Legal Argument In Louisiana Could Have Huge Ramifications For Abortion Lawsuits

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Astute legal observers will surely note that, in numerous high-profile abortion cases, a named party to the suit is not a woman looking to procure an abortion (such as the eponymous alias "Roe" in Roe v. Wade), but is instead an abortion clinic. Two leading examples are the 1992 Supreme Court case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which concocted the "undue burden" standard that still governs federal judicial review of abortion restrictions, and the 2016 Supreme Court case of Whole Woman's Health v. Hellerstedt.

But why these abortion clinics should get "standing" to bring a federal lawsuit under Article III of the U.S. Constitution is not an easily resolved question. As I explained in a Daily Wire op-ed earlier this month, standing requirements were most clearly laid out in the 1992 Supreme Court case of Lujan v. Defenders of Wildlife as consisting of (1) an injury-in-fact, (2) a causal connection between the injury and the conduct brought before the court, and (3) a likelihood of redressability by a court.

But this does not necessarily explain how an abortion clinic would be able to bring suit against a legislature's enacted abortion restriction. The Court has therefore fabricated an alternative standing requirement, called "third-party standing," which a third-party actor must meet in order to qualify for Article III standing on behalf of an independent first-party actor. In the 2004 case of Kowalski v. Tesmer, the Court outlined two additional factors for these third-party actors: (1) "the party asserting the right [must have] a close relationship with the person who possesses the right," and (2) there must be a "hindrance to the possessor’s ability to protect his own interests."

Many conservatives jurists, including Justice Clarence Thomas in his Hellerstedt dissent, have criticized the Court's "third-party standing" doctrine in no uncertain terms. Not only is the Court's "third-party standing" doctrine "no model of clarity," said Thomas in Hellerstedt, but "the Court has [also] shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake." As Thomas stated most directly later in his dissent: "Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child."

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