What Alito, Alone, Found 'Amazing' at Abortion Clinic Arguments
If Justice Samuel Alito Jr. were interested in revisiting third-party standing in some context, his colleagues did not pick up the thread at arguments in the case June Medical Services v. Russo.
March 04, 2020 at 03:14 PM
5 minute read
During arguments on Louisiana's abortion law Wednesday, Justice Samuel Alito Jr. appeared ready to reexamine a decades-long line of U.S. Supreme Court cases allowing individuals to raise the rights of others in challenges to allegedly unconstitutional law. But in all such challenges or just abortion cases?
Alito questioned Julie Rikelman of the Center for Reproductive Rights, counsel to the Louisiana clinic June Medical Services and its physicians, about one of the most potentially significant issues in the case: whether the clinic and physicians have so-called third-party standing to challenge the state's hospital admitting privileges requirement. A ruling that they don't have standing to sue could reduce or eliminate challenges to state abortion restrictions, according to abortion rights advocates.
"Would you agree with the general proposition that a party should not be able to sue ostensibly to protect the right of other people, if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend?" Alito asked Rikelman at one point during the hour-long arguments in the case June Medical Services v. Russo.
Rikelman replied: "No, your honor, not if that party is directly regulated by the law in question. And, in fact, this court has allowed third-party standing in cases where the state argued that the third parties were protected by the law and in a sense protected from the plaintiffs."
"Really? That's amazing," said Alito, asserting that Rikelman thinks a plaintiff has standing to sue on behalf of individuals with whom the plaintiff has directly contrary interests.
Rikelman responded: "If the plaintiff is directly regulated by the law. This court has allowed an attorney to bring third-party claims against a statute that capped attorneys' fees in favor of clients."
"Well, that's amazing," Alito said again, before offering another hypothetical.
Justice Ruth Bader Ginsburg asked Rikelman if there were anything like the conflict mentioned by Alito in the Louisiana case. Rikelman said no, "not even a plausible conflict."
Rikelman, citing the trial record, also argued Louisiana had "strategically and deliberately" waived any standing issue during the earlier litigation in the lower courts.
Alito sounded skeptical, saying, "Well, I think that's highly debatable that they waived it." Alito added: "I think it's quite a stretch of the record for you to say there was an affirmative waiver."
If Alito were interested in revisiting third-party standing in some context, his colleagues did not pick up the thread. Still, Alito later might find Justice Clarence Thomas, who did not ask questions at Wednesday's hearing, sympathetic to his concerns. Thomas' dissent in the 2016 decision in Whole Woman's Health v. Hellerstedt—a ruling that struck down Texas' hospital admitting law, which is nearly identical to the Louisiana regulations—questioned a clinic's right to sue on behalf of its patients.
"Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others," Thomas wrote in the Texas case. "But the court employs a different approach to rights that it favors. So in this case and many others, the court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions."
Alito did find support from the Trump administration's Justice Department.
Deputy Solicitor General Jeffrey Wall, answering a question from Justice Sonia Sotomayor, suggested the interests of abortion physicians and patients "are not necessarily aligned. One is the interest of for-profit providers and not being regulated in particular ways. The other is the interest of women in their own health and safety."
Ginsburg at one point remarked that Louisiana never raised the issue of standing until the state filed its cross-petition for review in the Supreme Court. Justice Stephen Breyer said he counted at least eight abortion cases in which the Supreme Court allowed doctors expressly or silently to sue on behalf of women.
"So if we didn't in this case, it would require either directly or indirectly overruling eight cases of this court?" Breyer asked. Rikelman answered, "That's correct."
Later in a question to Wall, Breyer asked, "You really want us to go back and reexamine this? Let's go back and reexamine Marbury v. Madison. Why depart from what was pretty clear precedent? You want to go back 40 years?"
Wall, the solicitor office's second-in-charge, said the court in none of those cases considered and signed off on a potential or actual conflict of interest between a plaintiff and the person on whose behalf they are suing.
A ruling is expected by June in the case.
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