June Medical Services L. L. C. v. Russo

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JUNE MEDICAL SERVICES L. L. C. ET AL. v. RUSSO,
INTERIM SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 18–1323. Argued March 4, 2020—Decided June 29, 2020*
Louisiana’s Act 620, which is almost word-for-word identical to the Texas
“admitting privileges” law at issue in Whole Woman’s Health v. Heller-
stedt, 579 U. S. ___, requires any doctor who performs abortions to hold
“active admitting privileges at a hospital . . . located not further than
thirty miles from the location at which the abortion is performed or
induced,” and defines “active admitting privileges” as being “a member
in good standing” of the hospital’s “medical staff . . . with the ability to
admit a patient and to provide diagnostic and surgical services to such
patient.”
In these consolidated cases, five abortion clinics and four abortion
providers challenged Act 620 before it was to take effect, alleging that
it was unconstitutional because (among other things) it imposed an
undue burden on the right of their patients to obtain an abortion. (The
plaintiff providers and two additional doctors are referred to as Does 1
through 6.) The plaintiffs asked for a temporary restraining order
(TRO), followed by a preliminary injunction to prevent the law from
taking effect. The defendant (State) opposed the TRO request but also
urged the court not to delay ruling on the preliminary injunction mo-
tion, asserting that there was no doubt about the physicians’ standing.
Rather than staying the Act’s effective date, the District Court provi-
sionally forbade the State to enforce the Act’s penalties, while directing
——————
* Together with No. 18–1460, Russo, Interim Secretary, Louisiana De-
partment of Health and Hospitals v. June Medical Services L. L. C. et al.,
also on certiorari to the same court.
2 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Syllabus
the plaintiff doctors to continue to seek privileges and to keep the court
apprised of their progress. Several months later, after a 6-day bench
trial, the District Court declared Act 620 unconstitutional on its face
and preliminarily enjoined its enforcement. On remand in light of
Whole Woman’s Health, the District Court ruled favorably on the plain-
tiffs’ request for a permanent injunction on the basis of the record pre-
viously developed, finding, among other things, that the law offers no
significant health benefit; that conditions on admitting privileges com-
mon to hospitals throughout the State have made and will continue to
make it impossible for abortion providers to obtain conforming privi-
leges for reasons that have nothing to do with the State’s asserted in-
terests in promoting women’s health and safety; and that this inability
places a substantial obstacle in the path of women seeking an abortion.
The court concluded that the law imposes an undue burden and is thus
unconstitutional. The Fifth Circuit reversed, agreeing with the Dis-
trict Court’s interpretation of the standards that apply to abortion reg-
ulations, but disagreeing with nearly every one of the District Court’s
factual findings.
Held: The judgment is reversed.
905 F. 3d 787, reversed.
JUSTICE BREYER, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR,
and JUSTICE KAGAN, concluded:
1. The State’s unmistakable concession of standing as part of its ef-
fort to obtain a quick decision from the District Court on the merits of
the plaintiffs’ undue-burden claims and a long line of well-established
precedents foreclose its belated challenge to the plaintiffs’ standing in
this Court. Pp. 11–16.
2. Given the District Court’s factual findings and precedents, partic-
ularly Whole Woman’s Health, Act 620 violates the Constitution.
Pp. 16–40.
(a) Under the applicable constitutional standards set forth in the
Court’s earlier abortion-related cases, particularly Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Whole
Woman’s Health, “ ‘[u]nnecessary health regulations that have the
purpose or effect of presenting a substantial obstacle to a woman seek-
ing an abortion impose an undue burden on the right’ ” and are there-
fore “constitutionally invalid,” Whole Woman’s Health, 579 U. S., at
___. This standard requires courts independently to review the legis-
lative findings upon which an abortion-related statute rests and to
weigh the law’s “asserted benefits against the burdens” it imposes on
abortion access. Id., at ___. The District Court here, like the trial court
in Whole Woman’s Health, faithfully applied these standards. The
Cite as: 591 U. S. ____ (2020) 3
Syllabus
Fifth Circuit disagreed with the District Court, not so much in respect
to the legal standards, but in respect to the factual findings on which
the District Court relied in assessing both the burdens that Act 620
imposes and the health-related benefits it might bring.
Under well-established legal standards, a district court’s findings of
fact “must not be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court’s opportunity to judge the
witnesses’ credibility.” Fed. Rule. Civ. Proc. 52(a)(6). When the dis-
trict court is “sitting without a jury,” the appellate court “is not to de-
cide factual issues de novo,” Anderson v. Bessemer City, 470 U. S. 564,
573. Provided “the district court’s account of the evidence is plausible
in light of the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.” Id., at
573–574. Viewed in light of this standard, the testimony and other
evidence contained in the extensive record developed over the 6-day
trial support the District Court’s conclusion on Act 620’s constitution-
ality. Pp. 16–19.
