June Medical Services LLC v. Gee

WHETHER JUNE MEDICAL HAS STANDING TO ASSERT THE RIGHTS OF PATIENTS SEEKING ABORTIONS

June Medical argues that the Court should not consider Gee’s claim that June Medical lacks standing to challenge the Louisiana Act’s constitutionality on behalf of its patients, Louisiana women seeking abortions. Reply Brief for Petitioner, June Medical Services LLC et. al at 27. In furtherance of this argument, June Medical contends that Gee waived any standing objections at the outset of this case by urging the courts below to decide the case on the merits, and that Gee did not object to June Medical’s standing until the case reached the Supreme Court. Id. Additionally, June Medical claims that the lower courts did not pass upon the question of standing, and even if the Fifth Circuit did, that should not affect Gee’s affirmative waiver of any standing objection. Id. at 38. June Medical asserts that Supreme Court precedent clearly establishes that parties can waive objections to third-party standing, the type of standing at issue here, and maintains that no justifiable reason exists to depart from that precedent in this case. Id. at 28–29. As support, June Medical distinguishes between jurisdictional claims that limit a court’s power to hear a case and thus cannot be waived, and non-jurisdictional rules that do not limit a court’s adjudicatory power, and thus can be waived; June Medical asserts that third-party standing falls into the latter category. Id. at 29–31. Additionally, June Medical cites a long line of precedent to combat Gee’s argument that third-party standing should comport with Article III’s standing requirements, and argues that even if the Court accepts Gee’s argument, the harm June Medical alleges satisfies these requirements. Id. at 31–34. Finally, June Medical contends that the Court should reject Gee’s argument to forgive the standing waiver because that issue is beyond the question presented to the Court. Id. at 39.

June Medical also argues that even if the Court reaches the standing question, June Medical has the standing to assert the rights of its patients. Id. at 43. June Medical contends that litigants may raise the rights of third parties when either: (1) a restriction prevents the litigant from entering into a relationship with a third party to which the third party is legally entitled, or (2) the litigant has a “close” relationship with the third party whose right is being infringed upon and some obstacle “hinder[s]” the third party from bringing the challenge. Id. June Medical asserts that it can challenge the validity of the Louisiana Act under either of these frameworks. Id. at 44. First, June Medical believes that because the Louisiana Act restricts June Medical’s capacity to provide abortion services, which in turn violates its patient’s constitutional right to obtain an abortion, June Medical has standing to challenge that law on behalf of its patients, and, indeed, abortion providers have done so in almost all other abortion cases before the Court. Id. at 46–47. Second, June Medical asserts that the second category of standing also applies because a doctor-patient relationship qualifies as “close,” and pregnant women seeking abortions are “hinder[ed]” in challenging the Louisiana Act themselves because to avoid mootness, they must file the claim while still pregnant, and filing suit could infringe on a woman’s privacy. Id. at 50, 53–54.

In contrast, Gee argues that the Fifth Circuit erred when it determined that June Medical had third-party standing to challenge the Louisiana Act on behalf of its patients and that, therefore, the case should be dismissed. Brief for Respondent, Rebekah Gee at 26. Gee asserts that although Article III does not formally provide requirements for third-party standing, this type of standing should still be considered as a jurisdictional question that could limit a court’s power to hear a case. See id. at 26–27. Third-party standing, Gee explains, fits into Article III because third-party standing involves concerns embedded in Article III’s separation of powers and requires a particularized and traceable injury like Article III standing. Id. Thus, Gee argues that even if the Court does not wish to make third-party standing formally part of its Article III jurisdictional inquiry, parties still should not be able to waive their objections to this type of standing because restrictions on third-party standing serve the same purpose as Article III restrictions, namely limiting federal courts’ adjudicatory power. Id. at 50. Gee continues that appellate courts have just as much interest in ensuring that representatives are not infringing on a third-party’s rights as lower courts do, and, thus, parties should be able to raise standing objections at any stage of a lawsuit. Id. Finally, Gee argues that even if it failed to address standing in the lower courts, the Fifth Circuit passed on the standing question, so the Supreme Court can, and should now consider standing as a matter of discretion. Id. at 52. Moreover, Gee emphasizes that the Fifth Circuit had just determined in a different case that abortion providers had third-party standing to assert the claims of their patients, so the objection below would have been futile; Gee contends that Louisiana should not have been required to raise such an argument in order to raise it for the Supreme Court’s consideration. Id. at 52–53.

Additionally, Gee argues that regardless of whether third-party standing is jurisdictional, June Medical fails to satisfy its strenuous requirements. Id. at 31. Gee asserts that abortion providers should not categorically receive third-party standing automatically, but rather must establish third-party standing in every lawsuit, like any other type of litigant. Id. at 31, 34. Gee explains that in order to achieve third party standing, a party must prove that it has a “close” relationship to the party whose interests it is representing and that a “hindrance” prevents that other party from asserting the rights. Id. at 31. Gee claims that June Medical lacks the close relationship with its patients necessary to establish third-party standing, most prominently because of conflicts of interest, including a patient’s competing interest in safety with a clinics’ interest in reducing costs. Id. at 41–43. Clinics, Gee maintains, are business entities which cannot have close relationships with patients, and abortion providers similarly lack closeness because they typically meet with patients only once to perform the procedure with little follow-up. Id. at 47–48. Secondly, Gee claims that no evidence shows that June Medical’s patients are hindered from challenging the Louisiana Act on their own and cites a line of past cases where women seeking abortions challenged laws on their own behalf. Id. at 39–40. Additionally, Gee contends that June Medical relies on speculative hindrances to support its claim for third-party standing. Id.

