While ordinarily, plaintiffs in court cases lack standing to argue for the rights of those who are not parties to the case, the Supreme Court has permitted doctors to argue on behalf of women’s right to abortion ever since the immediate aftermath of Roe v. Wade. Doctors were involved in the early contraception and abortion cases as well, but back then they were in part arguing for their own freedom from prosecution. Once abortion became legal, the theory supporting what is known as third-party standing for doctors and clinics in post-Roe abortion cases is that there are too many obstacles of timing, resources and privacy for women to get to court to assert their own right to an abortion free of the regulatory obstacles that stand in their way. Take away doctors’ right to advocate in court on their patients’ behalf and most legal attacks on state-created obstacles to abortion conveniently disappear.

Doctors’ standing is so much an accepted part of abortion litigation that Louisiana didn’t even question it in defending its law in the lower courts, and the lower courts naturally didn’t address it. Ordinarily, the Supreme Court refuses to address issues that were not raised at an earlier stage. On its face, then, the state’s cross-petition is frivolous. I sensed potential trouble when I stumbled upon it by chance over the summer, but the idea that the justices would actually grant it seemed so far-fetched that I put it out of my mind.

It turns out that the idea of eliminating doctors’ third-party standing has been in the anti-abortion movement’s water supply ever since Justice Thomas raised it in his dissenting opinion in Whole Woman’s Health three years ago. I suppose Louisiana’s cross-petition is an example of “when all else fails, change the subject,” but I have to give the state credit for coming up with a superficially clever argument. The state is arguing that the realities of clinic-based abortion practice belie the assumption behind the third-party standing doctrine, which is that the interests of both parties are aligned. Instead, the state notes that there was no evidence in this case “that any particular Louisiana woman who has obtained or is considering an abortion would personally (1) prefer to obtain an abortion from a doctor without admitting privileges, (2) prefer to forgo the protections Act 620 was intended to provide, or (3) consider her decision to obtain an abortion to be burdened by Act 620.”

Of course, there’s so much wrong with that argument that the question is where to begin. It assumes the counterfactual: that the law was intended to protect women and that it actually protects them, or that women have any reason to prefer a doctor who has admitting privileges. The clinic points out in its own brief that only four out of thousands of abortion patients it has treated over the past 23 years required hospital treatment and that the District Court found that all had received appropriate hospital care “regardless,” in the words of the district judge, “of whether the physician had admitting privileges.”

In its initial response to the clinic’s petition, the state argues that if Whole Woman’s Health is so confusing as to have pointed a well-meaning appeals court in the wrong direction, then that shows the best course is for the Supreme Court to overturn it. I don’t think the court is going to take that step. It would be too bold, too obvious, too soon, too close to the 2020 election. And, most significantly, the court doesn’t have to expose itself in that way to achieve its anti-abortion aims. Rather, it’s much more likely that the court will do what the Fifth Circuit did: reinterpret the precedent to its liking; credit the Fifth Circuit’s charges that abortion practice in Louisiana was sloppy and dangerous rather than the District Court’s precise findings that the safety record of abortion in the state was “excellent”; or pretend, as the appeals court did, that insignificant differences between Texas and Louisiana justify a completely different outcome when it comes to the constitutional rights of women.

Or perhaps the court will do all three. If it does even one — if the Louisiana law survives this test, which is really a test of the Supreme Court itself — then those of us who have set aside talk of impeachment and the day’s multiple distractions long enough to understand the game that’s afoot will have an obligation somehow to break through the din when the decision is announced in late spring or early summer and let the public in on the secret.

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