Wednesday, July 1, 2020

June Medical Services Analysis

Senator Mike Lee spoke on the Senate floor Tuesday about the Supreme Court's opinion in June Medical Services v. Russo.
Mr. LEE. Madam President, I come to the floor wanting to discuss a case called June Medical Services v. Russo. This was a decision announced by the Supreme Court of the United States yesterday.

This is a decision that hasn't gotten as much attention as many cases that go before the Supreme Court. It is, nonetheless, a significant decision, and it is a decision that, I believe, is deeply flawed and betrays many of the legal and constitutional principles that the Supreme Court of the United States purports to apply and is supposed to be bound by as it decides cases and controversies properly brought before its jurisdiction.

The June Medical Services case involved the constitutionality of a statute enacted by the Louisiana Legislature, known as Act 620. The legislation in question required any doctor performing abortions within Louisiana to hold active admitting privileges at a hospital within 30 miles of the location of the abortion clinic in question. The Act then defined what it meant to have acting admitting privileges, and it did so in terms of a reference to the ability to admit a patient and to provide diagnostic and surgical services to such patient. It is understandable why the State of Louisiana or any State might want to consider adopting such legislation.

I want to be very clear at the outset that this case did not involve any legislation prohibiting abortion. In fact, there is nothing about Act 620 that made abortions illegal in Louisiana nor is there anything about Act 620 that would have made it practically impossible or really difficult for people to obtain an abortion. That is not what it did. It simply acknowledged the fact that an abortion is a type of surgical medical procedure and, in taking into account the fact that it is a medical procedure, is sometimes fraught with medical peril that can sometimes result in people getting hurt and people having to go to the hospital and that it might be helpful in those circumstances to have the person who performed the procedure have admitting privileges at a hospital within 30 miles of the abortion clinic.

The constitutionality of the law was challenged in a lawsuit brought by five abortion clinics and four abortion providers in Louisiana. Now, they challenged the law in Federal district court, and they did so before the act even took effect, arguing that it was unconstitutional because it imposed an undue burden on their patients' right to obtain abortions. The abortion clinics and the medical providers at issue—the doctors and the clinics that challenged it—were quite significantly not arguing that these were their own constitutional rights that were being impaired. They were, instead, arguing that they had standing, that they had the ability to stand in the shoes of those who were among their patients, those whom they served.

So I would like to talk about three critical features of this decision and why I think the decision was wrong in all three respects.

First, let's talk about this standing issue that I alluded to just a moment ago. The concept of standing is rooted in article III of the Constitution. Article III is the part of the Constitution that establishes the judicial branch and sets up the Supreme Court and such inferior courts as Congress might choose to create. Significantly, neither article III nor any other provision of the Constitution gives the courts the authority to make law, to decide policy, or even, for that matter, to announce what the law is or says or should say at any moment unless, of course, there is a case or a controversy before the court.

What that means is that a court cannot issue an advisory opinion. In our Federal court system, the courts have the power to decide actual conflicts, disputes, cases, or controversies between one or more parties who happen to disagree as to the meaning of a particular provision of Federal statutory or constitutional law. Without that type of case or controversy, the court lacks jurisdiction. So, even though this isn't a concept that nonlawyers employ in day-to-day conversation, it is something that lawyers in America and judges, particularly Federal judges and lawyers who practice before Federal courts, are familiar with.

The concept of standing acknowledges that, with very few exceptions not relevant in this context, a party may not sue on behalf of or in order to address an injury sustained by a third party. In order to have standing in Federal court, you have to have an injury in fact—that is concrete and particularized, that is sustained by the plaintiff, that is fairly traceable to the conduct of the defendant—and the conduct at issue must be capable of being remedied by a judicial order within the court's jurisdiction. Without those elements being present, you can't have standing. Without standing, you can't have a case or a controversy, and the court has no jurisdiction

It is well established that, within the Federal court system, this standing inquiry is what we call part of the court's judiciary doctrine, meaning it is a threshold inquiry that determines jurisdiction. As a result, it can be raised at any moment by any party. It can be, and sometimes will be, addressed by the court acting sua sponte, meaning, regardless of whether any of the parties raises it. It cannot be waived. As a result, at any stage of the litigation—whether at the trial court, at the appellate court, or at the Supreme Court of the United States—it can be raised by any party or any member of the judiciary sitting in that case.

It is significant that in this 5-to-4 ruling, in an oddly configured plurality opinion of four Justices—Justices Ginsburg, Breyer, Kagan, and Sotomayor—being united in a single plurality opinion and joined by Chief Justice Roberts in a concurring opinion, they cobbled together a conclusion that it was just fine for the court to act in this circumstance, notwithstanding the fact that the doctors and the abortion clinics in this case were not even arguing that their own constitutional rights were being impaired. This is significant. This is stunning, in fact. They are asserting the constitutional rights and the alleged injuries of third parties.

