Nos. 18-1323 and 18-1460

In the Supreme Court of the United States
JUNE MEDICAL SERVICES L.L.C., ET AL., PETITIONERS
v.
REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS
REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS, PETITIONER
v.
JUNE MEDICAL SERVICES L.L.C., ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING VACATUR FOR LACK OF THIRD-PARTY
STANDING OR AFFIRMANCE ON THE MERITS

ROBERT P. CHARROW
General Counsel
SEAN KEVENEY
Deputy General Counsel
PAULA STANNARD
Senior Counselor to the
Secretary
Department of Health and
Human Services
Washington, D.C. 20201

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
CHRISTOPHER G. MICHEL
BENJAMIN W. SNYDER
Assistants to the Solicitor
General

Additional Counsel Listed On Inside Cover

 MARK R. FREEMAN
MICHAEL S. RAAB
JOSHUA Y. DOS SANTOS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

1. Whether abortion providers have third-party
standing to invoke the constitutional rights of potential
patients in challenging health and safety regulations as
to which the interests of the patients and providers potentially diverge.
2. Whether the Court can address Louisiana’s objections to third-party standing in this case.
3. Whether it is facially unconstitutional for Louisiana to require abortion providers, like many other providers of outpatient procedures, to hold admitting privileges at a local hospital.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 4
Argument:
I. Abortion providers are not appropriate parties to
represent the interests of women in assessing Act
620 ..................................................................................... 6
A. Litigants can rely on the constitutional rights
of non-parties only in narrow circumstances ......... 6
B. Plaintiffs do not fall within the narrow
circumstances where third-party standing is
appropriate .............................................................. 10
C. This Court can and should reach the thirdparty standing issue ................................................ 13
II. Act 620 is facially constitutional ................................... 17
A. Under this Court’s precedents, a law does not
impose an undue burden unless it creates a
substantial obstacle to a woman’s ability to
obtain an abortion ................................................... 17
B. Plaintiffs failed to show that Act 620 creates a
substantial obstacle to obtaining an abortion....... 22
C. Act 620’s benefits are sufficient to justify its
burdens ..................................................................... 31
Conclusion ................................................................................... 34
TABLE OF AUTHORITIES

Cases:
Adarand Constructors, Inc. v. Pena, 515 U.S. 200
(1995) .................................................................................... 21
American Immigration Lawyers Ass’n v. Reno,
199 F.3d 1352 (D.C. Cir. 2000) ........................................... 15
Arizona v. Gant, 556 U.S. 332 (2009) .................................. 21
(III)

 IV
Cases—Continued:

Page

Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320 (2006).............................................................. 30
Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534 (1986).............................................................. 15
City of Akron v. Akron Ctr. for Reproductive Health,
Inc., 462 U.S. 416 (1983), overruled on other
grounds by Planned Parenthood of Se.
Pennsylvania v. Casey, 505 U.S. 833 (1992) .............. 12, 13
Craig v. Boren, 429 U.S. 190 (1976) ....................... 8, 9, 15, 16
Doe v. Bolton, 410 U.S. 179 (1973) ....................................... 12
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ............................................1, 6, 8, 9, 10, 14
Gonzales v. Carhart, 550 U.S. 124 (2007) ................... passim
Kowalski v. Tesmer, 543 U.S. 125 (2004) ...7, 9, 10, 11, 14, 15
Lewis v. Casey, 518 U.S. 343 (1996) ..................................... 13
Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504 (2001).............................................................. 14
Mazurek v. Armstrong, 520 U.S. 968 (1997)....................... 18
Ohio v. Akron Ctr. for Reprod. Health,
497 U.S. 502 (1990).............................................................. 29
Planned Parenthood of Cent. Missouri v. Danforth,
428 U.S. 52 (1976) ......................................................... 12, 13
Planned Parenthood of Greater Ohio v. Hodges,
917 F.3d 908 (6th Cir. 2019) ................................................. 6
Planned Parenthood of Greater Texas Surgical
Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014) ..... 14
Planned Parenthood of Se. Pennsylvania v. Casey,
505 U.S. 833 (1992)..................................................... passim
Roe v. Wade, 410 U.S. 113 (1973) ......................................... 17
Stenberg v. Carhart, 530 U.S. 914 (2000) ...................... 21, 30
Tileston v. Ullman, 318 U.S. 44 (1943).................................. 6
United States v. Dixon, 509 U.S. 688 (1993) ....................... 21

 V
Cases—Continued:

Page

United States v. Salerno, 481 U.S. 739 (1987) .................... 29
United States v. Williams, 504 U.S. 36 (1992) ................... 13
Warth v. Seldin, 422 U.S. 490 (1975) ........................... 6, 9, 14
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) ................................................ passim
Youakim v. Miller, 425 U.S. 231 (1976) .............................. 14
Constitution and statutes:
U.S. Const.:
Art. III ................................................................ 6, 7, 15, 16
Amend. I ........................................................................... 29
18 U.S.C. 1531 .......................................................................... 2
Unsafe Abortion Protection Act, H.B. 388, 2014
Leg., Reg. Sess. (La. 2014) .................................................. 2
§ 1 ....................................................................................... 2
§ 3 ................................................................................. 2, 31
Miscellaneous:
84 Fed. Reg. 51,732 (Sept. 30, 2019) .................................... 32
7C Charles Alan Wright et al., Federal Practice and
Procedure (3d ed. 2007) ........................................................ 9

 In the Supreme Court of the United States
No. 18-1323
JUNE MEDICAL SERVICES L.L.C., ET AL., PETITIONERS
v.
REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS
No. 18-1460
REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS, PETITIONER
v.
JUNE MEDICAL SERVICES L.L.C., ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING VACATUR FOR LACK OF THIRD-PARTY
STANDING OR AFFIRMANCE ON THE MERITS

INTEREST OF THE UNITED STATES

This case presents important questions about the
scope of third-party standing and the undue-burden
standard for abortion regulation. The United States
has previously participated in cases presenting those issues. See, e.g., Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016); Elk Grove Unified Sch. Dist. v.
(1)

 2
Newdow, 542 U.S. 1 (2004); Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833 (1992). In addition, Congress
has legislated in the field of abortion, see, e.g., 18 U.S.C.
1531, and the government has defended those statutes
against constitutional challenges, see, e.g., Gonzales v.
Carhart, 550 U.S. 124 (2007). The United States accordingly has a substantial interest in this Court’s resolution
of the questions presented.
STATEMENT

1. In 2014, Louisiana enacted the Unsafe Abortion
Protection Act (Act 620 or Act). 18-1323 Pet. App. (Pet.
App.) 145a. As relevant here, the Act requires that physicians who perform abortions within the State must
have “active admitting privileges at a hospital” within
30 miles of “the location at which the abortion is performed or induced.” § 1. The Act also provides that any
invalid applications “shall be severed from the remaining applications,” which “shall remain in force.” § 3.
2. Shortly before Act 620’s admitting-privileges requirement was scheduled to take effect, plaintiffs—an
abortion clinic and two abortion providers—sued to enjoin its operation. Pet. App. 5a. The district court entered a temporary restraining order allowing additional
time for the providers to attempt to obtain privileges.
See ibid. The court subsequently issued a preliminary
injunction, concluding that the admitting-privileges requirement violated “the substantive due process right
of Louisiana women to obtain an abortion.” 158 F. Supp.
3d 473, 482-483. The court of appeals stayed the preliminary injunction pending appeal, concluding that
“[a]t least one of the physicians” has “standing to assert
the rights of [his] prospective patients,” but that plaintiffs were unlikely to succeed on the merits. 814 F.3d
319, 322, 328. This Court vacated the Fifth Circuit’s

