In 2016, the court held that a law like this delivered no benefit — not just because it didn’t guarantee continuity of care but also because abortion is safe. Even if the effects of the law are different, Roberts asked, wouldn’t its benefits (or lack thereof) be the same?
And while the arguments created a great degree of uncertainty, there is also another issue at play, one receiving far less attention: Who has standing to challenge the constitutionality of abortion laws? The outcome of this narrow, seemingly technical question may actually be the one that helps determine the fate of abortion rights in America.
Standing doctrine means that not just anyone can bring a lawsuit. Generally, the justices require that someone can only bring a case protecting their own rights. But in the realm of abortion rights, the court has allowed abortion providers and clinics to sue on their patients’ behalf. The justices reasoned that because patients need a doctor to have a safe abortion, the interests of doctors and pregnant people are closely aligned. And the court identified practical barriers that might stop patients from bringing lawsuits of their own.
But now Louisiana and antiabortion allies in amicus briefs argue that these decades of jurisprudence have been a mistake. As the state sees it, abortion providers should not have standing, because they don’t care about their patients.
Antiabortion claims about standing are neither new nor cut off from a broader strategy. In the 1980s, abortion foes experimented with standing arguments as part of a plan to make abortions harder to get. They argued that if only patients could sue, it would be harder for anyone to challenge the constitutionality of a law.
They first unfurled this tactic when Operation Rescue launched clinic blockades in the late 1980s, and feminists asserted that the protests violated federal law. Abortion foes responded that clinics and providers had standing only to challenge laws directly restricting abortion. The same argument cropped up when states regulated the disposal of fetal remains.
Courts didn’t buy this claim, but standing arguments came back with a vengeance thanks to changes in the Supreme Court’s membership. In the late 1980s and early 1990s, after Republican presidents Richard Nixon, Gerald Ford, Ronald Reagan and George H.W. Bush had transformed the Supreme Court, many expected the Court to reverse Roe. In 1992, however, Planned Parenthood v. Casey established a new rule, the undue-burden test, that made it easier for states to restrict abortion but staunchly refused to dismantle abortion rights altogether.
Casey emphasized that women relied on abortion access to lead more equal lives. But at the same time, in upholding an informed-consent law, the court painted a darker picture of abortion providers. Casey suggested some abortion providers failed to tell patients what they needed to know before an abortion, leading to regret and trauma for those who did not understand what it meant to end a pregnancy.
Abortion foes used this conclusion to fashion a new strategy. Antiabortion activists painted abortion providers as dishonest and dangerous — in an effort to convince the Court and the public that abortion harmed women.
At first, abortion foes simply copied the informed-consent law upheld in Casey. But over time, in making the case that abortion hurt women, they began introducing more and more controversial laws. New informed-consent laws required patients to hear questionable or contested statements linking abortion to infertility, breast cancer or psychological trauma. Louisiana passed a medical-malpractice law facilitating lawsuits against abortion providers. And anytime a court considered a constitutional suit about one of these laws, antiabortion advocates questioned whether abortion doctors had standing to challenge them in the first place.
The law before the Supreme Court on Wednesday figures centrally in this campaign to establish that abortion hurts women and to keep abortion clinics from suing over restrictions. In 2013, Americans United for Life, one of the major players in the antiabortion movement, promoted a package of model laws claiming to protect women. One bill in the bunch required doctors to have admitting privileges at a hospital within 30 miles of their clinic.
In 2016, the Supreme Court invalidated a Texas version of the law (along with a related provision requiring clinics to comply with the regulations covering ambulatory surgical centers). Whole Woman’s Health v. Hellerstedt described the admitting-privileges law as both pointless and damaging. The court suggested that the law would force the closure of most abortion clinics in the state, making abortion inaccessible for patients or forcing them to endure a lower quality of care. And Whole Woman’s Health suggested that because abortion was safe, admitting privileges served no purpose.
Louisiana is asking the court to uphold the exact same law. The state suggests that Texas and Louisiana are simply different: There is not enough proof that Louisiana will shutter its clinics. At least implicitly, the state has also asked the court to gut a decision that is just four years old. And this seemed to be provoking Roberts’s skepticism. In reality, Louisiana is simply making the bet that Justice Brett M. Kavanaugh will be more amenable to its arguments than his predecessor, Justice Anthony M. Kennedy, one of the authors of the Casey decision — but Roberts may be the wild card.
The court will also consider Louisiana’s standing argument, though it sent much less clear signals on the topic during oral arguments. For abortion rights supporters, it might not seem so bad if the court accepted Louisiana’s invitation on standing. After all, with a conservative majority in place, any ruling on the merits is already likely to be a step down the road to overturning Roe. But standing arguments themselves have always been a major part of the strategy to chip away at abortion rights.
Accepting Louisiana’s standing claim might make it much harder for anyone to get an abortion case to the Supreme Court. But its impact would go beyond that, blessing the antiabortion claim that abortion providers don’t have women’s best interests at heart. That would probably greenlight an ever-growing list of restrictions claiming to protect women. States are considering laws that would ban the most common second-trimester procedure, dilation and evacuation, insisting that doing so would protect patients by preventing abortions later in pregnancy. This move would have a major impact on patients who need surgical abortions at any point in pregnancy, including early on, as well as those who discovered medical complications after the first trimester.
Legislators have proposed later-trimester bans on abortion and statutes requiring patients to hear that abortion can be reversed — a statement rejected by the American Medical Association. Asking the court to reject standing for abortion providers is just a first step. If the court thinks abortion providers don’t prioritize their patients’ welfare, how hard will it be to convince a majority that abortion itself is damaging?
Most Americans following June Medical want to know what will happen to Roe. The court probably won’t undo abortion rights altogether this time around. But the case reminds us that the bans and heartbeat laws that made waves last year are only part of a much bigger picture. It seems likely that the court as currently constituted will undo Roe at some point. If President Trump wins reelection, the end for abortion rights will seem all the more certain. But when it comes, the demise of Roe may involve arguments about women, not fetal life. Why recognize a right to choose, Louisiana asks, if women are the ones who get hurt?