(b) Taken together, the District Court’s findings and the evidence
underlying them are sufficient to support its conclusion that enforcing
the admitting-privileges requirement would drastically reduce the
number and geographic distribution of abortion providers, making it
impossible for many women to obtain a safe, legal abortion in the State
and imposing substantial obstacles on those who could. Pp. 19–35.
(1) The evidence supporting the court’s findings in respect to
Act 620’s impact on abortion providers is stronger and more detailed
than that in Whole Woman’s Health. The District Court supervised
Does 1, 2, 5, and 6 for more than 18 months as they tried, and largely
failed, to obtain conforming privileges from 13 relevant hospitals; it
relied on a combination of direct evidence that some of the doctors’ ap-
plications were denied for reasons having nothing to do with their abil-
ity to perform abortions safely, and circumstantial evidence—includ-
ing hospital bylaws with requirements like those considered in Whole
Woman’s Health and evidence that showed the role that opposition to
abortion plays in some hospitals’ decisions—that explained why other
applications were denied despite the doctors’ good-faith efforts. Just
as in Whole Woman’s Health, that evidence supported the District
Court’s factual finding that Louisiana’s admitting-privileges require-
ment serves no “relevant credentialing function.” 579 U. S., at ___.
The Fifth Circuit's conclusion that Does 2, 5, and 6 acted in bad faith
cannot be squared with the clear-error standard of review that applies
to the District Court’s contrary findings. Pp. 19–31.
(2) The District Court also drew from the record evidence sev-
4 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Syllabus
eral conclusions in respect to the burden that Act 620 is likely to im-
pose upon women’s ability to access an abortion in Louisiana. It found
that enforcing that requirement would prevent Does 1, 2, and 6 from
providing abortions altogether. Doe 3 gave uncontradicted, in-court
testimony that he would stop performing abortions if he was the last
provider in northern Louisiana, so the departure of Does 1 and 2 would
also eliminate Doe 3. And Doe 5’s inability to obtain privileges in the
Baton Rouge area would leave Louisiana with just one clinic with one
provider to serve the 10,000 women annually who seek abortions in
the State. Those women not altogether prevented from obtaining an
abortion would face “longer waiting times, and increased crowding.”
Whole Woman’s Health, 579 U. S., at ___. Delays in obtaining an abor-
tion might increase the risk that a woman will experience complica-
tions from the procedure and may make it impossible for her to choose
a non-invasive medication abortion. Both expert and lay witnesses
testified that the burdens of increased travel to distant clinics would
fall disproportionately on poor women, who are least able to absorb
them. Pp. 31–35.
(c) An examination of the record also shows that the District
Court’s findings regarding the law’s asserted benefits are not “clearly
erroneous.” The court found that the admitting-privileges require-
ment serves no “relevant credentialing function.” 250 F. Supp. 3d 27,
87. Hospitals can, and do, deny admitting privileges for reasons unre-
lated to a doctor’s ability safely to perform abortions, focusing primar-
ily upon a doctor’s ability to perform the inpatient, hospital-based pro-
cedures for which the doctor seeks privileges—not outpatient
abortions. And nothing in the record indicates that the vetting of ap-
plicants for privileges adds significantly to the vetting already pro-
vided by the State Board of Medical Examiners. The court’s finding
that the admitting-privileges requirement “does not conform to pre-
vailing medical standards and will not improve the safety of abortion
in Louisiana,” ibid., is supported by expert and lay trial testimony.
And, as in Whole Woman’s Health, the State introduced no evidence
“showing that patients have better outcomes when their physicians
have admitting privileges” or “of any instance in which an admitting
privileges requirement would have helped even one woman obtain bet-
ter treatment,” 250 F. Supp. 3d., at 64. Pp. 35–38.
(d) In light of the record, the District Court’s significant factual
findings—both as to burdens and as to benefits—have ample eviden-
tiary support and are not “clearly erroneous.” Thus, the court’s related
factual and legal determinations and its ultimate conclusion that Act
620 is unconstitutional are proper. P. 38.
THE CHIEF JUSTICE agreed that abortion providers in this case have
Cite as: 591 U. S. ____ (2020) 5
Syllabus
standing to assert the constitutional rights of their patients and con-
cluded that because Louisiana’s Act 620 imposes a burden on access to
abortion just as severe as that imposed by the nearly identical Texas
law invalidated four years ago in Whole Woman’s Health v. Hellerstedt,
579 U. S. ___, it cannot stand under principles of stare decisis. Pp. 1–
16.