 3
stay, 136 S. Ct. 1354, referring to the stay the Court had
entered in Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016), which remained pending at the time.
Once Hellerstedt was decided, the court of appeals remanded this case to the district court. See Pet. App. 6a.
3. The district court declared Act 620’s admittingprivileges requirement facially unconstitutional and entered a permanent injunction against its enforcement.
Pet. App. 132a-279a. The court concluded that “[t]he
medical benefits which would flow from Act 620 are minimal and are outweighed by the burdens.” Id. at 203a.
Specifically, the court determined that three abortion
providers had made what it considered “good faith efforts to comply with Act 620,” and yet had been unable
to obtain qualifying privileges. Id. at 220a. The court
determined that the departure of those providers from
practice would cause another provider to leave practice,
id. at 251a-252a, and that the result would be an undue
burden on abortion in Louisiana, id. at 276a.
4. The court of appeals reversed. Pet. App. 1a-103a.
It held that the district court had misunderstood the
sort of “good-faith effort” an abortion provider could be
expected to exert to comply with the law, id. at 45a-46a,
and concluded that any anticipated reduction in access
to abortion would be attributable to choices by individual providers rather than to the Act itself, id. at 48a-49a
& n.60. The court further concluded that even if Act 620
placed an undue burden on some women’s access to
abortion, it could not be declared facially unconstitutional because it did not do so with respect to a “large
fraction” of women. Id. at 28a (citation omitted). Judge
Higginbotham dissented. Id. at 60a-103a.

 4
5. The court of appeals denied rehearing en banc,
over dissents by Judge Dennis ( joined by Judges Higginbotham, Graves, and Higginson) and Judge Higginson. Pet. App. 105a-131a.
6. This Court stayed the court of appeals’ mandate
pending consideration of a petition for a writ of certiorari. 139 S. Ct. 663. The Court then granted plaintiffs’
petition challenging the decision below and Louisiana’s
cross-petition contending that plaintiffs lack thirdparty standing. 140 S. Ct. 35.
SUMMARY OF ARGUMENT

This Court should vacate the decision below for lack
of third-party standing or affirm it on the merits.
I. A plaintiff generally must assert his own legal
rights and cannot rely on the rights of others. This rule
against third-party standing has sometimes been relaxed in cases where a litigant is directly regulated by
the law that allegedly violates the constitutional rights
of others. But the Court has never applied such relaxed
treatment in the face of a potential conflict between the
interests of the litigant and of the right-holders. Because the challenge here presents a potential conflict
between the interests of the abortion-provider plaintiffs
and those of Louisiana women, plaintiffs should be subject to this Court’s ordinary approach to third-party
standing. Under that approach, plaintiffs are not appropriate parties to assert the rights of Louisiana
women, because the women themselves suffer no hindrance in suing and lack a close relationship to plaintiffs. The Court can decide this case by applying that
rule because the issue was passed upon expressly below,
and even if it had not been, the purposes of the doctrine
—to protect the courts and absent parties—make it

 5
generally appropriate to consider questions about thirdparty standing when raised.
II. If this Court reaches the merits, it should affirm.
Under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), an abortion regulation does not impose an undue burden unless it creates
a “substantial obstacle” to obtaining an abortion. Id. at
877 (plurality opinion). This Court’s decision in Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016),
did not purport to displace that central holding of Casey. The critical inquiry in this case is thus whether
plaintiffs have shown that Act 620 will create a substantial obstacle to obtaining an abortion for all or most
Louisiana women. After a careful review of the record,
the court of appeals correctly held that plaintiffs have
not carried that heavy burden. Plaintiffs respond by
trying to dilute the test, arguing that Hellerstedt replaced Casey’s definition of an undue burden with a
freestanding benefits-burdens balancing test, and effectively invalidated admitting-privileges requirements
nationwide. But Hellerstedt and Casey should be read
to cohere, not to conflict. And if that is not possible,
stare-decisis considerations dictate that Hellerstedt
should be narrowed or overruled to eliminate any conflict with Casey and the rest of this Court’s abortion
precedents.
ARGUMENT
I. ABORTION PROVIDERS ARE NOT APPROPRIATE
PARTIES TO REPRESENT THE INTERESTS OF
WOMEN IN ASSESSING ACT 620

Plaintiffs are abortion providers and an abortion
clinic that wish to perform abortions in Louisiana without complying with Act 620’s admitting-privileges re-

 6
quirement. Medical providers, however, have no fundamental right of their own to perform abortions, let alone
to be free from health and safety regulations when
doing so. See Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 884 (1992) (plurality opinion); accord
Planned Parenthood of Greater Ohio v. Hodges,
917 F.3d 908, 912 (6th Cir. 2019) (en banc) (opinion of
Sutton, J.). Plaintiffs have therefore rested their
claims—and the district court rested its decision—on a
“substantive due process right of Louisiana women to
obtain an abortion.” Pet. App. 143a; see 18-1323 Pet.
Br. (Pet. Br.) 47. But plaintiffs cannot rely on the constitutional rights of others in these circumstances.
A. Litigants Can Rely On The Constitutional Rights Of
Non-Parties Only In Narrow Circumstances

1. A “plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to relief
on the legal rights or interests of [other] parties.”
Warth v. Seldin, 422 U.S. 490, 499 (1975) (citing
Tileston v. Ullman, 318 U.S. 44 (1943) (per curiam)). In
Tileston, for example, a doctor challenged a Connecticut law regulating the use of drugs or instruments to
prevent conception, but this Court held there was “no
basis” for allowing the doctor “standing to secure an adjudication of his patients’ constitutional right[s,] * * *
which they do not assert in their own behalf.” 318 U.S.
at 46.
Although this “general prohibition on a litigant’s
raising another person’s legal rights” is distinct from
Article III’s requirement that the plaintiff suffer a concrete and particularized injury, it serves many of the
same important purposes. Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 12 (2004) (citation omitted). In
general, only the party afforded a given constitutional

 7
right “has the appropriate incentive to challenge (or not
challenge) governmental action” in a way that genuinely
furthers the right-holder’s interests, “and to do so with
the necessary zeal and appropriate presentation.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Moreover, adjudicating rights at the request of third parties could
force courts to consider “questions of wide public significance” in an “abstract” setting removed from the concrete circumstances of the right-holders. Ibid. (citation
omitted).
This Court therefore “ha[s] not looked favorably
upon third-party standing,” but it has recognized a
“limited * * * exception” to the general rule when the
third party can “make two additional showings” beyond
an Article III injury of its own: that it has “a ‘close’
relationship with the person who possesses the right,”
and that “there is a ‘hindrance’ to the possessor’s ability
to protect his own interests.” Kowalski, 543 U.S. at 129130 (citation omitted). Those showings typically are
(and should be) difficult to make; it is not common both
that right-holders are unable to sue and that another
can be trusted to press their interests.
To be sure, enforcement of those requirements has
sometimes been relaxed when the challenged law applies directly to third parties who wish to engage in
transactions with the right-holders. Kowalski, 543 U.S.
at 130. In that circumstance, allowing the third parties
to “act[] as advocates” for the right-holders may be appropriate: the regulated third parties are “obvious
claimant[s]” as they are more directly and materially
harmed than any individual right-holder, and conversely “the threatened imposition of governmental
sanctions might deter” the third parties from transact-