IMPACT OF WHOLE WOMAN’S HEALTH v. HELLERSTEDT ON THIS CASE

June Medical argues that because the Court in WWH struck down the Texas law as unconstitutional, laws that are not materially different from the Texas law, like the Louisiana Act, should be struck down as well under the doctrine of stare decisis. Brief for Petitioner, June Medical Services LLC et al. at 21. June Medical notes that the Court struck down the Texas law in WWH for reasons applicable to Texas and other states and, thus, contends that the decision is binding on laws made in states other than Texas too. Id. at 24. Additionally, June Medical asserts that the facts of WWH and this case are not materially different, and, in fact, the Louisiana Act would have even harsher effects on women seeking abortions than the Texas law struck down in WWH. Id. at 26, 29. June Medical bases this assertion on the District Court’s detailed findings that: (1) the admitting privileges requirement would not have helped increase the safety of a woman undergoing an abortion, (2) only one abortion clinic and doctor would be available in Louisiana if the Louisiana Act were to go into effect, and (3) Louisiana is the third poorest state, making abortion more likely but less accessible to women. Id. at 29–30. The Fifth Circuit, June Medical contends, erred in not accepting the District Court’s factual findings and in making two specific factual findings of its own. Id. at 31–32, 37. First, June Medical claims that the Fifth Circuit erred in finding that the admitting privileges requirement provides credentialing and conformity benefits that boost patient safety, as the Court rejected those same benefits in WWH. Id. at 33–37. Second, June Medical maintains that the Fifth Circuit ignored the factual record from the District Court in finding that no abortion clinics would close under the Louisiana Act and that no woman would be substantially burdened by the Act. Id. at 37.

June Medical additionally argues that even if the Louisiana Act creates fewer burdens than the Texas law did in WWH, the Court should still find the Louisiana Act unconstitutional because any negligible benefits of admitting privileges do not outweigh the undue burdens the Act imposes on women seeking abortions. Brief for Petitioner at 45. June Medical contends that because admitting privileges offer no substantial health or safety benefits, the Louisiana Act necessarily fails the undue burden balancing test, which weighs a woman’s liberty interests against a state’s regulatory interests to determine if the benefits of the state’s abortion restrictions outweigh the burdens they place on women. Id. at 45­–47. June Medical further asserts that even if the Fifth Circuit is correct that admitting privileges provide a de minimis credentialing or regulatory consistency benefit, that minimal benefit does not outweigh the substantial burdens the Louisiana Act places on abortion access. Id. at 48­–50.

In response, Gee argues that June Medical misinterprets WWH when it claims that any materially similar law to the Texas law must also be struck down. Brief for Respondent at 53. Instead, Gee contends that the WWH decision relied on a unique, fact-based analysis and that the Court’s decision to strike down the Texas law depended on circumstances specific to Texas. Id. at 53, 56. Precedent, Gee emphasizes, thus establishes that the Court must perform a similar fact-based analysis here. Id. at 54. Gee asserts that the Fifth Circuit correctly reviewed the District Court record and correctly determined that because Louisiana women could still receive an abortion under the Louisiana Act, the admitting privileges requirement did not impose a substantial burden on women’s abortion access. Id. at 72–73. Gee cites examples from the District Court record of abortion doctors in Louisiana either already having admitting privileges or obtaining them after the passage of the Louisiana Act as proof that women in Louisiana will still have access to abortions after the admitting privileges requirement goes into effect. Id. at 73–75. Gee additionally points to the failure of several abortion doctors to make good faith efforts to receive admitting privileges as evidence that the Fifth Circuit did not err in concluding that the doctors’ failures and not the Louisiana Act would reduce the number of abortion providers in the state. Id. at 75–76. Finally, Gee argues that the Fifth Circuit correctly concluded that admitting privileges improve the credentialing of abortion doctors because hospitals perform more credentialing investigation than do abortion clinics. Id. at 81. In fact, the Louisiana Act, Gee notes, offers two additional benefits: improving safety by requiring that abortion clinics have the capacity to transfer patients to nearby hospitals and preserving conformity of abortion regulations under Louisiana laws. Id. at 85–88.

Gee also asserts that post-WWH challengers to abortion regulations must still prove that a substantial obstacle to obtaining an abortion exists before the regulation can be struck down, not merely that the benefits of the law do not outweigh the burdens, as June Medical suggests. Id. at 60–61. Gee contends that abortion regulations are health and safety regulations, and because states hold the power over health and safety within their own state, the Court must defer to the state legislature’s determinations here. Id. at 67. Therefore, Gee believes that as long as abortion regulations do not impose a substantial obstacle to accessing an abortion, the Court can uphold these regulations if they are rational, and, Gee asserts that WWH does not say otherwise. Id. at 68–69. Finally, Gee argues that the Court should make the substantial obstacle standard less subjective by defining it as a near impossibility of obtaining an abortion. Id. at 71. Because Louisiana women could still access abortion under this law, Gee argues that the Court must uphold the Louisiana Act. Id. at 72.