BREYER, J., announced the judgment of the Court and delivered an
opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROB-
ERTS, C. J., filed an opinion concurring in the judgment. THOMAS, J., filed
a dissenting opinion. ALITO, J., filed a dissenting opinion, in which GOR-
SUCH, J., joined, in which THOMAS, J., joined except as to Parts III–C and
IV–F, and in which KAVANAUGH, J., joined as to Parts I, II, and III. GOR-
SUCH, J., and KAVANAUGH, J., filed dissenting opinions.
Cite as: 591 U. S. ____ (2020) 1
Opinion of
Opinion of B
the Court
REYER , J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1323 and 18–1460
_________________
JUNE MEDICAL SERVICES L. L. C., ET AL.,
PETITIONERS
18–1323 v.
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, PETITIONER
18–1460 v.
JUNE MEDICAL SERVICES L. L. C., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 29, 2020]
JUSTICE BREYER announced the judgment of the Court
and delivered an opinion, in which JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join.
In Whole Woman’s Health v. Hellerstedt, 579 U. S. ___
(2016), we held that “ ‘[u]nnecessary health regulations that
have the purpose or effect of presenting a substantial obsta-
cle to a woman seeking an abortion impose an undue bur-
den on the right’ ” and are therefore “constitutionally inva-
lid.” Id., at ___ (slip op., at 1) (quoting Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992) (plu-
rality opinion); alteration in original). We explained that
2 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
this standard requires courts independently to review the
legislative findings upon which an abortion-related statute
rests and to weigh the law’s “asserted benefits against the
burdens” it imposes on abortion access. 579 U. S., at ___
(slip op., at 21) (citing Gonzales v. Carhart, 550 U. S. 124,
165 (2007)).
The Texas statute at issue in Whole Woman’s Health re-
quired abortion providers to hold “ ‘active admitting privi-
leges at a hospital’ ” within 30 miles of the place where they
perform abortions. 579 U. S., at ___ (slip op., at 1) (quoting
Tex. Health & Safety Ann. Code §171.0031(a) (West Cum.
Supp. 2015)). Reviewing the record for ourselves, we found
ample evidence to support the District Court’s finding that
the statute did not further the State’s asserted interest in
protecting women’s health. The evidence showed, moreo-
ver, that conditions on admitting privileges that served no
“relevant credentialing function,” 579 U. S., at ___ (slip op.,
at 25), “help[ed] to explain” the closure of half of Texas’
abortion clinics, id., at ___ (slip op., at 24). Those closures
placed a substantial obstacle in the path of Texas women
seeking an abortion. Ibid. And that obstacle, “when viewed
in light of the virtual absence of any health benefit,” im-
posed an “undue burden” on abortion access in violation of
the Federal Constitution. Id., at ___ (slip op., at 26); see
Casey, 505 U. S., at 878 (plurality opinion).
In this case, we consider the constitutionality of a Louisi-
ana statute, Act 620, that is almost word-for-word identical
to Texas’ admitting-privileges law. See La. Rev. Stat. Ann.
§40:1061.10(A)(2)(a) (West 2020). As in Whole Woman’s
Health, the District Court found that the statute offers no
significant health benefit. It found that conditions on ad-
mitting privileges common to hospitals throughout the
State have made and will continue to make it impossible for
abortion providers to obtain conforming privileges for rea-
sons that have nothing to do with the State’s asserted in-
terests in promoting women’s health and safety. And it
Cite as: 591 U. S. ____ (2020) 3
Opinion of BREYER, J.
found that this inability places a substantial obstacle in the
path of women seeking an abortion. As in Whole Woman’s
Health, the substantial obstacle the Act imposes, and the
absence of any health-related benefit, led the District Court
to conclude that the law imposes an undue burden and is
therefore unconstitutional. See U. S. Const., Amdt. 14, §1.
The Court of Appeals agreed with the District Court’s in-
terpretation of the standards we have said apply to regula-
tions on abortion. It thought, however, that the District
Court was mistaken on the facts. We disagree. We have
examined the extensive record carefully and conclude that
it supports the District Court’s findings of fact. Those find-
ings mirror those made in Whole Woman’s Health in every
relevant respect and require the same result. We conse-
quently hold that the Louisiana statute is unconstitutional.