 8
ing with the right-holders at all, which could “ ‘result indirectly in the violation’ ” of the right in question. Craig
v. Boren, 429 U.S. 190, 195-197 (1976) (citation omitted).
Critically, however, the Court has never relaxed enforcement of the ordinary third-party-standing requirements where the regulated third party’s interests potentially diverge from the interests of the right-holders.
To the contrary, where the interests may not truly be
“parallel,” the Court has held that the fact that their interests are “potentially in conflict” is a reason for denying third-party standing. Newdow, 542 U.S. at 15. Indeed, in Newdow this Court found the potential conflict
of interest between a noncustodial parent and his minor
child made it inappropriate to allow the father to assert
the constitutional rights of his daughter—even though
the parent-child relationship is much closer than other
relationships this Court has treated as “close” for purposes of third-party standing. Ibid.
2. Plaintiffs and their amici argue that the conflictof-interest issue should not be considered in the thirdparty standing inquiry, because doing so would collapse
into a merits inquiry of whether Act 620’s burdens on
abortion providers ultimately benefit women. See 181460 Br. in Opp. (Opp.) 25; Federal Courts Scholars
Amici Br. (Scholars Br.) 3. But the question for standing purposes is not whether there is an actual conflict
of interest. Rather, the question is whether there is a
potential conflict. Newdow, 542 U.S. at 15. If there is,
courts should apply the closeness and hindrance requirements with their ordinary full force. Indeed, if anything, a potential conflict should make courts more
cautious in applying those requirements for at least two
reasons.

 9
First, judicial determinations of the merits in a case
are based in significant measure on the litigants’ presentation. Allowing a litigant with potentially conflicting interests to assert the constitutional rights of an absent party risks skewing the arguments and thereby
causing the court to misevaluate the merits. Cf.
7C Charles Alan Wright et al., Federal Practice and
Procedure § 1909, at 440 (3d ed. 2007) (noting that because parties “tailor their own presentation to the interest that each of them has,” a conflict creates “a risk that
the party will not provide adequate representation of
the interest of the absentee”). Under principles of “judicial self-governance,” Warth, 422 U.S. at 500, courts
should not reach the merits when such potential conflicts exist. And courts cannot simply assume at the outset that the litigant invoking third-party rights is doing
so correctly.
Second, this Court has emphasized that the absent
right-holder may have “incentive[s] to * * * not challenge” the particular “governmental action” at issue,
Kowalski, 543 U.S. at 129 (emphasis added), even if she
might be able to persuade a court that it violates her
rights, see Newdow, 542 U.S. at 15 n.7. When the litigant invoking the right has interests that are “parallel”
to those of the absent right-holder, that possibility is diminished. Id. at 15. Conversely, when the interests are
“potentially in conflict,” ibid., the fact that the third
party “might [be] deter[red]” by the challenged law is
less probative of whether the right-holder herself will
be harmed and whether the third party can be trusted
to act as a faithful “advocate[]” for the right-holder,
Craig, 429 U.S. at 195.

 10
B. Plaintiffs Do Not Fall Within The Narrow Circumstances
Where Third-Party Standing Is Appropriate

1. The interests of abortion providers and the interests of Louisiana women do not run in “parallel” with
respect to Act 620, but instead are “potentially in conflict.” Newdow, 542 U.S. at 15. The Act requires abortion providers to have admitting privileges in part as a
prophylactic measure for the safety of women who obtain abortions. Because the law creates compliance
costs without any personal benefits for abortion providers, such providers have every incentive to see the law
invalidated. For women, however, the calculus is different. The law imposes no direct costs on them, and they
may see its benefits as quite significant (while viewing
any indirect costs as speculative). Because plaintiff
abortion providers have different and potentially conflicting interests, their suit does not provide assurances
that Louisiana women themselves would have chosen to
sue and to frame their suit in the same way if the providers had not sued. Accordingly, the prudential principles of judicial restraint that have long undergirded
the third-party-standing doctrine apply here with undiminished force.
2. Plaintiffs cannot satisfy the ordinary closeness
and hindrance requirements of this Court’s third-party
standing doctrine.
a. Plaintiffs’ interactions with the women to whom
they wish to provide abortions have not created a
“ ‘close’ relationship” that would make them appropriate
legal advocates for those women’s interests. Kowalski,
543 U.S. at 130 (citation omitted). As Louisiana explains (Br. 41-47), the potential conflict between plaintiffs’ interests and those of the women whose rights
they seek to assert precludes a finding of closeness as a

 11
matter of law. That by itself is sufficient to resolve this
case. Indeed, even when the Court has relaxed its application of the third-party-standing doctrine, see Kowalski, 543 U.S. at 130, it has never relaxed the doctrine
so far as to encompass a relationship in which the Court
recognized a potential conflict of interests. The potential conflict here would thus preclude plaintiffs from establishing third-party standing even under a more forgiving application of the closeness requirement.
Beyond the potential conflict, there is also no evidence that plaintiffs have any ongoing interactions with
the women for whom they provide abortions; to the contrary, the evidence indicates that abortion doctors often
see women only once, and that frequently their interactions are quite limited because the women are already
sedated by the time the doctor arrives. See Louisiana
Br. 47-48 (collecting record citations). Moreover, as one
plaintiff put it, many of the women have “their own doctors,” J.A. 448—and it is with those doctors, not the
abortion provider they visit for a single procedure and
may never see again, that any meaningful doctorpatient relationship exists. Plaintiffs are thus akin to the
attorneys in Kowalski who sought (unsuccessfully) to
assert the rights of potential clients with whom they had
no ongoing representative relationship. 543 U.S. at 131.
b. Plaintiffs have likewise failed to show that “there
is a ‘hindrance’ to the” ability of Louisiana women to
challenge Act 620 if they believe that doing so is in their
interests. Kowalski, 543 U.S. at 130 (citation omitted).
Experience in recent decades has shown that women do
not need to rely on their doctors to vindicate their constitutional rights. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2323 n.1 (2016) (Thomas, J.,
dissenting) (collecting cases). And while the window for

