The hidden rule that could make it impossible to fight abortion bans

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ILLUSTRATION BY CATHRYN VIRGINIA

An abortion case headed to the Supreme Court next year contains a measure that, if it succeeds, could pull the linchpin out of entire legal standing of abortion and send the industry crashing in pieces to the ground.

June Medical Services v. Gee, the Louisiana abortion case the Supreme Court will rule upon in 2020, would target the concept of third-party standing. Third-party standing is when organizations like Planned Parenthood, the Center for Reproductive Rights or the American Civil Liberties Union argue against state abortion restrictions (like those being instituted in Alabama) so that their pregnant clients don’t have to.

Lawyers have difficulty finding pregnant clients willing to go through years of litigation and proceedings, especially since the court proceedings will continue long after the pregnancy and and desire for abortion are no longer an issue.

When the Supreme Court agreed to hear Louisiana’s law requiring abortion providers to have hospital-admitting privileges — identical to a Texas law the court struck down in a landmark 2016 decision — they also agreed to rule on a cross-petition from the state that argues doctors and clinics can’t speak for patients: i.e. they do not have third-party standing.

On Tuesday the ACLU got a judge to block the near-total abortion ban that Alabama’s governor signed in May and was set to go into effect in this month. It’s the seventh abortion ban the ACLU has gotten struck down recently, meaning the group has now blocked nearly every early abortion ban passed in 2019. The plaintiffs in these cases are clinics, like Planned Parenthood, or abortion providers, whom the ACLU is representing in the Alabama suit.

The court’s ruling on admitting privileges could badly undermine Roe v. Wade and lead to clinic shutdowns across the country. A ruling that disallowed third-party standing could be even more damaging to the future of abortion rights, said T.J. Tu, one of the lead attorneys for the Center for Reproductive Rights who’s arguing the Louisiana case before the Supreme Court.

“If providers don’t have standing, it’s a looming question of whether blatantly unconstitutional criminal statutes would even get into court, and certainly whether we’d get into court in time to prevent such a flagrantly unconstitutional law [like Alabama’s] from going into effect,” Tu said. “These sorts of cases for all practical purposes will go away because there will be no one left to bring them.”


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