Madam president, I come to the floor today wanting to discuss a case called June Medical Services v. Russo. This was a decision announced by the Supreme Court yesterday. This is a decision that hasn’t gotten enough attention as many cases that have come before the Supreme Court. It is, nonetheless, a significant decision. It is a decision that I believe is deeply flawed and betrays many of the legal and constitutional principles that the Supreme Court reports to apply and is supposed to be bound by as it decides cases and controversies properly brought before its jurisdiction.
The June Medical Center v. Russo case involved the constitutionality of a statute enacted by the Louisiana legislature known as Act 620. The legislation in question required any doctor performing abortions within Louisiana to hold active admitting privileges at a hospital within 30 miles of the location of the abortion clinic in question. The act then defined what it meant to have active admitting privileges. It did so in terms of a reference to the ability to admit a patient and provide diagnostic and surgical services to such patient.
It is understandable why the state of Louisiana or any state might want to consider adopting such legislation. I want to be very clear at the outset; this case did not involve any legislation prohibiting abortion. In fact, there is nothing about Act 620 that made abortions illegal in Louisiana, nor is there anything about Act 620 that would have made it practically impossible or really difficult for people to obtain an abortion. That’s not what it did. It simply acknowledged the fact that abortion is a type of surgical procedure that is sometimes fraught with medical peril and can sometimes result in people getting hurt and people having to go to the hospital. It might be helpful in those circumstances to have the person who performed the procedure have admitting privileges at a hospital within in 30 miles of the abortion clinic.
The constitutionality of the law was challenged in a lawsuit brought by 5 abortion clinics and 4 abortion providers in Louisiana. Now, they challenged the law in federal district court and they did so before the act even took effect, arguing it was unconstitutional because it imposed an undue burden on their patients’ right to obtain abortions. The abortion clinics, medical providers, and the doctors that challenged this law were quite significantly not arguing that these were their own constitutional rights being impaired. They were instead arguing that they had standing, that they had the ability to stand in the shoes of those who are among their patients—those whom they serve.
I would like to talk about three critical features of this decision and why I think the decision was wrong in all three respects. First, let’s talk about this standing issue that I eluded to just a moment ago. The concept of standing is rooted in Article 3 of the Constitution. Article 3 is the part of the Constitution that established the judicial branch, sets up the Supreme Court, and such inferior courts as Congress might choose to create. Significantly, neither Article 3 nor any other provision of the Constitution gives the courts the authority to make law, to deicide policy, or – for that matter – announce what the law is, says, or should say at any moment unless, of course, there is a case or controversy before the court.
This means that a court cannot issue an advisory opinion. In our federal court system, the courts have the power to decide actual conflicts, disputes, cases or controversies between one or more parties who happen to disagree about the meaning of a particular provision of federal, statuary, or constitutional law. Without that type of case or controversy, the court lacks jurisdiction. So even though this isn’t a concept that non-lawyers employ in day to day conversation, it is something that American lawyers and judges, particularly federal judges and lawyers who practice before federal courts, are familiar with. The concept of standing acknowledges that with very few exceptions, not relevant in this context, a party may not sue on behalf of or in order to address an injury sustained by a third party. In order to have standing in federal court, you have to have an injury in fact that is concrete and particularized, that is sustained by the plaintiff, is fairly traceable to the conduct of the defendant, and that the conduct at issue is capable of being remedied by a judicial order within the court’s jurisdiction. Without those elements being present, you can’t have standing. Without standing, you can’t have a case or controversy, and the court has no jurisdiction.
It’s well established, madam president, that within the federal court system, the standing inquiry is what we call a part of the courts’ justiciability doctrine, meaning that it’s a threshold inquiry that determines jurisdiction. As a result, it can be raised at any moment by any party. It can be and sometimes will be addressed by the court acting sua sponte, meaning regardless of whether any of the parties raise it, it cannot be waived. As a result, at any stage of the litigation, whether at the trail court, the appellate court, or the Supreme Court, it can be raised by any party or any member of the judiciary sitting in that case.
It’s significant that in this 5-4 ruling, in an oddly configured plurality opinion of 4 justices: Justices Ginsberg, Breyer, Kagan, and Sotomayor, united in a single plurality opinion joined by Chief Justice Roberts in a concurring opinion. They coupled together a conclusion that it was just fine for the court to act in this circumstance, notwithstanding the fact that the doctors and the abortion clinics in this case were not even arguing that their own constitutional rights were being impaired. This is significant–stunning in fact. They are asserting constitutional rights in the alleged injuries of third parties. In other circumstances, one might imagine a scenario in which you might have someone coming before the court claiming to be the executer of somebody’s estate, or perhaps the legal guardian of a juvenile or person who had been deemed incapacitated. In those circumstances that person has standing, but the standing belongs to the person suffering the injury, it is just allowed to be asserted by the third person standing in that person’s place. That is not what we had here.