Now, in other circumstances, one might imagine a scenario in which you might have someone coming before the court, claiming to be the executor of somebody's estate or, perhaps, the legal guardian of a juvenile or of a person who had been deemed incapacitated. In those circumstances, that person has standing, but the standing belongs to the person suffering the injury. It is just allowed to be asserted by the third person standing in that person's place. That is not what we had here. Neither in the complaint nor in any of the moving papers did any of the plaintiffs argue—that is the clinics and the abortion providers in question—that its own constitutional rights were being impaired. They instead asserted impairment of the rights of third parties not before the court, of would-be patients whom they might have.

The lack of standing in this case is apparent, and the lack of standing was glossed over by this cobbled-together combination of the four-member plurality and Chief Justice Roberts. The plurality glossed over it and, in part, suggested that the standing issue might not have mattered because, perhaps, it was not an argument that was properly raised before the district court. Yet any first-year law student in any American law school, let alone a Federal judge or a Supreme Court Justice, knows that standing isn't waivable. It is a threshold jurisdictional question, and, as such, it cannot be waived. It is never waived. It is always a live, relevant, legitimate question, one that can be raised sua sponte by the Court itself.

In his dissent, Justice Alito acknowledged this point and explained it well with the following words:
Neither waiver nor stare decisis can justify this holding, which clashes with our general rule on third-party standing. And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.
The conflict of interest to which Justice Alito is referring refers to the fact that you have got here, on the one hand, a State regulating a particular act—here, abortion providers, clinics, and physicians who perform abortions. That entity, like any other entity that is otherwise going to be regulated, has an interest in being not regulated.

It makes it easier, perhaps cheaper, perhaps more lucrative for that entity, for those providers, to be in that business if they are less regulated. It makes it easier for them to do what they do and perhaps more profitable if they don't have to have admitting privileges at a hospital within 30 miles of the location of the abortion clinic.

That is very different than the potential interest of their patients. Their patients have exactly the opposite interest. Their patients have the interest in making sure that the abortion provider provides for a safe, healthy environment in which adequate care can be provided to the patient, such that as complications arise, the doctor can take the patient to a hospital and, with those admitting privileges, can go about setting in order the course of treatment that needs to be pursued.

And so Justice Alito's point was simply that, in this circumstance, you have a completely different set of interests, some that are being advanced by abortion providers, some that the State holds, and some that the patient holds. They are separate; they are distinct; and here, really, they are at odds with each other.

So Justice Alito went on to explain:
This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620's admitting privileges requirement. . . . Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring.
So with this circumstance, the plaintiffs did not have standing. They didn't even assert the prerogative of asserting the rights of themselves. They didn't claim that they themselves had injuries that were constitutionally cognizable in court.

They instead said that they were asserting them on behalf of an injury that would be suffered, and had not yet arisen, on the part of their patients, and that is a problem.

So the Supreme Court, as far as I can tell, based on the time that I have spent reviewing the decision, the Supreme Court abandoned its ordinary standards and applied a different standard here so as to make it easier for this group of plaintiffs to raise a constitutional challenge.

Mr. LEE. Madam President, that was the first error that I think deserves to be mentioned in this context—the error apparent in the fact that the Supreme Court ignored the fact that the plaintiffs before the Court lacked standing. They just glossed over this issue. Why? Well, because it involves abortion, and I guess abortion is different.

The explanation provided by the plurality and by the Chief Justice— understanding that in order to form a majority, sometimes you have to cobble together a concurring opinion with a plurality opinion, and that is what happened here.

Their analysis on the standing issue in this case simply doesn't wash. It doesn't add up. In fact, I believe it defies what every first- year law student is taught in American law schools. It doesn't work.

Secondly, this draws attention to another problem with the Court's jurisprudence in this area. When abortion is treated differently than other things, it leads to a fair amount of tail-chasing by the Court because the Court has stepped in—starting with Roe v. Wade and continuing with Casey and the other cases since then on this topic—the Court has stepped in essentially as a superlegislative body, and it has attempted to set out a rule saying that you can't undermine what the Court has declared to be a right to access abortion.

So let's set aside, for a moment, that question of what we would be looking at if we were dealing with a law prohibiting abortion, but this isn't that. Again, this was a law, Act 620, adopted by the Louisiana State Legislature that simply required that doctors and clinics performing abortions be run by doctors having admitting privileges at a hospital within 30 miles.

It is not an abortion ban. It is just a public health and safety regulation of the same sort that you might see in effect with respect to surgical centers or other outpatient treatment clinics throughout that State.

