover, a rule requiring patients to bring the lawsuit would mean that someone who is operating in a short time frame — while pregnant seeking an abortion — would have to sustain interest throughout a lengthy and costly litigation process. Expecting abortion patients, about three-quarters of whom are classified as poor or low-income, to have the bandwidth in their lives to be long-term advocates for the cause is unrealistic.
But Louisiana is trying to roll back the decades-old precedent. The crux of its argument about whether abortion providers having standing to sue, in addition to its contention that the providers must have hospital admitting privileges, is that abortion providers can’t adequately represent their patients because they are solely out to make money and have no concern for their patients’ well-being. All providers really care about is, to quote from Louisiana’s brief before the Supreme Court, “providing as many abortions as possible” while being completely “free from government oversight.” In other words, getting the government out of the way so providers can persuade women to have abortions they don’t really want and then rake in the big bucks.
Louisiana’s argument is based on a nasty stereotype about abortion providers that is not supported by the evidence. Rather, many studies, including extensive research we did for our book about the struggles women face in getting an abortion, show that abortion providers are deeply concerned with making sure their patients are certain about the decision to have an abortion.
Providers consistently told us the various strategies they use to ensure patients’ certainty, such as sending wavering patients home. A Southern provider told us that when she sees a patient who is ambivalent, “the first thing I say to them is, ‘You can leave and come back, but there’s no do-over for this. If we do this procedure, I want to know that when you wake up tomorrow morning, you are going to be sound with what happened today.’” As an example, this provider relayed the story of one patient she counseled who heeded this warning and went home without having an abortion but came back two days later for the procedure. She was grateful the provider gave her the time to be confident in her decision.
A Midwestern provider told us about a mother who brought her college-aged daughter to the clinic. The mom wanted the provider to talk her daughter into having an abortion, but the provider refused. “We don’t talk anybody into having an abortion,” the provider explained. After counseling, the daughter decided to continue her pregnancy to term. Both the mom and daughter later told the abortion provider they were grateful to have had a medical care professional who listened to her patient.
Abortion providers take this care because the last thing they want to do is perform an abortion on a woman who doesn’t want one. Providers are fortunate to work in a field where patients have a high level of certainty, higher than they have for comparable medical procedures, but still are careful because of the rare patient who is undecided about what she wants. As one provider from a Western state explained about why she takes such care, “I’ve had nightmares about performing an abortion on someone who didn’t want one.”
But ensuring patient certainty is not the only way providers look out for the best interests of their patients. They also help arrange travel, refer them for other forms of medical care when needed, calm them about both distressing encounters with protesters and inaccurate and upsetting state-mandated information, and provide care with an excellent safety record. Plus, in undertaking this work, providers risk being targeted by extremists.
Louisiana couldn’t have missed the mark more in its argument before the Supreme Court. Abortion providers have a close relationship with their patients, protecting their privacy and looking out for their best interests every step of the way. If the court denies them the ability to sue on behalf of their patients based on a contrary assumption, it would be imposing a severe new obstacle for abortion access.