Neither in the complaint nor in any of the moving papers did any of the plaintiffs, that is the clinics and the abortion providers in question, argued that their own constitutional rights were being impaired. They instead asserted impairment of the rights of third parties not before the court of would be patients who they might have.
The lack of standing in this case is apparent, and the lack of standing was glossed over by this cobbled together combination of the four-member plurality and Chief justice Roberts. The plurality glossed over it and in part suggested that the standing issue might not have matter perhaps because it was not an argument that was not properly raised before the district court. But madam president, any first-year law student in any American law school, let alone a federal judge or supreme court justice, knows that standing isn’t waivable, it is a threshold jurisdictional question. As such, it cannot be waived—it is never waived. It is always a live, relevant question that can be raised sua sponte by the court itself.
Justice Alito in his dissent acknowledged this point and explained it well with the following words “neither waiver nor stare decisis can justify this holding, which calashes with our general rule on third-party standing. And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.”
The conflict of interest to which Justice Alito is referring, refers to the fact that you have on the one hand, a state regulating a particular actor, here abortion providers, clinics, and physicians who perform abortions. That entity, like any other entity that is otherwise going to be regulated, has an interest in being not regulated. It makes it easier, perhaps cheaper, perhaps more lucrative for those providers to be in that business if they are less regulated. It makes it easier for them to do what they do and perhaps more profitable if they don’t have to have admitting privileges at a hospital within 30 miles of the location of the abortion clinic.
That is very different from the potential interest of their patients. Their patients have exactly the opposite interest. Their patients have the interest in making sure the abortion provider provides for a safe, healthy environment in which adequate care can be provided to the patient, such that, as complications arise, the doctor can take the patient to a hospital and, with those admitting privileges, can go about setting in order the course of treatment that needs to be pursued.
And so, Justice Alito went on to explain that in this circumstance you have a completely different set of interests. Some that are being advanced by abortion providers, and some that the state holds and some that the patient holds. They are separate. They are distinct. Here, they are at odds with each other. Justice Alito went on to explain, “This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement… Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring.”
So with this circumstance, the plaintiffs did not have standing. They didn’t even assert the prerogative of assert the rights of themselves. They didn’t claim that they themselves had injuries that were constitutionally cognizable in court. They instead said they that were asserting them on behalf of an injury that would be suffered and had not yet arisen on the part of their patients, and that’s a problem. So, the Supreme Court, as far as I can tell based on the time I have spent reviewing the decision, abandoned its ordinary standards and applied a different standard here so as to make it easier for this group of plaintiffs to raise a constitutional challenge. So that was the first error that I think deserves to be mentioned in this context. The error apparent in the fact that the Supreme Court ignored the fact that plaintiffs before the court lacked standard. They just glossed over this issue. Why? Because it involves abortion, and I guess abortion is different. The plurality and the chief justice’s analysis on the standing issue in this case, simply doesn’t wash. It doesn’t add up. In fact, I believe it defies what every first-year law student is taught in American law schools. It doesn’t work.