 12
an abortion is time-limited, this Court’s cases concerning mootness exceptions and class-action proceedings
confirm women’s ability to seek and obtain effective relief. See Louisiana Br. 37-38.
3. Plaintiffs rely on three cases in which abortion
providers invoked women’s substantive due process
rights to challenge “purported health and safety regulations.” Opp. 21 (citing City of Akron v. Akron Ctr. for
Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron
I), overruled on other grounds by Casey, supra; Planned
Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52
(1976); and Doe v. Bolton, 410 U.S. 179 (1973)). None of
those cases, however, confronted the sort of potential
conflict inherent in the challenge here.
In Doe, any concerns about a potential conflict of interest were eliminated by the fact that the lead plaintiff
was a woman who had been prevented from obtaining
an abortion, suing “on behalf of all others similarly situated.” 410 U.S. at 186. Indeed, the Court noted that
“[i]nasmuch as Doe and her class are recognized, the
question whether the other appellants * * * have
standing is perhaps a matter of no great consequence.”
Id. at 188.
Danforth is likewise inapposite. Plaintiffs note that
the case involved a “ban on a certain method of abortion
that the state asserted was ‘deleterious to maternal
health.’ ” Opp. 21 (citation omitted). But no one suggested a potential conflict, because the law at issue
there did not (as here) require abortion providers to
take steps that could increase the safety of the procedure for a woman who had requested it; instead, the law
prohibited providers from performing that procedure

 13
even when requested by women. The interests of abortion providers and women thus ran more closely in parallel. See Danforth, 428 U.S. at 75-79.
Finally, Akron I did not even address third-party
standing to challenge the health and safety regulation
at issue there. See 462 U.S. at 431-439. Instead, the
Court’s discussion of third-party standing pertained
only to the challenge to a parental-consent requirement,
as to which abortion providers’ interests were largely
parallel with the interests of their “minor patients” who
wished to obtain an abortion without involving their
parents in the decision. Id. at 440 n.30. 1
C. This Court Can And Should Reach The Third-Party
Standing Issue

1. This Court’s “traditional rule” precludes review
“only when ‘the question presented was not pressed
or passed upon below. ’ ” United States v. Williams,
504 U.S. 36, 41 (1992) (emphasis added; citation omitted). The “rule operates (as it is phrased) in the disjunctive, permitting review of an issue not pressed so
long as it has been passed upon.” Ibid. Here, the court
of appeals passed upon the third-party-standing question in addressing the State’s request for a stay of the
preliminary injunction, holding that “the physician
plaintiffs have standing to assert the rights of their prospective patients.” 814 F.3d 319, 322. That interlocutory determination was in no way tentative, and could
not have been revisited at the permanent-injunction
stage in the district court or before the panel because it
Plaintiffs’ amici similarly rely on cases entertaining abortion
providers’ challenges without questioning third-party standing (see
Scholars Br. 14), but this Court has “repeatedly held” that the lurking existence of unaddressed standing defects has “no precedential
effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996).
1

 14
was dictated by binding circuit precedent. Id. at 322323 (citing Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583, 589 (5th Cir.
2014)). This Court can thus address the correctness of
the court of appeals’ holding on third-party standing under its “authority to consider questions determined in
earlier stages of the litigation where certiorari is sought
from the most recent of the judgments of the Court of
Appeals.” Major League Baseball Players Ass’n v.
Garvey, 532 U.S. 504, 508 n.1 (2001) (per curiam).
2. a. In any event, “in exceptional cases,” this Court
can review “questions not pressed or passed upon” in
the federal courts below. Youakim v. Miller, 425 U.S.
231, 234 (1976) (per curiam) (citation omitted). Review
is warranted here because restrictions on third-party
standing are “judicially self-imposed limits on the exercise of federal jurisdiction,” Newdow, 542 U.S. at 11-12
(citation omitted), that are “essentially matters of judicial self-governance,” Warth, 422 U.S. at 500. The very
purpose of limiting third-party standing is to prevent
courts from “ ‘decid[ing] abstract questions of wide public significance’ ” in cases where “ ‘judicial intervention
may be unnecessary’ ”—and to ensure that when courts
do decide such questions, their decisions are based on
“appropriate presentation” of the right-holders’ interests. Kowalski, 543 U.S. at 129 (citation omitted).
Those purposes are squarely implicated here, where
plaintiffs seek to have this Court decide a constitutional
question of broad public significance, without first asking whether Louisiana abortion providers and Louisiana women have the same interests with respect to Act
620.

 15
To be sure, because third-party-standing limits go
beyond Article III’s “constitutional minimum of standing,” Kowalski, 543 U.S. at 129, courts are not obligated
to raise third-party-standing objections themselves.
But neither are they precluded from doing so or considering belatedly raised objections. Third-party-standing
limits exist to protect absent parties and courts, so the
decision whether to invoke them should not rest entirely
within the control of litigants, especially in constitutional cases where the ruling will govern the fundamental rights of other individuals and the authority of the
political branches. Cf. Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541-542 (1986) (“[The] obligation to notice defects in a court of appeals’ subject-matter
jurisdiction assumes a special importance when a constitutional question is presented.”). Accordingly, although a court need not raise third-party standing sua
sponte, it should typically address the issue when raised
by the parties or when the court concludes that raising
the issue on its own would be prudent in light of the important values at stake. Cf. American Immigration
Lawyers Ass’n v. Reno, 199 F.3d 1352, 1357-1358 (D.C.
Cir. 2000) (“[W]e treat prudential standing as akin to
jurisdiction, an issue we may raise on our own, in part
because the doctrine serves the ‘institutional obligations of the federal courts.’ ”) (citation omitted).
b. In arguing otherwise, plaintiffs rely heavily (Opp.
8-12) on Craig, in which the Court held that any objection to third-party standing had been forfeited, 429 U.S.
at 193-194. Craig differs from this case in two important respects, however, and those differences underscore why it would be appropriate and prudent for the
Court to resolve this case by holding that plaintiffs lack
third-party standing.

 16
First, Craig was brought and litigated below by a
man between the ages of 18 and 21 (Craig) who argued
that the statute at issue violated his own equal-protection rights because it prohibited beer vendors from selling low-alcohol beer to men but not women within that
age range. 429 U.S. at 192. Only “after [this Court]
noted probable jurisdiction” did Craig “attain[] the age
of 21,” rendering his personal claim moot and leaving
his co-plaintiff—a beer vendor—as the only remaining
plaintiff with Article III standing. Ibid. Given that a
litigant asserting his own constitutional rights had been
directly involved in creating the record and bringing the
case to this Court for review, the ordinary concerns
about assertion of third-party rights were substantially
diminished. That explains the Court’s observation that
“denial of jus tertii standing * * * [would] serve no
functional purpose.” Id. at 194. Here, by contrast, the
women whose rights are being adjudicated were never
parties to the case with a role in the development of the
record and arguments.
Second, there was no apparent or asserted conflict of
interest in Craig that would have warranted denying
third-party standing absent the forfeiture. Indeed,
counsel for the State expressly disclaimed any challenge to third-party standing. See Tr. of Oral Argument at 41, Craig, supra (No. 75-628); see also Craig,
429 U.S. at 193 (noting the State’s “concession”). And
this Court “independently” held that third-party standing existed. 429 U.S. at 194-197. Here, however, a
third-party standing objection was raised (and granted
as a separate question) at the certiorari stage, meaning
the Court will have the benefit of full briefing and argument on the issue.

