With Louisiana Abortion Case, the Supreme Court Can Re-Establish the Rule of Law

COMMENTARY: Women shouldn’t entrust the defense of their health-and-safety interests as patients at abortion businesses to the very interests that have flouted existing health-and-safety regulations.

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The Supreme Court has been the accomplice of the nation’s abortion advocates for almost half a century. In 2020, however, the high court has the opportunity to end this unholy alliance.

On Wednesday, the Supreme Court heard oral arguments in a case — June Medical Services v. Russo — that will allow the court to right many of the wrongs of its abortion jurisprudence. 

The June case involves a challenge by abortionists and abortion businesses to a Louisiana “hospital admitting privileges” law. The Louisiana legislators supporting the law responded to a long string of abortion industry abuses that put the lives of Louisiana women at risk. Failing to stock emergency materials, little oversight of controlled substances, and gross medical negligence were commonplace. The failure to screen physicians for competency was the norm. At June Medical Service’s Shreveport facility, for example, an ophthalmologist and a radiologist performed abortions.

“If you are going to perform abortions in the State of Louisiana,” State Rep. Katrina Jackson stated in introducing her admitting privileges bill, “you’re going to do so in a safe environment and in a safe manner that offers women the optimal protection and care of their bodies.” You might think this Democratic legislator’s common sense, pro-women’s health regulation would be welcomed by all medical professionals, particularly by those claiming that abortion is health care. But you would be wrong. “Abortion rights” today has nothing to do about the “rights holders.”

Opponents of the law argue that this is an open-and-shut case of unconstitutional overreach by state officials. They point to a 2016 case — Whole Woman’s Health v. Hellerstedt — in which the Supreme Court struck down a hospital admitting privileges law passed in Texas (in a 5-3 decision). Unlike the Texas case, however, Louisiana legislators set forth a clear factual case for establishing “quality control” over those performing abortions in the state. It’s also worth noting that they did not unfairly raise the bar for abortion doctors. Their state requires all other ambulatory surgical doctors in the state to have hospital admitting privileges. Mandating that abortionists have hospital admitting privileges simply closes the abortionists’ loophole that gives them preferential treatment.

Even before considering the merits of the Louisiana law, the Supreme Court should address the important jurisprudential matter of whether this case should even be in federal court — the so-called standing issue. You see, a person generally can go to court only to assert his or her own legal rights and interests. A narrow exception to this “standing” rule exists only when a third party has a close relationship to the right-holder or is unable to sue and can trust the third party to pursue his or her interests. Here, Louisiana’s abortionists and abortion centers — the very interests whose practices placed the state’s women in danger — sued to block the admitting privileges law. Not one woman joined their complaint.

For all its problems, the tragic 1973 Roe v. Wade case creating a constitutional right to abortion, was filed on behalf of an anonymous woman — Jane Roe. (The world would later know Roe by her real name, Norma McCorvey). Since Roe, however, abortionists and abortion businesses are more often than not the plaintiffs running to court to block reasonable regulation of their business. Consider the 1992 Supreme Court case of Planned Parenthood v. Casey, which ruled that an abortion regulation would be unconstitutional if it placed “substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” It was brought not by any aggrieved woman in Pennsylvania but by five abortion facilities and an abortionist.

The 2016 Texas admitting privileges case similarly was brought by the centers and abortion doctors. Justice Clarence Thomas, in his scathing dissent in Whole Woman’s Health, denounced his colleagues in the majority for “erroneously allow[ing] doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.” 

Women shouldn’t entrust the defense of their health-and-safety interests as patients at abortion businesses to the very interests that have flouted existing health-and-safety regulations. Particularly in Louisiana. At Wednesday’s oral arguments, Justice Samuel Alito zeroed in on this clear conflict. “Would you agree with the general proposition that a party should not be able to sue ostensibly to protect the rights of other people,” he asked, “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?”

Unsurprisingly, the lawyer for the Louisiana abortionists was fine with this conflict of interest. The court should align abortion-related lawsuits with all other cases brought before our courts and make clear that only women claiming to be aggrieved by a given regulation can challenge that regulation in court.

Should the court decide not to rectify its standing rules in abortion cases and throw out the abortionists’ challenge, it can, of course, review the case on its merits or substance. State governments exercise regulatory authority for the good of the people they represent in all kinds of areas. Louisiana legislators responded to horrific findings by state investigators, and after holding hearings where women recounted suffering grave injury and unthinkable neglect by abortionists. Such good governance isn’t a burden for women. Rather, it’s a laudable recognition of our worth and dignity.

That this is not the view of abortionists and their apologists became clear in another notable exchange during Wednesday’s oral arguments. “So your view is that [admitting privileges laws] are unconstitutional in any state, regardless of the facts?” Justice Brett Kavanaugh asked counsel for the abortion businesses.

The counsel’s response: “They certainly serve no valid state interest.”

There you have it — no valid state interest — in all its cold cruelty. 

Rather than continue to allow the abortion industry to craft rules that leave it virtually unsupervised, the Supreme Court in June can re-establish the rule of law — a rule that should protect women’s health and safety.

Andrea Picciotti-Bayer is legal adviser for The Catholic Association Foundation.

She is the co-host of Conversations With Consequences on EWTN Radio Saturdays at 5pm Eastern.