I
A
In March 2014, five months after Texas’ admitting-privi-
leges requirement forced the closure of half of that State’s
abortion clinics, Louisiana’s Legislature began to hold hear-
ings to consider a substantially identical proposal. Com-
pare Whole Woman’s Health, 579 U. S., at ___ – ___ (slip op.,
at 1–2), with June Medical Services LLC v. Kliebert, 250
F. Supp. 3d 27, 53 (MD La. 2017); Record 11220. The pro-
posal became law in mid-June 2014. 2014 La. Acts p. 2330.
As was true in Texas, Louisiana law already required
abortion providers either to possess local hospital admitting
privileges or to have a patient “transfer” arrangement with
a physician who had such privileges. Compare Whole
Woman’s Health, 579 U. S., at ___ (slip op., at 2) (citing Tex.
Admin. Code, tit. 25, §139.56 (2009)), with former La. Ad-
min. Code, tit. 48, pt. I, §4407(A)(3) (2003), 29 La. Reg. 706–
707 (2003). The new law eliminated that flexibility. Act
620 requires any doctor who performs abortions to hold “ac-
tive admitting privileges at a hospital that is located not
4 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
further than thirty miles from the location at which the
abortion is performed or induced and that provides obstet-
rical or gynecological health care services.” La. Rev. Stat.
Ann. §40:1061.10(A)(2)(a).
The statute defines “active admitting privileges” to mean
that the doctor must be “a member in good standing” of the
hospital’s “medical staff . . . with the ability to admit a pa-
tient and to provide diagnostic and surgical services to such
patient.” Ibid.; La. Admin. Code, tit. 48, pt. I, §4401. Fail-
ure to comply may lead to fines of up to $4,000 per violation,
license revocation, and civil liability. See ibid.; La. Rev.
Stat. Ann. §40:1061.29.
B
A few weeks before Act 620 was to take effect in Septem-
ber 2014, three abortion clinics and two abortion providers
filed a lawsuit in Federal District Court. They alleged that
Act 620 was unconstitutional because (among other things)
it imposed an undue burden on the right of their patients to
obtain an abortion. App. 24. The court later consolidated
their lawsuit with a similar, separate action brought by two
other clinics and two other abortion providers. (Like the
courts below, we shall refer to the two doctors in the first
case as Doe 1 and Doe 2; we shall refer to the two doctors in
the second case as Doe 5 and Doe 6; and we shall refer to
two other doctors then practicing in Louisiana as Doe 3 and
Doe 4.)
The plaintiffs immediately asked the District Court to is-
sue a temporary restraining order (TRO), followed by a pre-
liminary injunction that would prevent the law from taking
effect. June Medical Services LLC v. Caldwell, No. 14–cv–
00525 (MD La., Aug. 22, 2014), Doc. No. 5.
The State of Louisiana, appearing for the defendant Sec-
retary of the Department of Health and Hospitals, filed a
response that opposed the plaintiffs’ TRO request. App. 32–
39. But the State went on to say that, if the court granted
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Opinion of BREYER, J.
the TRO or if the parties reached an agreement that would
allow the plaintiffs time to obtain privileges without a TRO,
the court should hold a hearing on the preliminary injunc-
tion request as soon as possible. Id., at 43. The State ar-
gued that there was no reason to delay a ruling on the mer-
its of the plaintiffs’ undue-burden claims. Id., at 43–44. It
asserted that there was “no question that the physicians
had standing to contest the law.” Id., at 44. And, in light
of the State’s “overriding interest in vindicating the consti-
tutionality of its admitting-privileges law,” the plaintiffs’
suit was “the proper vehicle” to “remov[e] any cloud upon”
Act 620’s “validity.” Id., at 45.
The District Court declined to stay the Act’s effective
date. Instead, it provisionally forbade the State to enforce
the Act’s penalties, while directing the plaintiff doctors to
continue to seek conforming privileges and to keep the court
apprised of their progress. See TRO in No. 14–cv–00525,
Doc. No. 31, pp. 2–3; see, e.g., App. 48–55, 64–82. These
updates continued through the date of the District Court’s
decision. 250 F. Supp. 3d, at 77.
C
In June 2015, the District Court held a 6-day bench trial
on the plaintiffs’ request for a preliminary injunction. It
heard live testimony from a dozen witnesses, including
three Louisiana abortion providers, June Medical’s admin-
istrator, the Secretary (along with a senior official) of the
State’s Department of Health and Hygiene, and three ex-
perts each for the plaintiffs and the State. Id., at 33–34. It
also heard from several other witnesses via deposition.
Ibid. Based on this evidentiary record, the court issued a
decision in January 2016 declaring Act 620 unconstitu-
tional on its face and preliminarily enjoining its enforce-
ment. June Medical Services LLC v. Kliebert, 158 F. Supp.