 17
II. ACT 620 IS FACIALLY CONSTITUTIONAL

If the Court reaches the merits, it should affirm. Under the framework adopted in Casey and reiterated in
Hellerstedt, an abortion regulation does not impose an
unconstitutional “undue burden” unless it creates a
“substantial obstacle” to a woman’s ability to obtain an
abortion. Hellerstedt, 136 S. Ct. at 2300 (quoting Casey,
505 U.S. at 878 (plurality opinion)). The court of appeals
correctly concluded that, on the evidence presented, Act
620 would not create a substantial obstacle to obtaining
an abortion for a large fraction of Louisiana women
seeking one—let alone all such women—and therefore
is not facially unconstitutional. Plaintiffs fail to refute
that conclusion; indeed, their brief never even mentions
the “substantial obstacle” standard. Plaintiffs instead
overread Hellerstedt, which neither silently upended
existing abortion jurisprudence by abandoning Casey’s
substantial-obstacle requirement, nor invalidated all
admitting-privileges requirements nationwide. But if
Hellerstedt must be read to work such a fundamental
change, it should be narrowed or overruled to conform
with Casey and this Court’s other abortion precedents.
A. Under This Court’s Precedents, A Law Does Not Impose
An Undue Burden Unless It Creates A Substantial
Obstacle To A Woman’s Ability To Obtain An Abortion

1. From the start, this Court’s abortion decisions
have emphasized States’ “legitimate interest in seeing
to it that abortion, like any other medical procedure, is
performed under circumstances that insure maximum
safety for the patient.” Roe v. Wade, 410 U.S. 113, 150
(1973). In Casey, a controlling opinion by three Justices
held that States may regulate abortion before viability,
including through “[r]egulations designed to foster the
health of a woman,” if the regulations do not “impose an

 18
undue burden on the [abortion] right.” 505 U.S. at 878
(plurality opinion). Casey defined an “undue burden” as
“the conclusion that a * * * regulation has the purpose
or effect of placing a substantial obstacle in the path of
a woman seeking an abortion of a nonviable fetus.” Id.
at 877. The plurality accordingly concluded that, because
the informed-consent requirement at issue there “[could
not] be considered a substantial obstacle to obtaining an
abortion, * * * it follows [that] there is no undue burden.” Id. at 883.
Six Justices in Casey opposed the undue-burden
framework. Of particular relevance here, Justice Stevens would have applied a balancing test “[w]eighing
the State’s interest” against “the woman’s liberty interest.” 505 U.S. at 916. But the plurality rejected that
proposal in favor of a threshold substantial-obstacle requirement. Id. at 877. Casey therefore upheld a requirement that a physician, rather than a medical assistant, provide patients with abortion-related information, because it did not “amount * * * to a substantial obstacle,” even though “an objective assessment
might suggest” the assistant could deliver the information equally well. Id. at 884-885.
Following Casey, this Court similarly upheld a law
that only physicians could perform abortions because
there was “insufficient evidence” the law posed a “substantial obstacle,” notwithstanding the argument that
“ ‘all health evidence contradicts the claim that there is
any health basis’ for the law.” Mazurek v. Armstrong,
520 U.S. 968, 972-973 (1997) (per curiam) (citation omitted). A six-Justice majority rejected that “line of argument” as “squarely foreclosed by Casey.” Id. at 973.
2. Although most Justices in Casey disagreed with
the undue-burden standard, they all agreed that it

 19
requires a fact-intensive, record-specific analysis. See
505 U.S. at 887 (plurality opinion); id. at 920 (opinion of
Stevens, J.); id. at 926 (opinion of Blackmun, J.); id. at
990 (opinion of Scalia, J.). This Court’s decision in Hellerstedt applied both Casey’s undue-burden standard
and its fact-intensive, record-specific approach.
Hellerstedt involved two Texas regulations: a requirement, like Act 620, that abortion providers obtain
hospital admitting privileges, and a requirement that
abortion facilities meet the same health standards as
ambulatory surgical centers (ASCs). 136 S. Ct. at 2300.
This Court analyzed whether those requirements “violate the Federal Constitution as interpreted in Casey.”
Ibid. Citing the record at least 17 times, id. at 23102317, the Court held that “[e]ach [requirement] places
a substantial obstacle in the path of women seeking a
previability abortion, each constitutes an undue burden
on abortion access, and each violates the Federal Constitution,” id. at 2300 (citation omitted).
The district court here read Hellerstedt to mean that
a regulation affecting abortion “is constitutional only if
its benefits outweigh its burdens.” Pet. App. 137a.
Plaintiffs similarly contend (Br. 20) that, after Hellerstedt, the “undue burden test requires courts to balance
a woman’s liberty interest in determining whether to
carry her pregnancy to full term against the state’s legitimate regulatory interests.” But those interpretations contradict Hellerstedt itself. Although Hellerstedt
addressed the intended benefits of Texas’s law, see 136
S. Ct. at 2311-2312, it did not abandon Casey’s central
holding that a law imposes an undue burden only if it
creates a substantial obstacle to obtaining an abortion.
To the contrary, Hellerstedt not only said that it was ap-

 20
plying Casey, but repeatedly referred to Casey’s substantial-obstacle requirement, including in its key holdings. Id. at 2300, 2309, 2312, 2316, 2318.
Plaintiffs’ interpretation also conflicts with Casey,
which declined to adopt the balancing approach proposed by Justice Stevens, and upheld the physicianinformation requirement because it did not constitute a
substantial obstacle while expressly disregarding
whether it had an “objective” benefit. 505 U.S. at 885
(plurality opinion); see p. 18, supra. Moreover, plaintiffs’ contention (Br. 20) that “any burden imposed by”
a law that “serves no health or safety benefit * * * is
by definition undue” is irreconcilable with Mazurek’s
holding that a physician-only requirement was valid regardless of whether it had any health benefit. 520 U.S.
at 973. Plaintiffs thus advocate a fundamental transformation of the undue-burden framework, replacing Casey’s threshold requirement of a substantial obstacle
with a pure balancing test. See Pet. Br. 49 (“[T]he plain
meaning of an ‘undue burden’ is a burden that outweighs its benefits.”).
Given that Hellerstedt applied Casey, the decisions
can and should be read to cohere, not conflict.
Casey holds that a substantial obstacle is a necessary
condition for the existence of an undue burden. Nothing
in Hellerstedt is to the contrary. Instead, Hellerstedt
recognizes that if a regulation presents a “substantial
obstacle,” its benefits must be “sufficient to justify the
burdens.” 136 S. Ct. at 2300. As before Hellerstedt,
however, a regulation that does not create a substantial
obstacle does “not impose an undue burden,” without
regard to its asserted benefits (or lack thereof). 139 S. Ct.
663, 663 (Kavanaugh, J., dissenting from grant of application for stay).