Secondly, this draws attention to another problem with the court’s jurisprudence in this area. When abortion is treated differently from other things, it leads to a fair amount of tail chasing by the court, because the court has stepped in starting with Roe v. Wade and continuing with Planned Parenthood v. Casey and the other cases since then on this topic. The court has stepped in essentially as a super legislative body, and it has attempted to set out a rule that you can’t undermine what the court has declared to be a right to access abortion. Let’s set aside, for a moment, that question of what we’d be looking at if we were dealing with a law prohibiting abortion. This isn’t that. Again, Act 620, adopted by the LA legislature, was a law that simply required that doctors and clinics preforming abortions be run by doctors having admitting privileges at a hospital within 30 miles. It isn’t an abortion ban, it’s that public health and safety regulation of the same sort that you might see in effect with respect to surgical centers or other outpatient treatment clinics throughout that state. So, nonetheless, you’ve got Roe v. Wade and its progeny in which the Supreme Court has stepped in, basically as a super legislative body, saying you can’t impose too heavy of a burden on a women’s access to, or ability to obtain an abortion. The problem with that is that there is nothing in the Constitution that says that. There is nothing in the constitution that makes this a federal issue. There is nothing in the constitution that takes what is essentially a legislative judgement, namely the legality, or lack thereof of a particular medical procedure and makes it a question not only of federal constitutional law but of federal constitutional law can be written and then addressed and then allowed to evolved solely in the hermetically sealed chamber of Supreme Court of the United States. This is what produces this kind of tail chasing. This is what produces this nonsense and it’s also what produces a lot of the political vitriol and venom surrounding the federal judiciary. Why? Well, because they exercised will instead of judgment. What do I mean by that? In Federalist 78, Alexander Hamilton referred to the difference between what law makers do and what judges do. In the legislative branch, they exercise what Hamilton referred to as will. Meaning they decide what the law should be––they adopt policy. They say, “we think the law should say X,” and they have the ability to do that. Under our system of government, Article I of the constitution gives the law-making power, the power to engage in exercises of will, to the legislative branch. Judgement, by contrast, is what is wielded by the judicial branch. Judgement asks what not should be, but what is – and most notably what has been. It looks, as it were, in the rearview mirror, looking at what the law said as of a particular moment in time. So, it’s the job of the jurists not to say what the law should be, but instead say what the law is and only when the question of what the law is comes properly before the court’s jurisdiction in cases or controversies between multiple litigants.
So, Hamilton explained in Federalist 78 that there is a difference between will and judgment and that you never want the judicial branch exercising will. Why? Because among other things, it’s not their job. Judges are appointed in our federal system for life, so long as they are on good behavior. They are not subject to elections––ever. You don’t get elected to get on the court, you don’t get elected to stay on the court––you are on there for life. Well, why? Because your job is a relatively limited one. It looks only in the rearview mirror. Your job is not to set policy, but to interpret in very narrow circumstances. In this circumstance in Roe v. Wadeand its progeny, the Supreme Court stepped in and exercised will. As a result, they have taken decisions away from lawmakers––state and federal lawmakers alike––for decades. This has had the predicable result of making a lot of people unhappy at every point along the political continuum – every single point. Why? Well, because they exercised will instead of judgement. They exercised legislative jurisdiction rather than judicial discretion.
Justice Thomas in his dissenting opinion in June Medical Services v. Russo said, referring to Roe v. Wade and its progeny, “… those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”
Justice Thomas wrote in a separate passage explaining, “Roe is grievously wrong for many reasons, but the most fundamental is that its core holding––that the Constitution protects a women’s right to abort her unborn child––finds no support in the text of the Fourteenth Amendment.”
So, madam president, we see that the court was wrong in pretending that the plaintiffs in that case––not patients, not women wanting to seek abortions, but doctors and clinics who have an interest potentially adverse to their own patients, who didn’t want to be regulated––were allowed to assert standing as if it were their constitutional injury that were at stake and it was not. The court went on to compound the problem by continuing to apply the statutory, effectively legislative, prescriptive framework of Roe and its progeny which in itself finds no support. Not in the Constitution, not in federal statute, not in 400 years of Anglo-American judicial precedent. Not in common law. They just made it up. They said its important, we therefore deem it to be part of the Constitution. These are the first two errors. There is a third error I want to call out from the Supreme Court’s unfortunate and very wrong ruling in June Medical Services v. Russo.
The third category of error that’s built into this decision relates to the standard by which a court deems something unconstitutional, separate and apart from the standing issue, and separate and apart from the fact that Roe was a made-up doctrine. There is also a problem in that the court didn’t approach this constitutional question the same way it’s supposed to address all other constitutional questions. Under a well-worn line of cases, including a case called the United States v. Salerno, the Supreme Court, with only very rare exceptions not relevant nor present here, does not declare a statute facially unconstitutional unless that statute is alleged and proven to have been unconstitutional in all of its potential applications. Let’s break that down into more common language. You can’t just walk into court and say that a particular law is categorically unconstitutional. You have to wait until that law is unconstitutionally applied to you. That’s called an as-applied challenge. As-applied challenges are the norm, they are the rule, they are the default. In almost all cases, that is how you get something deemed unconstitutional––through an as-applied challenge. That is, the court doesn’t just strike it down in its entirety. But it’s striking down the law in its entirety that the court did here, that the court was asked to do here, that the court in fact did here under circumstances in which the law had not even yet been implemented. It had never even been enforced––not once. It didn’t even wait to see whether it could be, or would be, or might be implemented in a manner consistent with the text and history and structure of the United States Constitution. They essentially just walked in and said “the whole thing is unconstitutional, get rid of it.” Why is that a problem? It does matter. It matters because ours is a system of rules and laws; it’s based on the constitutional text. Yes, precedent factors into it, but precedent can’t be the inexorable command. In any event, precedent here went the other way with respect to the standard to which you deem something unconstitutional in all of its applications.
