The Volokh Conspiracy
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Unikowsky on Judge Kacsmaryk's Mifepristone Decision
Worth a read.
Adam Unikowsky is a biglaw partner, and a former law clerk to Justice Scalia, who has an active Supreme Court practice. In his free time, he has started up an excellent Substack on legal issues (mentioned here before by Jonathan Adler). I've enjoyed each post; they each combine serious legal analysis with really strong writing. Unikowsky's latest is a takedown of Judge Kacsmaryk's Mifepristone decision. Unikowsky's overview: "The decision is indefensible. In this post, I will walk through the decision and explain just how bad it is."
The post is thorough and quite a read, going through what Unikowsky presents as error after error after error after error. Here's just a taste:
The court then claims that "Plaintiff medical associations have associational standing via their members' third-party standing to sue on behalf of their patients." (p. 9). This section reveals that the court does not understand what "third-party standing" means.
"Third-party standing" is something that plaintiffs sometimes have to show in addition to—not instead of—Article III standing. Plaintiffs always, 100% of the time, have to show what the Supreme Court has called the "irreducible constitutional minimum" of standing under Article III—(1) a concrete and particularized injury, that is (2) caused by the defendant's action, and (3) redressable by the requested relief. In some cases, a plaintiff that has standing asserts that some action harming them is illegal because it violates someone else's rights—in which case they bear the additional burden of showing they are entitled to assert the rights of that third party, i.e., third party standing.
Lawsuits by abortion providers challenging abortion restrictions are a classic illustration of the third-party standing doctrine in action. In most cases, especially pre-Dobbs, abortion restrictions target abortion providers rather than women seeking abortions: if a provider performs an abortion in violation of state law, the provider is punished. Abortion providers who sue states seeking to enjoin abortion restrictions have obvious Article III standing. They face a concrete and particularized injury (the state if going to shut them down and incarcerate their doctors if they perform illegal abortions); it's caused by the state, which enforces the law; and an order enjoining the state from enforcing the law would redress the injury.
In challenging those laws pre-Dobbs, the providers would claim that the laws are unconstitutional because they violate their patients' constitutional right to an abortion. Thus, although the providers were the direct targets of the law, the providers' legal theory was that the laws were unconstitutional because they violated the constitutional rights of third parties—i.e., their patients. In this context, courts would consider whether the providers were permitted to assert the legal interests of their patients under a doctrine known as "third-party standing," or whether instead the plaintiffs had to be women seeking abortions. So, for plaintiffs who already had Article III standing, courts would consider whether the plaintiffs also had third-party standing.
The district judge doesn't understand this. He says: "The injuries suffered by patients of the Plaintiff medical associations' members are sufficient to confer associational standing" (p. 10). In other words, he thinks that if hypothetical patients have Article III standing, this means that the doctor-members of the plaintiff organizations can also assert "third-party standing" without a showing that the doctor-members themselves were injured. Standing does not work this way, this is completely wrong.
Even if standing did work this way, the court's application of the doctrine would still be wrong…..
You can read and sign up for Unikowsky's Substack free here.