 21
Even if that interpretation is not the only available
reading of Hellerstedt, this Court should adopt it over
plaintiffs’ approach, which reads Hellerstedt to silently
overrule Casey’s definition of an undue burden and
thereby jeopardizes numerous abortion regulations upheld in the nearly 30 years since Casey. The “doctrine
of stare decisis” does not “require[] adherence to a
broad reading” of a previous decision when a narrower
reading is consistent with the decision and relevant
precedent. Arizona v. Gant, 556 U.S. 332, 348 (2009)
(emphasis omitted). This Court has previously declined
to interpret prior abortion decisions to have revived an
argument that “Casey put * * * to rest.” Gonzales v.
Carhart, 550 U.S. 124, 154 (2007) (discussing Stenberg
v. Carhart, 530 U.S. 914 (2000)). This Court should similarly decline to read Hellerstedt to conflict with Casey.
If, however, the Court concludes that Hellerstedt
must be read to conflict with Casey, then Hellerstedt
should be narrowed or overruled to eliminate the conflict. Cf. U.S. Br. at 43-44, Gonzales, supra (No. 05-380)
(making the same argument about Stenberg). When a
recent decision contradicts earlier precedents, it “better serves the values of stare decisis” to repudiate the
“recently decided case inconsistent with the decisions
that came before it.” Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 231 (1995) (emphasis omitted); see,
e.g., United States v. Dixon, 509 U.S. 688, 712 (1993)
(overruling a three-year-old precedent that “contradicted an ‘unbroken line of ’ ” prior decisions) (citation
omitted). Here, plaintiffs’ reading of Hellerstedt should
be rejected because it would contradict numerous decisions of this Court upholding abortion regulations under Casey’s framework.

 22
B. Plaintiffs Failed To Show That Act 620 Creates A
Substantial Obstacle To Obtaining An Abortion

A plaintiff asserting a facial challenge to an abortion
regulation faces “a heavy burden.” Gonzales, 550 U.S.
at 167 (citation omitted); see Hellerstedt, 136 S. Ct. at
2309, 2313 (noting challengers’ burden and quoting Casey, 505 U.S. at 877 (plurality opinion)). The plaintiff
must “present evidence” that the regulation—as opposed to other causes—would create a substantial obstacle to obtaining an abortion for at least a “ ‘large fraction’ ” of affected women. Hellerstedt, 136 S. Ct. at 2313,
2320 (citation omitted). In a pre-enforcement facial
challenge like this one, the plaintiff must make that “intensely factual” showing using only “predictions” about
the law’s likely effects. 139 S. Ct. at 664 (Kavanaugh,
J., dissenting from grant of application for stay).
As the court of appeals explained, see Pet. App.
39a-59a, the district court incorrectly held that plaintiffs had met their burden based on two distinct errors.
First, the district court took far too lax an approach to
several providers’ supposedly good-faith efforts to comply with Act 620, thereby attributing potential obstacles
to Act 620 rather than to the providers’ own inaction.
Second, the district court wrongly attributed one abortion provider’s putative decision to quit his practice to
Act 620 rather than to his own personal choices. Id. at
42a-49a. The court of appeals treated those errors as
factual, but they are better understood as applying an
overly lenient legal standard to largely undisputed
facts. Cf. id. at 143a (district court stating that “findings of fact * * * more appropriately considered conclusions of law are to be so deemed”). Under any standard of review, the district court’s errors failed to hold
plaintiffs to their burden to show that Act 620—rather

 23
than separate private decisions—would create a substantial obstacle.
1. When this litigation began, Louisiana had five
abortion clinics staffed by six providers. Pet. App. 156a,
160a-161a. Two clinics later closed for reasons that
plaintiffs do not assert are related to Act 620, and one
provider (Doe 4) retired. Id. at 7a, 146a. That left three
clinics staffed by five providers: Hope in Shreveport,
staffed by Does 1-3; Delta in Baton Rouge, staffed by
Doe 5; and Women’s Health in New Orleans, staffed by
Does 5-6. Id. at 7a-25a, 155a-166a.
It is undisputed that Doe 3 has admitting privileges
at a hospital near Hope, and that Doe 5 obtained privileges near Women’s Health during the litigation. Pet.
App. 241a, 244a. The district court found, and the court
of appeals upheld, that Doe 1 likely cannot obtain admitting privileges near Hope. Id. at 19a-21a, 42a, 220a225a. Doe 1’s exit from practice alone, however, would
not require closure of any clinic and would lead at most
to a modest increase in waiting time (about 54 minutes),
which plaintiffs do not suggest would be a substantial
obstacle to obtaining an abortion. Id. at 52a-53a; see
Casey, 505 U.S. at 886 (concluding that a several-day
delay is not a substantial obstacle).
The parties’ dispute thus centers on whether plaintiffs have met their burden of showing that Act 620 will
create a substantial obstacle to obtaining an abortion
for a large fraction of Louisiana women by (a) causing
Does 2, 5, and 6 to cease practice because they cannot
obtain admitting privileges at hospitals near the clinics
where they lack them, and (b) causing Doe 3 to leave
practice at Hope because he refuses to serve as the only
abortion provider in northern Louisiana. See Pet. App.

 24
42a-49a, 252a-254a. The court of appeals correctly held
that plaintiffs failed to make either showing.
a. The district court concluded that Does 2, 5, and 6
had “attempted in good faith” to obtain admitting privileges at hospitals near the clinics where they now lack
them, but had failed to obtain privileges and would
cease practice if Act 620 takes effect, thereby creating
an obstacle to abortion access. Pet. App. 249a. But as
the court of appeals correctly recognized, the district
court’s approach was not nearly rigorous enough. Because plaintiffs challenging an abortion regulation bear
the “burden to present evidence of causation”—that is,
evidence that the regulation itself, rather than other
causes, had “ ‘the effect’ ” of creating a substantial obstacle to obtaining an abortion—any assertion that
abortion providers are unable to comply with a regulation must be subject to searching review. Hellerstedt,
136 S. Ct. at 2309, 2313 (quoting Casey, 505 U.S. at 877
(plurality opinion)).
Otherwise, abortion providers could effectively veto
disfavored legislation by asserting that compliance is
too difficult or objectionable and threatening to leave
practice if forced to follow the law. But see Gonzales,
550 U.S. at 163 (“Physicians are not entitled to ignore
regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors
unfettered choice in the course of their medical practice,
nor should it elevate their status above other physicians
in the medical community.”); accord id. at 166 (declining
to “strike down legitimate abortion regulations” simply
because “some part of the medical community were disinclined to follow” them). That risk is particularly pronounced in pre-enforcement litigation, when providers
are not faced with the real-world choice between doing

 25
what it takes to comply and abandoning their practices,
and instead have every incentive to overstate the burdens of compliance and the likelihood that they will
leave practice if the law takes effect.
The court of appeals properly applied rigorous review to the abortion providers’ assertions of inability to
comply with Act 620. It was plainly correct, for instance, to reverse the district court’s conclusion that
Doe 5 had made a good-faith effort to obtain privileges
near Delta. Pet. App. 45a-46a. As the court of appeals
explained, Doe 5 successfully obtained privileges at a
hospital near Women’s Health during this litigation,
and, according to Doe 5 himself, a hospital near Delta
“will grant him privileges once he finds a covering doctor.” Id. at 45a. Yet Doe 5 neither made meaningful
attempts to locate such a doctor—an undertaking even
Doe 4 agreed was not “overburdensome”—nor applied
to other nearby hospitals. Id. at 11a.
Under an appropriate standard, those undisputed
facts fail to show that Doe 5 would actually be unable to
practice at Delta for any reasons fairly attributable to
Act 620. See Pet. App. 18a, 45a (explaining that Doe 5
has “contrived a situation in which it is impossible for
him to obtain privileges,” and the “most logical explanation for” his behavior “is that he is awaiting the result
of this litigation”). Indeed, plaintiffs do not even attempt to defend Doe 5’s lack of diligence, but instead
suggest (Br. 42) that he “could never meet” the hospitals’ requirements to obtain admitting privileges. That
assertion, however, contradicts Doe 5 himself, who “explained that Woman’s Hospital cannot deny him privileges once he” finds a covering doctor. Pet. App. 17a.
The court of appeals was also correct in rejecting as
inadequate Doe 6’s decision to apply to only one of nine