And so, nonetheless, you have got Roe v. Wade and its progeny in which the Supreme Court has stepped in, basically, as a superlegislative body saying you can't impose too heavy of a burden on a woman's access to or ability to obtain an abortion.

The problem with that is there is nothing in the Constitution that says that. There is nothing in the Constitution that makes this a Federal issue. There is nothing in the Constitution that takes what is essentially a legislative judgment; namely, the legality or lack thereof of a particular medical procedure and makes it a question not only of Federal constitutional law but of Federal constitutional law that can be written and then addressed and then allowed to evolve solely within the hermetically sealed chamber of the Supreme Court of the United States.

This is what produces this kind of tail-chasing. This is what produces this nonsense, and it is also, by the way, what produces a whole lot of the political vitriol and venom surrounding the Federal judiciary.

Why? Well, because they exercised will instead of judgment. What do I mean by that? Well, in Federalist No. 78, Alexander Hamilton referred to the difference between what lawmakers do and what judges do. In the legislative branch, they exercise what Hamilton referred to as “will,” meaning they decide what the law should be. They adopt policy. They say: We think the law should say x, and they have the ability to do that. Under our system of government, article I gives the lawmaking power, the power to engage in exercises of will, to the legislative branch.

Judgment, by contrast, is what is wielded by the judicial branch. Judgment asks not what should be but what is and, most notably, what has been. It looks, as it were, in the rearview mirror, looking at what the law said as of a particular moment in time.

So it is the job of the jurist not to say what the law should be but, instead, to say what the law is and only when the question of what the law is comes properly before the court's jurisdiction in cases or controversies between multiple litigants properly before the court's jurisdiction.

And so Hamilton explained in Federalist 78 that there is a difference between will and judgment and that you don't ever want the judicial branch exercising will.

Well, why? Because, among other things, it is not their job. Judges are appointed in our Federal system for life so long as they are on good behavior. They are not subject to elections, ever. You don't get elected to get on the court; you don't get elected to stay on the court. You are on there for life.

Why? Well, because your job is a relatively limited one. It looks only in the rearview mirror. Your job is not to set policy but to interpret in very narrow circumstances.

In this circumstance, in Roe v. Wade and its progeny, the Supreme Court stepped in and exercised will. As a result, they have taken decisions away from lawmakers—State and Federal lawmakers alike—for decades.

This has had the predictable result of making a lot of people unhappy at every point along the political continuum—every single point.

Why? Well, because they exercise will instead of judgment. They exercise legislative jurisdiction rather than judicial discretion.

Justice Thomas, in his dissenting opinion in June Medical Services v. Russo, said, referring to Roe v. Wade and its progeny:
[T]hose decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution's text. Our abortion precedents are grievously wrong and should be overruled.
Justice Thomas wrote in a separate passage, explaining that “Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman's right to abort her unborn child—finds no support in the text of the 14th Amendment.”

So we see that the Court was wrong in pretending that the plaintiffs in that case, not patients, not women who wanted to seek abortions but couldn't, but doctors and clinics who have an interest potentially adverse to their own patients who didn't want to be regulated, were allowed to assert standing as if it were their constitutional injury that were at stake, and it was not. The Court went on to compound the problem by continuing to apply the statutory, effectively legislative, proscriptive framework of Roe and its progeny, which itself finds no support—not in the Constitution, not in Federal statute, not in 400 years of Anglo-American judicial precedent, not in common law. They just made it up, and they said it is important. We, therefore, deem it to be part of the Constitution. These are the first two errors.

There is a third error I want to call out from the Supreme Court's unfortunate and very wrong ruling in June Medical Services v. Russo. The third category of error that is built into this decision relates to the standard by which a court deems something unconstitutional. Separate and apart from the standing issue, separate and apart from the fact that Roe was a made-up doctrine, there is also a problem in that the Court didn't approach this constitutional question the same way that it is supposed to address all other constitutional questions.

Under a well-worn line of cases, including a case called United States v. Salerno, the Supreme Court, with only very rare exceptions—not relevant, not present here—does not declare a statute facially unconstitutional unless that statute is alleged and proven to have been unconstitutional in all of its potential applications.

Let's break that down into more common language. You can't just walk into court and say that a particular law is categorically unconstitutional; you have to wait until that law is unconstitutionally applied to you. That is called an as-applied challenge. As-applied challenges are the norm, the rule, and they are the default. In almost all cases, that is how you get something deemed unconstitutional, is through an as-applied challenge; that is, the Court doesn't just strike it down in its entirety.

But it is striking down the law in its entirety that the Court did here—that the Court was asked to do here and that the Court, in fact, did here under circumstances in which the law had not even yet been implemented and had never been enforced—not once. They didn't even wait to see if it could be or would be or might be implemented in a manner consistent with the text and history and structure of the U.S. Constitution. They just walked in and said: The whole thing is unconstitutional. Get rid of it.

