June Medical Services v. Russo

Floor Speech

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Mr. LEE. Madam President, I come to the floor wanting to discuss a case called June Medical Services v. Russo. This was a decision announced by the Supreme Court of the United States yesterday.

This is a decision that hasn't gotten as much attention as many cases that go before the Supreme Court. It is, nonetheless, a significant decision, and it is a decision that, I believe, is deeply flawed and betrays many of the legal and constitutional principles that the Supreme Court of the United States purports to apply and is supposed to be bound by as it decides cases and controversies properly brought before its jurisdiction.

The June Medical Services 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 acting admitting privileges, and it did so in terms of a reference to the ability to admit a patient and to 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 that 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 is not what it did. It simply acknowledged the fact that an abortion is a type of surgical medical procedure and, in taking into account the fact that it is a medical procedure, is sometimes fraught with medical peril that can sometimes result in people getting hurt and people having to go to the hospital and that it might be helpful in those circumstances to have the person who performed the procedure have admitting privileges at a hospital within 30 miles of the abortion clinic.

The constitutionality of the law was challenged in a lawsuit brought by five abortion clinics and four abortion providers in Louisiana. Now, they challenged the law in Federal district court, and they did so before the act even took effect, arguing that it was unconstitutional because it imposed an undue burden on their patients' right to obtain abortions. The abortion clinics and the medical providers at issue--the doctors and the clinics that challenged it--were quite significantly not arguing that these were their own constitutional rights that were being impaired. They were, instead, arguing that they had standing, that they had the ability to stand in the shoes of those who were among their patients, those whom they served.

So 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 alluded to just a moment ago. The concept of standing is rooted in article III of the Constitution. Article III is the part of the Constitution that establishes the judicial branch and sets up the Supreme Court and such inferior courts as Congress might choose to create. Significantly, neither article III nor any other provision of the Constitution gives the courts the authority to make law, to decide policy, or even, for that matter, to announce what the law is or says or should say at any moment unless, of course, there is a case or a controversy before the court.

What that means is 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 as to the meaning of a particular provision of Federal statutory or constitutional law. Without that type of case or controversy, the court lacks jurisdiction. So, even though this isn't a concept that nonlawyers employ in day-to-day conversation, it is something that lawyers in America 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, that is fairly traceable to the conduct of the defendant--and the conduct at issue must be 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 a controversy, and the court has no jurisdiction

It is well established that, within the Federal court system, this standing inquiry is what we call part of the court's judiciary doctrine, meaning it is 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 raises it. It cannot be waived. As a result, at any stage of the litigation--whether at the trial court, at the appellate court, or at the Supreme Court of the United States--it can be raised by any party or any member of the judiciary sitting in that case.

It is significant that in this 5-to-4 ruling, in an oddly configured plurality opinion of four Justices--Justices Ginsburg, Breyer, Kagan, and Sotomayor--being united in a single plurality opinion and joined by Chief Justice Roberts in a concurring opinion, they cobbled 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. This is stunning, in fact. They are asserting the constitutional rights and the alleged injuries of third parties.

Now, in other circumstances, one might imagine a scenario in which you might have someone coming before the court, claiming to be the executor of somebody's estate or, perhaps, the legal guardian of a juvenile or of a 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 argue--that is the clinics and the abortion providers in question--that its own constitutional rights were being impaired. They instead asserted impairment of the rights of third parties not before the court, of would-be patients whom 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 mattered because, perhaps, it was not an argument that was properly raised before the district court. Yet any first-year law student in any American law school, let alone a Federal judge or a Supreme Court Justice, knows that standing isn't waivable. It is a threshold jurisdictional question, and, as such, it cannot be waived. It is never waived. It is always a live, relevant, legitimate question, one that can be raised sua sponte by the Court itself.

In his dissent, Justice Alito acknowledged this point and explained it well with the following words:

Neither waiver nor stare decisis can justify this holding, which clashes 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 got here, on the one hand, a State regulating a particular act--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 that entity, 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 than the potential interest of their patients. Their patients have exactly the opposite interest. Their patients have the interest in making sure that 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's point was simply that, in this circumstance, you have a completely different set of interests, some that are being advanced by abortion providers, some that the State holds, and some that the patient holds. They are separate; they are distinct; and here, really, they are at odds with each other.

So 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 asserting the rights of themselves. They didn't claim that they themselves had injuries that were constitutionally cognizable in court.

They instead said that they 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 is a problem.

So the Supreme Court, as far as I can tell, based on the time that I have spent reviewing the decision, the Supreme Court 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.

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