As Justice Gorsuch explained in his separate dissent, “In effect, the standard for facial challenges has been flipped on its head: Rather than requiring that a law be unconstitutional in all of its applications to fall, today’s decision requires that Louisiana’s law be constitutional in all its applications to stand.”
In other words, as Justice Gorsuch explained, they applied a completely different set of rules here. Why? Well, simply because this involves abortion, and abortion is different. Somehow abortion, notwithstanding the fact that it makes no appearance in the Constitution, is treated differently. Now, abortion is treated differently even in this separate line of cases, even in this separate line of precedents dealing with facial challenges versus as-applied challenges.
If in fact the Supreme Court is going to stick to stare decisis, the principle invoked over, and over, and over again in that frankly awful decision yesterday, for which the court should be ashamed, is the principle that basically says that once a court has decided something one way, they will continue to follow that precedent most of the time unless they really don’t want to.
They invoked stare decisis over and over and over again in that case and said that’s just how it had to be because well stare decisis requires that. Well, they didn’t follow stare decisis. They didn’t follow their own precedent when it comes to their standing doctrine. They didn’t follow their own precedent. They didn’t adhere to stare decisis when it comes to United States v. Salerno. They utterly ignored the fact that this is a case in which the statute invalidated by the Supreme Court of the United States yesterday is capable of being applied in a fully constitutional manner.
Finally, Mr. President, they made a number of assertions about the factual records in the case and the effect of Louisiana’s Act 620 that are simply wrong. They invalidated this law by saying, the Louisiana legislature claims that this Act 620 was put in place to protect women’s health, but we don’t know if that is the case. Well, we don’t think they met that standard here. First of all, in doing that, they ignored precedent applicable in literally every other scenario in which they differ substantially to the determination of the legislative body in deciding whether the law that they are passing will in fact have the effect that they want – especially in an area like public health and safety. Ignore the fact that they had abundant testimony before the Louisiana legislature supporting the basis of what they were doing.
In Justice Gorsuch’s dissent, he referred to multiple pieces of information before the legislature. He appointed out that one woman testified that while she was in an abortion clinic after having a procedure and she was hemorrhaging, her abortion provider told her, “You are on your own. Get out.” Eventually, the woman went to the hospital where an emergency physician removed fetal body parts that the abortion provider had recklessly left in her body. Another patient who complained of severe pain following her abortion was told to simply go home and lay down. In another case, a clinic physician allowed a patient to bleed for three hours even though a clinic employee testified that the physician would not let her call 911 because of a possible media involvement. In the end, that employee at that clinic called 911 anyway and emergency-room personal, upon the arrival of that patient, discovered that the patient had a perforated uterus and as a result needed a hysterectomy.
A different physician speaking to the Louisiana state legislature in connection with their deliberations on Act 620 explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In the experience of that physician, “the situation puts a woman’s health at an unnecessary, unacceptable risk that results from a delay of care and a lack of continuity of care.” It was on this basis that the Louisiana legislature concluded that having admitting privileges would help to contain these risks and help protect women because a physician, the same physician who performed that procedure, if he or she has admitting privileges to a hospital within 30 miles of the abortion clinic in question would be the physician in the very best position to treat that patient.
So, yeah, could reasonable minds reach different conclusion as to the exact set of regulations applicable to an abortion clinic or any other type of healthcare clinic? You bet. There are a lot of ways to get at the same issue. There are a lot of ways to protect human health and safety. It’s not the job of the Supreme Court of the United States to decide exactly how those laws are written in Louisiana. Make no mistake, that is what the Supreme Court did here. They might as well have removed their robes and pretended simply to be law makers. What they are doing is that blatant, and it is very wrong. There is more over a connection between this logical disconnect that I referred to, and the fact that this standing analysis I alluded to earlier shows something else the Supreme Court did wrong. This shows that the very same concerns that Louisiana legislature had on behalf of the patients, the would-be victims of medical malpractice of many of these abortion clinics, are concerns that were not present before the court. They were not represented among the plaintiffs in that case, and that is yet another reason why the Supreme Court of the United States acted lawlessly in a shameful manner in the June Medical Services Case.
Thank you, Mr. President.