June Medical Services LLC v. Russo
18-1323: Whether the decision by the U.S. Court of Appeals for the Fifth Circuit, below, upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital, conflicts with the Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.
18-1460: Whether abortion providers have third-party standing to challenge Louisiana’s statute.Advocates
- Julie Rikelman, for June Medical Services LLC
- Elizabeth Murrill, for Stephen Russo, Interim Secretary, Louisiana Department of Health and Hospitals
- Jeffrey B. Wall, for the United States, as amicus curiae, supporting Stephen Russo, Interim Secretary, Louisiana Department of Health and Hospitals
Editor’s Note: This entry addresses the consolidated cases June Medical Services LLC v. Russo (18-1323) and Russo v. June Medical Services LLC (18-1460).
In June Medical Services, physicians challenge a statute that requires abortion providers to have admitting privileges at hospitals within thirty miles of their respective clinics. In Whole Woman’s Health v. Hellerstedt, in 2016, the Court struck down an identical Texas law as unconstitutional.
Throughout the argument, the Justices—mainly Kavanaugh—press the question of whether, according to the Petitioners, such statutes are per se unconstitutional or whether the courts should examine them on a case-by-case basis. In the first set of answers below, Joanna Grossman responds to these questions for Petitioner June Medical.
As Professor Grossman’s responses demonstrate, the Court need not conclude that admitting-privilege requirements are always unconstitutional. In practice, however, admitting-privilege requirements all likely fail the undue burden test because states will be hard-pressed to provide evidence that they have benefits for women. Such fact-finding by a state legislature would conflict with the extensive national data (not data local to Texas) upon which the Whole Woman’s Health Court relied. And if a law offers no benefit, then—unless there is no burden—it cannot be constitutional, even if the burdens vary from state to state. Consider, for example, a statute requiring doctors to recite their ABCs before performing an abortion: such a statute would place just a tiny burden on doctors and women, but the lack of any benefit is dispositive.
Louisiana’s law could survive the undue burden analysis if Louisiana could provide evidence that (1) the law creates no burden, or (2) unlike in the rest of the country, admitting privileges in Louisiana provide benefits. But the Louisiana district court found here—and the Fifth Circuit agreed—that the Louisiana legislature failed to proffer such evidence. The Whole Woman’s Health data may not have preordained this finding, but they do render the finding unsurprising.
A threshold inquiry (from the consolidated case Russo v. June Medical Services) is whether the physician-plaintiffs have third-party standing to challenge Louisiana’s statute. To be clear: as Julie Rikelman (for Petitioners) expertly argued, physicians should have standing under Kowalski v. Tesmer. As Chief Justice Rehnquist wrote for the Court in that 2004 decision, a majority of the justices have always taken a generous view of third-party standing in a special category of cases where the government enforces the law directly against the litigant. (Academics have pressed even further, arguing that such litigants should actually qualify for first-party standing because every individual has a right to not be subject to an unconstitutional law.) June Medical falls into this category of cases because Louisiana enforces its admitting-privilege law directly against the physician-plaintiffs.
Justice Breyer’s questions to Respondents, however, press a different point about why physicians should have standing. He posits that rejecting standing in June Medical would overturn 40 years of abortion jurisprudence. I answer, for Respondents, that rejecting standing in this case does not necessarily overrule the Court’s prior abortion decisions.June Medical Services LLC v. Russo on Oyez: https://www.oyez.org/cases/2019/18-1323