These Reproductive Rights Cases Could Do More Damage to the Judiciary Than Dobbs
In key cases on abortion and contraception this past week, conservative judges debated how to approach what seems like a dry and technical issue: who has standing to be in court in the first place. Standing, however, is emerging as a major flashpoint in conflicts about reproductive rights. How courts rule will tell us about whether the same rules apply to everyone in court fighting about our nation’s laws on reproduction.
Standing took center stage in cases challenging the adequacy of exceptions to criminal abortion bans in Tennessee, Texas, Oklahoma, and Idaho—some of the most important challenges since the Supreme Court overturned Roe v. Wade last year. Plaintiffs spotlight contradictions in the states’ definition of a medical emergency and argue that the exceptions should be interpreted to include scenarios where plaintiffs face a serious threat to their health, safety, or fertility—or when they carry a child with a fetal condition that is likely to be fatal.
Tennessee seeks to dismiss the suit against it partly by arguing that the lead plaintiff, Nicole Blackmon, has no standing because she was so afraid of another pregnancy that she had her tubes tied. Because Blackmon cannot get pregnant again, the argument goes, she has no right to complain about a Tennessee law that forced her to continue a pregnancy after developing warning signs of life-threatening preeclampsia and learning that her child suffered from a fatal fetal condition. Idaho and Texas have likewise made standing central to their motions to dismiss joint challenges to their state bans. All three states acknowledged the horrors suffered by pregnant patients but insisted the state was not to blame—and that the plaintiffs thus have no standing to bring them to court. Idaho, for example, argued that the attorney general, medical board, and governor don’t have the power to prosecute anyone under the state’s criminal abortion ban. Texas argued that patients should sue their doctors for following the law, not the architects of the law itself.
Meanwhile, standing dominated oral argument on Monday when the U.S. Court of Appeals for the 5th Circuit, the court’s most conservative court of appeals, heard the government’s appeal of a case about minors’ access to birth control. Jonathan Mitchell, the former Texas solicitor general and architect of any number of anti-abortion strategies, is now attacking parts of the federal Title X program that guarantees minors confidential access to contraception even if their parents do not consent. The 5th Circuit three-judge panel—with two judges appointed by George W. Bush and one by Donald Trump—appeared highly sympathetic to Matthew Deanda, a parent who describes himself as raising his daughters “in accordance with Christian teaching on matters of sexuality.” Indeed, one of the judges on the panel suggested that Title X worked a “destruction of parental rights.” The only thing that seemed likely to stand in Deanda’s way was standing. To have standing, Deanda, too, needed a concrete injury. Texas District Judge Matthew Kacsmaryk found that he did, even though Deanda was not worried that his daughters had sought Title X family planning services or would do so in the future.
True, different courts applying different rules are deciding standing in these cases, but the tension between arguments in closely related cases is still striking. When patients challenge state bans and the exceptions tied to them, conservative states advocate for a narrow idea of standing, one that precludes the plaintiffs from raising concerns about “future health or enforcement” because those injuries would arise from “a series of contingent events too speculative for standing,” even in cases where concrete injuries have already been suffered. In Deanda, by contrast, neither Jonathan Mitchell nor the 5th Circuit seemed concerned about such speculation—even though Deanda acknowledges that his daughters never sought Title X services in the past. The 5th Circuit and Judge Kacsmaryk were equally comfortable with speculation in a case involving access to mifepristone, a drug used in more than half of abortions nationwide. The FDA argued that the odds that the plaintiff doctors would be forced to treat a patient with mifepristone-based complications were vanishingly low. The 5th Circuit and Judge Kacsmaryk were unconcerned: Some patients who took mifepristone might suffer complications, and some of them might seek treatment from the plaintiffs, the thinking went at the time.
The positions in these two cases are at odds with past trends. Historically, conservatives argued for a narrow approach to standing. There were practical as well as legal reasons for this: When courts were less sympathetic to conservative causes, as in the years of the Warren and Burger Courts, there were good reasons to keep progressive social movements and individual plaintiffs out of court. Now that Donald Trump has reshaped the federal judiciary, the roles have reversed: Conservatives are the ones promoting exotic and broad new ideas about standing—and rushing to settle issues in federal court they fear they would lose if voters were given the right to decide.
The abortion exceptions litigation adds a new wrinkle: When plaintiffs have a devastating enough argument against an abortion ban, legally or emotionally, conservative states still hope standing can keep a court from squarely confronting an issue. Neither Texas nor Tennessee nor Idaho want public attention on the experiences of women with wanted pregnancies who are denied care by physicians charged with interpreting sweeping state bans and do not want exceptions litigation to continue. Nor are these states confident that even conservative state courts will take their side: Judges in states as conservative as Indiana and Oklahoma have suggested their state constitutions protect a right to abortion when patients face certain threats to life or serious danger to health. For abortion rights supporters, exceptions litigation is a perfect first step in an incremental attack on Dobbs and the laws it left in place. For conservative states, in turn, standing seems to be a perfect way out.
Whatever standing doctrine ought to look like, the rules should not change depending on whether the plaintiff is a woman who suffered preeclampsia and stillbirth instead of a Christian father who does not want his daughters using birth control. The Supreme Court’s legitimacy took a serious blow after the conservative majority handed down a decision in Dobbs. Other courts face a similar threat to their legitimacy—and in the case of state courts like those in Texas, judges even face voters directly. That’s why the standing wars are an important front in conflicts over abortion, reproduction, contraception, and miscarriage. They will tell us whether concerns about legitimacy can still rein in courts—and when reproductive rights are at issue, whether the rules will be the same for everyone.
