Standing In Abortion Law: Who Can Take Action?

The issue of who has standing in abortion law is a highly contested topic, with the U.S. Supreme Court's overturning of Roe v. Wade in June 2022 giving individual states the power to restrict or prohibit abortion. This has resulted in a state-by-state battle for abortion rights, with 14 states currently enforcing near-total abortion bans and four states banning abortion after six weeks of pregnancy. The debate centres around the concept of standing, a judicially-created doctrine that determines who can bring a case to federal court. While typically, a party must assert their own rights, the Supreme Court has created exceptions for litigants to represent third parties when certain conditions are met. This has significant implications for reproductive rights and the ability to challenge abortion restrictions.

Third-party standing and abortion providers

Third-party standing is a long-held judicially-created doctrine that establishes the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts their own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a "close relation" to the third party, and there are obstacles to the third party's ability to protect their interests.

In June Medical Services, heard by the Supreme Court on June 29, 2020, the court considered the Unsafe Abortion Protection Act, a Targeted Regulation of Abortion Providers (TRAP) law. This law requires abortion providers in Louisiana to have admitting privileges at a hospital within thirty miles of where the providers perform abortions. In addition to the admitting privileges issue, Louisiana challenged the entitlement of the plaintiff-providers to third-party standing in bringing suit, arguing that abortion providers do not meet the requirements of third-party standing.

Louisiana's arguments pose a grave danger to reproductive rights across the country, as the abolishment of third-party standing for abortion providers would severely restrict the number of cases brought forth challenging abortion restrictions. Louisiana's arguments ignore a long line of precedent that recognizes third-party standing of abortion providers challenging health and safety regulations, as well as the well-documented dangers of TRAP laws to women's health. In addition, Louisiana's rationale rests on inaccurate assumptions about the dynamic between abortion providers and their patients and disregards the very real and dangerous hindrance faced by women seeking to file lawsuits on their own behalf in cases involving abortion restrictions.

The Supreme Court first allowed an abortion provider to assert legal rights based on third-party standing in Singleton v. Wulff (1976), holding that there must be an obstacle preventing the third party from bringing her own action and a close relationship between the person bringing suit and the third party with the underlying right. Following that ruling, challenges to abortion regulations have been brought more often by clinics and doctors than by the women whom those regulations purportedly burden.

While third-party standing has been permitted for abortion providers, some scholars and Supreme Court justices have recently argued that clinics should not qualify for third-party standing. If a majority of the Court adopts this position, lawsuits challenging abortion restrictions will need to include an individual plaintiff with standing to challenge the law. This attack on standing chips away at Roe v. Wade by making it harder to challenge state statutes restricting abortion access.

State-level abortion laws

The Impact of Roe v. Wade Overturn

The overturn of Roe v. Wade has had a profound impact on state-level abortion laws. Previously, most states had repealed abortion bans that were in effect before 1973, when Roe v. Wade established abortion as a federal constitutional right. However, some states never repealed their pre-Roe abortion bans, and now have the option to revive these prohibitions.

Current Landscape of State-Level Abortion Laws

As of 2024, abortion is illegal in 13 states, while 21 states and the District of Columbia have laws protecting the right to abortion. The remaining states fall into varying categories of abortion access and restrictions. Some states are considered "Expanded Access," meaning they have additional laws and policies that enhance access to abortion care. In contrast, "Not Protected" states have no legal protection for abortion, and "Hostile" states have expressed a desire to prohibit abortion entirely.

Types of Abortion Restrictions

Targeted Regulation of Abortion Providers (TRAP) laws impose burdensome requirements on physicians providing abortion care. Parental involvement laws mandate that parents or legal guardians of young people seeking abortions are notified or provide consent. Some states also require biased counseling or ultrasounds before receiving abortion care, serving as deterrents to those seeking abortions.

Abortion Protections and Exceptions

Certain states have enacted statutory protections for abortion, passing laws that safeguard the right to abortion. State constitutional protection affirms that the state constitution protects the right to abortion, separate from any federal constitutional right. Additionally, states may require public funding for abortion care in cases of life endangerment, rape, or incest. Private insurance plans regulated by the state may also be mandated to include abortion coverage.

Challenges and Implications

The varying state-level abortion laws have resulted in a divide between "abortion deserts," where abortion is illegal and inaccessible, and "abortion havens," where care is still available. This disparity has significant implications for individuals seeking abortions, particularly in states with restrictive laws. The enforcement of abortion bans and the inclusion of exceptions, such as in cases of rape, have also raised complex issues regarding reporting requirements, patient privacy, and the role of law enforcement.

Federal abortion bans

The Hyde Amendment

The Hyde Amendment is a federal-level restriction that limits abortion access across the US. It withholds federal Medicaid funding for abortions, except in very limited circumstances. This restriction disproportionately affects people with low incomes, as it interferes with their insurance coverage for safe and legal abortions. The Hyde Amendment has been in place since 1976 and is renewed annually by Congress.

