Had Bindeman been living in another state — like Texas, Oklahoma, Mississippi, Missouri, or Alabama, among others — not only would she have had to deal with the emotional and physical pain of losing a wanted pregnancy, but she would also have been forced to navigate a hostile legal landscape rife with the kinds of abortion restrictions that have proliferated across a large swath of the country, including arbitrary waiting periods, coercive counseling requirements, and, importantly, gestational abortion bans at 20 weeks — or even earlier.

And, if the state of Louisiana gets its way in a lawsuit currently pending before the U.S. Supreme Court, women in Bindeman’s position living in hostile states could have an extra burden to carry: In order to get access to the abortion services they need, they may personally have to challenge those restrictions in court.

Louisiana’s suit, which the court will consider during oral arguments on March 4, threatens not only to undo decades of precedent allowing abortion providers to mount legal challenges on behalf of their prospective patients, but also dismantle a century of precedent in other kinds of cases in which plaintiffs similarly seek to vindicate the rights of third parties.

It is the latest salvo in the ongoing effort of anti-abortion lawmakers to erode reproductive rights. Without ever ruling on the constitutionality of any particular abortion restriction, the Supreme Court, by ruling in favor of Louisiana, could make it practically impossible to challenge states’ increasingly draconian and punitive restrictions on abortion and ultimately eviscerate reproductive autonomy.

To Bindeman, the notion that she would have been able to navigate the legal system in order to gain her right to an abortion while simultaneously dealing with her medical circumstances is absurd. “I didn’t have the emotional or cognitive wherewithal; I was grieving,” Bindeman said. “It would have been too much to try to bring the challenge myself.”

Double Trouble in Louisiana

When the Supreme Court convenes on March 4, it will actually be considering two abortion-related challenges arising out of Louisiana. The first, known as June Medical Services LLC et al. v. Gee, is the kind of case that has become all too familiar. The Center for Reproductive Rights is representing a handful of Louisiana providers on behalf of themselves and their patients challenging a 2014 state law that requires all abortion doctors to have hospital-admitting privileges within 30 miles of clinics where they provide services. Abortion is a supremely safe procedure and rarely produces the kind of medical complications that necessitate a hospital stay, which is in part why it is so difficult for abortion doctors to obtain hospital privileges unless they have a broader area of practice. Only one Louisiana abortion provider has admitting privileges.

The Louisiana law is identical to one passed the previous year in Texas that was partly responsible for the closure of half the state’s abortion clinics — a consequence that Louisiana lawmakers clearly understood. In an email to the Louisiana bill’s sponsor, an anti-abortion activist noted that Texas’s admitting privileges law had “tremendous success” in closing clinics and restricting access to health care.

In upholding abortion rights, the Supreme Court has allowed leeway for states to pass laws that serve to restrict access in various ways, including when a restriction has some legitimate health benefit for women. After the Center for Reproductive Rights sued Texas on behalf of providers and patients, the state argued that the admitting privileges were necessary to protect women and provide continuity of care in the event that something should go wrong — among the same arguments Louisiana subsequently made in defending its law.

The federal district court in Texas disagreed with the state, finding that there was no health benefit and the law placed an undue burden on women seeking abortion. The U.S. 5th Circuit Court of Appeals disagreed, teeing up the case before the Supreme Court. In 2016, the court reversed the 5th Circuit, deciding in a landmark 5-4 opinion in Whole Woman’s Health v. Hellerstedt that the law was unconstitutional.

Following that opinion, the district court in Louisiana made similar findings in striking down the state’s admitting privileges law. And despite the Supreme Court’s clear mandate in Whole Woman’s Health, the 5th Circuit again disagreed with the lower court and upheld Louisiana’s law — thus pitching to the Supreme Court the exact question it had resolved a few years earlier.

In the interim, just one thing has changed: There are two new white male judges on the Supreme Court to solidify a conservative majority. The fact that the court is now potentially reconsidering Whole Woman’s Health makes many people nervous that it may take the opportunity to do additional damage, including by revisiting Roe v. Wade, as a contingent of more than 200 conservative members of Congress has encouraged.

But without saying much at all on the issue of admitting privileges or the underlying right to abortion, the court could nonetheless do devastating and lasting damage to reproductive rights in the way that it decides the second Louisiana case: a counter-petition filed by the state, Gee v. June Medical Services LLC et al., which attacks a longstanding legal doctrine that allows plaintiffs to assert the rights of a third party that would otherwise face an impediment to vindicating their own rights.

In abortion-related litigation, this has been accepted practice for nearly 50 years, since individual women, such as Julie Bindeman, have a right to access abortion but lack a meaningful ability to assert that right in court — or a means to have that right upheld in a timely way. The Louisiana admitting privileges lawsuit, for example, has been pending for more than five years.

In order to assert the rights of others, a plaintiff must personally face injury from the regulation at issue and have a relationship with the third party. There also needs to be some obstacle to the third party raising its own rights. The courts have long held — including in Whole Woman’s Health — that abortion providers satisfy these three conditions when challenging state abortion restrictions.

But now, in briefs filed with the Supreme Court, Louisiana is arguing that the courts have granted standing to abortion providers based on “unexamined assumptions” that should be “abandoned.” They argue that abortion providers don’t have a sufficiently close relationship with their patients — as the state sees it, they don’t spend enough one-on-one time with them — and that there is no good reason that a woman couldn’t assert her own rights in court. They shrug off the notion that a woman might fear stigma or other harm in bringing a suit herself. “The notion that women considering abortion are unable to assert their own rights is a legal fiction,” lawyers for the Louisiana Department of Justice write in their petition, which notes that Roe v. Wade and its related cases were brought by individual women. Of course, in those cases the women filed suit using pseudonyms like “Jane Roe” precisely to protect their identities.

Louisiana also argues that when a health and safety regulation such as the admitting privileges law is at stake, there is an inherent conflict of interest between providers and patients that should preclude the providers from filing suit — after all, the law is meant to protect women from allegedly unfit doctors, they argue. “There is no basis to simply assume that women … get ‘what they want’ when the court allows a doctor to use women’s rights to challenge health and safety standards designed to protect women from those very doctors.”

To allow third-party standing in this case — and others like it — improperly grants abortion providers “favored” status, Louisiana argues.

If doctors aren’t allowed to bring suit, then individual women would have to carry the weight.

There is one member of the court who has expressed clear disdain for allowing third-party standing in abortion cases.