Why is that a problem? It does matter. It matters because ours is a system of rules and laws. It is based on the constitutional text. Yes, precedent factors into it, but precedent can't be the inexorable command.

In any event, precedent here went the other way with respect to the standard by which you deem something unconstitutional in all of its applications.

As Justice Gorsuch explained in his separate dissent, “In effect, the standard for facial challenges has been flipped on its head: Rather than requiring that a law be unconstitutional in all of its applications to fall, today's decision requires that Louisiana's law be constitutional in all of its applications [in order] to stand.”

In other words, as Justice Gorsuch explained, they applied a completely different set of rules here. Why? Well, simply because this involves abortion, and abortion is different. Somehow abortion— notwithstanding the fact that it makes no appearance in the Constitution—somehow abortion is treated differently. Now abortion is treated differently even in this separate line of cases, even in this separate line of precedents dealing with facial challenges versus as- applied challenges.

If, in fact, the Supreme Court is going to stick to stare decisis, the principle invoked over and over and over again in that frankly awful decision yesterday, for which the Court should be ashamed, stare decisis is the principle that basically says: We as a court, once we have decided something one way, are going to continue to follow that precedent most of the time unless we really really don't want to.

That is, in essence, what stare decisis means. They invoked stare decisis over and over and over again in that case and said that is just how it had to be because, well, stare decisis requires that.

Well, they didn't follow stare decisis. They didn't follow their own precedent when it comes to their standing docket. They didn't follow their own precedent. They didn't adhere to stare decisis when it comes to United States vs. Salerno. They utterly ignored the fact that this is a case in which the statute invalidated by the Supreme Court of the United States yesterday is capable of being applied in a fully constitutional manner.

By the way, they made a number of assertions about the factual record of the case and about the effect of Louisiana's Act 620 that are simply wrong. They invalidated this law by saying: Look, the Louisiana Legislature claims that this Act 620 was put in place in order to protect women's health. We don't really think that is the case. We don't think they have met that standard here.

First of all, in doing that, they ignored precedent applicable in literally every other scenario in which they defer substantially to the determinations of a legislative body in deciding whether the law that they are passing in fact will have the effect that they want, especially in an area like public health and safety. They ignored the fact that they had abundant testimony before the Louisiana Legislature supporting the basis for what they were doing.

In Justice Gorsuch's dissent, he referred to multiple pieces of information before the legislature. He pointed out that one woman testified that while she was in an abortion clinic after having a procedure and she was hemorrhaging, her abortion provider told her: You are on your own. Get out.

Eventually, the woman went to the hospital, where an emergency room physician removed fetal body parts that the abortion provider had recklessly left in her body.

Another patient who complained of severe pain following her abortion was told simply to go home and lie down.

In another case, a clinic physician allowed a patient to bleed for 3 hours even though a clinic employee testified that the physician would not let her call 911 because of a possible media involvement. In the end, that employee at that clinic called 911 anyway, and emergency room personnel, upon the arrival of that patient, discovered that the patient had a perforated uterus and, as a result, needed a hysterectomy

A different physician, speaking to the Louisiana State Legislature in connection with their deliberations on Act 620, explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In the experience of that physician, “The situation puts a woman's health at an unnecessary unacceptable risk that results from a delay of care and a lack of continuity of care.”

It was on this basis that the Louisiana State Legislature concluded that having admitting privileges would help to contain these risks and help protect women because a physician—the same physician who performed that procedure, if he or she has admitting privileges in a hospital within 30 miles of the abortion clinic in question, would be the physician in the very best position to treat that patient.

So, yes, could reasonable minds reach different conclusions as to the exact set of regulations applicable to an abortion clinic or any other type of healthcare clinic? You bet. There are a lot of ways to get at the same issue. There are a lot of ways to protect human health and safety. It is not the job of the Supreme Court of the United States to decide exactly how those laws are written in Louisiana. And make no mistake—that is what the Supreme Court did here. They might as well have removed their robes and pretended simply to be lawmakers. What they are doing is that blatant, and it is very wrong.

There is, moreover, a connection between this logical disconnect that I refer to and the fact that the standing analysis that I alluded to earlier shows something else that the Supreme Court did wrong. This shows that the very same concerns that the Louisiana Legislature had on behalf of the patients—the would-be victims of medical malpractice at many of these abortion clinics—are concerns that were not present before the Court. They were not represented among the plaintiffs in that case. That is yet another reason why the Supreme Court of the United States acted lawlessly, in a shameful manner, in the June Medical Services case.
These comments were recorded in the Record: Part 1, Part 2.

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