Federal Abortion Ban of 2007

On April 18, 2007, the US Supreme Court upheld the first-ever federal law banning specific abortion procedures. This ban criminalized abortions in the second trimester of pregnancy, even in cases where medical professionals deemed them the safest option to protect the pregnant person's health. The Supreme Court's decision went against over 30 years of precedent that prioritised patients' health in abortion-related laws.

20-Week Abortion Bans

There have been attempts at the federal level to impose a 20-week ban on abortions. While most abortions in the US occur during the first trimester, advocates for reproductive rights argue that it is crucial for patients and doctors to have every medical option available. A 20-week ban would remove decision-making power from patients and their doctors in situations where ending a pregnancy may be necessary for serious medical reasons.

Impact of Federal Abortion Bans

Standing in Abortion Law

Standing is a judicial doctrine that determines who has the right to bring a case before a federal court. Generally, a party must assert their own rights to have standing. However, the Supreme Court has created exceptions, allowing litigants to sue on behalf of third parties if they meet specific criteria. In the context of abortion law, abortion providers have been granted third-party standing to challenge health and safety regulations that affect their patients' access to reproductive rights and safe healthcare.

Gestational limits

The World Health Organization (WHO) emphasizes that efforts to impose gestational limits on abortion may negatively impact women whose pregnancies have exceeded these limits. It may force them to seek unsafe alternatives or self-induce abortions, leading to adverse health consequences. The WHO recommends that gestational limits should be evidence-based and not arbitrarily restricted.

In the United States, abortion laws vary across states. Some states have gestational limits, while others do not. As of April 2024, the United States is one of eight countries that allow abortion on demand without any gestational limits at the federal level, along with Australia, Canada, China, Guinea-Bissau, Mexico, South Korea, and Vietnam. However, it is important to note that individual states within the US may have their own gestational limits, and abortion policies can change over time.

The United States is one of only 15 countries in the United Nations that permit abortion on demand past 15 weeks of gestation. This means that its abortion law is more permissive than most countries worldwide. In contrast, 46 out of 50 European UN member countries restrict abortion on demand after 15 weeks.

To summarize, gestational limits on abortion vary globally and are influenced by the legal framework and circumstances of each country or state. The most common limit is 12 weeks, but restrictive abortion laws may not specify a limit. The US is one of the few countries without gestational limits at the federal level, but individual states may have their own restrictions.

Medication abortion

In 2023, 63% of abortions in the US were medication abortions. The medication abortion drug regimen approved by the FDA is available in many states across the nation, however, dispensing these pills for the purpose of terminating a pregnancy is now banned in some states.

The most common medication abortion regimen in the United States involves the use of both mifepristone and misoprostol. Mifepristone, also known as the abortion pill or RU-486, works by blocking progesterone, a hormone essential to the development of a pregnancy, and thereby preventing an existing pregnancy from progressing. Misoprostol, taken 24–48 hours after mifepristone, works to empty the uterus by causing cramping and bleeding, similar to an early miscarriage. A follow-up visit can be scheduled a week or two later to confirm that the pregnancy was terminated via ultrasound or blood test.

There is a second medication abortion protocol using misoprostol alone that is more commonly used internationally and is currently not approved by the FDA. This regimen is recommended for up to 70 days (10 weeks) of pregnancy and involves taking 800 mcg (4 pills) of misoprostol sublingually or vaginally every three hours for a total of 12 pills. Research has shown the misoprostol-only regimen to be a safe and highly effective method of pregnancy termination, however, it may result in a higher incidence of side effects, particularly diarrhea, fever, and chills.

In the wake of Dobbs v. Jackson Women's Health Organization, the US Supreme Court decision in June 2022 that overturned the federal constitutional right to abortion, states across the country have banned the procedure. Near-total or early gestational age bans in those states have restricted both procedural and medication abortion.

In January 2023, the FDA lifted restrictions that prevented patients from obtaining medication abortion pills from a retail pharmacy. Pharmacies must complete a certification form from the manufacturer to dispense the pills. Individuals cannot obtain the medication at a pharmacy in states that have a near-total abortion ban.

Many of the states that allow abortion have imposed unnecessary restrictions on medication abortion that only serve to increase barriers to care; almost half of those states limit its provision solely to physicians. This policy contradicts findings from the World Health Organization and other health and medical organizations that advanced practice clinicians, such as physician assistants and advanced practice nurses, can safely provide medication abortion.

Some states require a physician to be in the same room as the patient when administering the medications, effectively prohibiting telemedicine provision of medication abortion despite clinical evidence that this practice is appropriate and safe. Other ways to limit access to medication abortion are requiring that the provider observe the patient taking the first dose and prohibiting a provider from mailing the medications to a patient. Allowing use of telehealth would expand access to medication abortion, particularly for patients in rural areas and in areas with few abortion providers.

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