 26
hospitals near Women’s Health. Pet. App. 46a. Common sense dictates that a provider who actually wanted
to obtain privileges would apply to more than one out of
nine hospitals, especially when the other doctor at
Women’s Health (Doe 5) had already obtained privileges at one of the eight hospitals to which Doe 6 did not
apply. See ibid. The same is true for Doe 2, who failed
to apply to a hospital near Hope where he previously
held privileges and another Hope physician (Doe 3) currently holds privileges. Id. at 43a. This Court has refused to “strike down legitimate abortion regulations”
where reasonable alternatives would allow women to
obtain abortions without confronting a substantial obstacle. Gonzales, 550 U.S. at 166; see id. at 163-164.
The court of appeals correctly held that, by failing to
diligently pursue such alternatives, Does 2, 5, and 6
themselves are responsible for any resulting obstacles
to a woman’s ability to obtain an abortion. Pet. App.
49a.
b. The district court likewise erred in attributing to
Act 620 Doe 3’s assertion that he would quit practicing
if he is the only remaining abortion provider in northern
Louisiana. Pet. App. 251a-252a. The Court need not
reach this error if it agrees with the court of appeals
that Doe 2’s potential departure from Hope cannot
properly be attributed to Act 620, see id. at 42a-43a, because then Act 620 would not be responsible for rendering Doe 3 the only provider in northern Louisiana. Regardless, the court of appeals was correct that Doe 3’s
“personal choice to stop practicing” if he becomes the
only abortion provider in “northern Louisiana” cannot
be “legally attributed to Act 620.” Id. at 48a. Although
Doe 3 purportedly based his choice on an increased risk
of violence, he offered no evidence that he would face

 27
such an increased risk if he were the only provider in
“northern Louisiana.” Ibid. Indeed, his own account of
the purported risks shifted during the litigation, as he
initially professed to be at risk only if he were the last
remaining provider in all of Louisiana, then changed position after Doe 5 obtained privileges in New Orleans.
Id. at 47a. Doe 3’s self-imposed limitation should be attributed to Doe 3 himself (or, at most, to outside factors
separate from Act 620), not to Louisiana.
Relatedly, the district court failed to make more than
a cursory inquiry into whether clinics could recruit new
abortion providers who could comply with Act 620. See
Pet. App. 258a-259a. The record here shows that the
abortion-provider market is fluid, with two clinics closing for reasons unrelated to the Act and new providers
recently arriving. See id. at 146a; Louisiana Br. 20.
Given those changes, it is not at all evident why, if plaintiffs are correct about the demand for abortions in Louisiana, additional new providers cannot be found. The
arrival of other providers could mean that Doe 3 will not
be the only provider in northern Louisiana, and could
also allow clinics to compensate if any of Does 2, 5, or 6
is actually unable to obtain admitting privileges near a
clinic where he currently lacks them. The fact that Louisiana abortion providers were able to compensate for
the recent closing of two clinics and the retirement of
Doe 4 for reasons unrelated to Act 620 certainly suggests that such adaptation is possible.
c. Plaintiffs respond that Hellerstedt makes the district court’s errors irrelevant. In their view (Br. 17),
Hellerstedt requires invalidating Act 620 because this
“Court gave no indication that the result” of a challenge
to a similar admitting-privileges requirement “would be

 28
different in other jurisdictions.” Under that view, Hellerstedt resolved the constitutionality of all admittingprivileges requirements in all States for all time, such
that no need exists to analyze the record in this or any
other case. Indeed, plaintiffs’ logic suggests that an
admitting-privileges requirement would be invalid even
if every abortion provider in the State could readily obtain privileges. That cannot be correct.
Plaintiffs’ sweeping reading contradicts Hellerstedt
itself. As noted above, Hellerstedt focused intensely on
the facts and record before it. See p. 19, supra. Plaintiffs observe (Br. 17, 24-25) that the Court cited extrarecord amicus briefs for some general propositions, but
the Court nevertheless repeatedly “return[ed]” to the
record in formulating its holding, including its key conclusion that “the record evidence indicates that the
[Texas] admitting-privileges requirement places a
‘substantial obstacle in the path of a woman’s choice.’ ”
136 S. Ct. at 2312 (citation omitted). The Court emphasized, moreover, that even with respect to the Texas
law, a “statute valid as to one set of facts may be invalid
as to another.” Id. at 2306 (citation omitted). Nothing
in the Court’s decision suggests that in a future case
with a different record showing different potential effects, the result must be the same.
Plaintiffs also observe (Br. 39) that Hellerstedt “did
not require proof of each individual abortion provider’s
efforts to obtain privileges.” But Texas did not introduce such evidence, so the Court had no reason to address the issue. The Court instead found that the Texas
abortion providers had “satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from
the timing of the clinic closures,” and the Texas district

 29
court had permissibly “credited that evidence and concluded from it that” the Texas law—rather than any other
cause, such as provider inaction or self-obstruction—“in
fact led to the clinic closures.” Hellerstedt, 136 S. Ct. at
2313. The Court added that, if Texas had introduced
evidence that “might have shown that some clinics
closed for unrelated reasons,” that evidence could have
been considered. Ibid. Here, the court of appeals
properly relied on such evidence to conclude that Act
620 would not create a substantial obstacle to obtaining
an abortion for any Louisiana women, let alone the large
fraction required to sustain a facial challenge under the
standard most favorable to plaintiffs. Pet. App. 53a.
2. Alternatively, this Court could affirm on the
ground that Act 620 is not facially invalid under the
rule—generally applicable outside the First Amendment context—that a statute is facially unconstitutional
only if “no set of circumstances exists under which the
Act would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987).
a. The standard governing a facial challenge “in the
specific context of abortion statutes has been a subject
of some question.” Gonzales, 550 U.S. at 167. In Ohio
v. Akron Center for Reproductive Health, 497 U.S. 502
(1990) (Akron II), the Court applied the Salerno standard and held that plaintiffs “making a facial challenge
to a statute” regulating abortion “must show that ‘no set
of circumstances exists under which the Act would be
valid.’ ” Id. at 514 (citation omitted). In Casey’s discussion facially invalidating a spousal-notification provision, however, the Court stated that, “in a large fraction
of the cases in which [the provision] is relevant, it will
operate as a substantial obstacle to a woman’s choice to
undergo an abortion.” 505 U.S. at 895. Yet Casey did

 30
not apply the large-fraction formulation to any other
provision at issue there, nor did the Court use the formulation in striking down a state partial-birth abortion
ban in Stenberg, see 530 U.S. at 1019 (Thomas, J., dissenting), and the Court expressly reserved the question
in Gonzales, 550 U.S. at 167. Hellerstedt briefly invoked
the large-fraction formulation, but only while noting
that “Texas reads Casey to have required” that approach. 136 S. Ct. at 2320. The proper standard thus
remains an “open question.” Id. at 2343 n.11 (Alito, J.,
dissenting).
As the United States explained in its amicus brief in
Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006), the Salerno standard for facial invalidity should apply in the abortion context. U.S.
Amicus Br. at 9-18, Ayotte, supra (No. 04-1144). No
sound basis exists to carve out an abortion exception to
that general rule, which provides a readily administrable standard that preserves proper respect for federalism and the separation of powers. See Ayotte, 546 U.S.
at 329. Nor is there any basis in precedent to employ
Casey’s large-fraction formulation, as Casey did not expressly depart from Salerno or Akron II, and this Court
has never issued a holding to the contrary. Finally, as
a practical matter, the large-fraction formulation has
little to recommend it, as indicated by confusion about
what the numerator and denominator in the fraction are
even supposed to be. Pet. App. 53a-59a; see Hellerstedt,
136 S. Ct. at 2343 n.11 (Alito, J., dissenting).
b. Under Salerno, plaintiffs’ facial challenge fails
because Act 620 is constitutional in numerous applications. Even if the Court were not to agree with all of
the government’s arguments regarding individual abortion providers, the Court should hold that at least some

 31
of the district court’s conclusions were incorrect; that
plaintiffs have failed to establish the unconstitutionality
of those applications; and that the Act is therefore not
facially invalid. The Court could thus resolve this case
while leaving Act 620 “open to a proper as-applied challenge in a discrete case.” Gonzales, 550 U.S. at 168.
And unless Act 620 is invalid in all its applications, facial
invalidation would be particularly inappropriate here
because Act 620 expressly directs severance of any statutory “application * * * found to impose an impermissible undue burden.” § 3. Although Hellerstedt declined to enforce the severability clause at issue there,
136 S. Ct. at 2318-2320, much of its analysis focused on
the difficulties of parsing through the detailed requirements of Texas’s ASC provision. No such complexity
exists here.
C. Act 620’s Benefits Are Sufficient To Justify Its Burdens

Because Act 620 does not create a substantial obstacle to obtaining an abortion, the Court need not review
its benefits. See pp. 17-21, supra. But if the Court were
to do so, it should conclude the Act’s benefits are more
than sufficient to justify the burdens that it imposes on
women seeking abortions in Louisiana.
1. Act 620 provides at least three meaningful benefits. First, as the district court recognized, the Act’s
purpose is “to improve the health and safety of women
undergoing an abortion” by ensuring that their provider can qualify for hospital-admitting privileges. Pet.
App. 202a. Even if there is “a dispute medically and scientifically as to whether” such a requirement “serves a
legitimate medical need and is medically reasonable,”
id. at 203a, this Court has held that legislatures should
have “wide discretion” to resolve such uncertainty,
Gonzales, 550 U.S. at 163.

 32
Plaintiffs observe (Br. 26-28) that some of Act 620’s
health and safety benefits are parallel to those rejected
in Hellerstedt. But others are distinct. Of particular
relevance, Louisiana—unlike Texas—provided “testimony from abortion providers themselves, explaining
that the hospitals perform more rigorous and intense
background checks than do the clinics.” Pet. App. 35a.
Plaintiffs respond (Br. 29) that the state medical board
will ensure physician competency. But nothing requires
the state legislature to rely on the medical board alone.
See Gonzales, 550 U.S. at 166 (“Considerations of marginal safety, including the balance of risks, are within
the legislative competence when the regulation is rational and in pursuit of legitimate ends.”). And there is
no dispute that “competency is a factor,” even if not the
only one, in assessing applicants for admitting privileges in Louisiana. Pet. App. 171a. Thus, even if Texas’s
admitting-privileges requirement did “not serve any
relevant credentialing function,” Hellerstedt, 136 S. Ct.
at 2313, Louisiana’s does. 2
Second, Act 620 provides an independent benefit not
addressed in Hellerstedt: conforming the State’s admitting-privileges requirements for abortion providers
with those for other providers of outpatient surgery.
Pet. App. 36a-37a. The law should not “elevate the[]
The Department of Health and Human Services (HHS) recently
noted that admitting privileges are generally not necessary for
“maintaining minimum standards for patient safety and care” at
ASCs, and removed the requirement that physicians at Medicareparticipating ASCs maintain such privileges. 84 Fed. Reg. 51,732,
51,790 (Sept. 30, 2019); see, e.g., 42 C.F.R. 4165.40. HHS thus recognized that admitting-privileges requirements set a floor, not a
ceiling, on the standard of care. That recognition does not undermine Louisiana’s conclusion that the admitting-privileges requirement at issue here produces a medical benefit.
2

 33
status” of abortion providers “above other physicians in
the medical community,” Gonzales, 550 U.S. at 163, and
Act 620 advances that interest in evenhanded regulation
by closing the regulatory gap that previously required
physicians at ASCs—but not at abortion facilities—to
obtain admitting privileges. See Louisiana Br. 7; Pet.
App. 36a-37a, 199a.
Plaintiffs observe (Br. 35-36) that Louisiana has not
achieved total conformance between abortion providers
and all outpatient-surgery providers, because some outpatient procedures governed by a different provision of
the Louisiana regulatory code are not subject to an
admitting-privileges requirement. But perfect tailoring
is not the standard. As the court of appeals explained,
Act 620 achieves a benefit by bringing admittingprivileges requirements for abortion providers into line
with those for ASCs, even if it stops short of doing so
for all outpatient surgeries. Pet. App. 36a.
Third, Act 620 addresses “the effects on the medical
community and on its reputation” caused by insufficient
regulation of abortion practices. Gonzales, 550 U.S. at
157. Given the profound ethical concerns presented by
atrocities at abortion clinics like those run by Kermit
Gosnell, see Hellerstedt, 136 S. Ct. at 2313, Louisiana
has a strong interest in assuring the public that abortion providers are subject to adequate health and safety
regulation, see Gonzales, 550 U.S. at 157. Act 620 advances that objective, which Hellerstedt did not consider.
2. In light of the foregoing, Act 620 should be upheld
even if the Court were to adopt the pure balancing approach advocated by plaintiffs. The burdens of Act 620
are minimal—principally, a modest increase in the waiting time (less than an hour) to obtain an abortion. The

 34
benefits described above are more than sufficient to justify that burden.
CONCLUSION

This Court should remand with instructions for the
case to be dismissed for lack of third-party standing.
Alternatively, the judgment of the court of appeals
should be affirmed.
Respectfully submitted.

ROBERT P. CHARROW
General Counsel
SEAN KEVENEY
Deputy General Counsel
PAULA STANNARD
Senior Counselor to the
Secretary
Department of Health and
Human Services

JANUARY 2020

NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
CHRISTOPHER G. MICHEL
BENJAMIN W. SNYDER
Assistants to the Solicitor
General
MARK R. FREEMAN
MICHAEL S. RAAB
JOSHUA Y. DOS SANTOS
Attorneys