3d 473 (MD La.).
The State immediately asked the Court of Appeals for the
6 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
Fifth Circuit to stay the District Court’s injunction. The
Court of Appeals granted that stay. But we then issued our
own stay at the plaintiffs’ request, thereby leaving the Dis-
trict Court’s preliminary injunction (at least temporarily)
in effect. See June Medical Services, L. L. C. v. Gee, 814
F. 3d 319 (CA5), vacated, 577 U. S. ___ (2016).
Approximately two months later, in June 2016, we issued
our decision in Whole Woman’s Health, reversing the Fifth
Circuit’s judgment in that case. We remanded this case for
reconsideration, and the Fifth Circuit in turn remanded the
case to the District Court permitting it to engage in further
factfinding. See June Medical Services, L.L.C. v. Gee, 2016
WL 11494731 (CA5, Aug. 24, 2016) (per curiam). All the
parties agreed that the District Court could rule on the
plaintiffs’ request for a permanent injunction on the basis
of the record it had already developed. Minute Entry in No.
14–cv–00525, Doc. No. 253. The court proceeded to do so.
D
Because the issues before us in this case primarily focus
upon the factual findings (and fact-related determinations)
of the District Court, we set forth only the essential findings
here, giving greater detail in the analysis that follows.
With respect to the Act’s asserted benefits, the District
Court found that:
 “[A]bortion in Louisiana has been extremely safe,
with particularly low rates of serious complications.”
250 F. Supp. 3d, at 65. The “testimony of clinic staff
and physicians demonstrated” that it “rarely . . . is
necessary to transfer patients to a hospital: far less
than once a year, or less than one per several thou-
sand patients.” Id., at 63. And “[w]hether or not a
patient’s treating physician has admitting privileges
is not relevant to the patient’s care.” Id., at 64.
 There was accordingly “ ‘no significant health-related
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Opinion of BREYER, J.
problem that the new law helped to cure.’ The rec-
ord does not contain any evidence that complications
from abortion were being treated improperly, nor
any evidence that any negative outcomes could have
been avoided if the abortion provider had admitting
privileges at a local hospital.” Id., at 86. (quoting
Whole Woman’s Health, 579 U. S., at ___ (slip op., at
22)); see also 250 F. Supp. 3d, at 86–87 (summariz-
ing conclusions).
 There was also “no credible evidence in the record
that Act 620 would further the State’s interest in
women’s health beyond that which is already in-
sured under existing Louisiana law.” Id., at 65.
Turning to Act 620’s impact on women’s access to abor-
tion, the District Court found that:
 Approximately 10,000 women obtain abortions in
Louisiana each year. Id., at 39. At the outset of this
litigation, those women were served by six doctors at
five abortion clinics. Id., at 40, 41–44. By the time
the court rendered its decision, two of those clinics
had closed, and one of the doctors (Doe 4) had re-
tired, leaving only Does 1, 2, 3, 5, and 6. Ibid.
 “[N]otwithstanding the good faith efforts of Does 1,
2, 4, 5 and 6 to comply with the Act by getting active
admitting privileges at a hospital within 30 miles of
where they perform abortions, they have had very
limited success for reasons related to Act 620 and
not related to their competence.” Id., at 78.
 These doctors’ inability to secure privileges was
“caused by Act 620 working in concert with existing
laws and practices,” including hospital bylaws and
criteria that “preclude or, at least greatly discour-
age, the granting of privileges to abortion providers.”
Id., at 50.
8 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
 These requirements establish that admitting privi-
leges serve no “ ‘relevant credentialing function’ ” be-
cause physicians may be denied privileges “for rea-
sons unrelated to competency.” Id., at 87 (quoting
Whole Woman’s Health, 579 U. S., at ___ (slip. op.,
at 25)).
 They also make it “unlikely that the [a]ffected clinics
will be able to comply with the Act by recruiting new
physicians who have or can obtain admitting privi-
leges.” 250 F. Supp. 3d, at 82.
 Doe 3 testified credibly “that, as a result of his fears,
and the demands of his private OB/GYN practice, if
he is the last physician performing abortion in either
the entire state or in the northern part of the state,
he will not continue to perform abortions.” Id., at
79; see also id., at 78–79 (summarizing that testi-
mony).
 Enforcing the admitting-privileges requirement
would therefore “result in a drastic reduction in the
number and geographic distribution of abortion pro-
viders, reducing the number of clinics to one, or at
most two, and leaving only one, or at most two, phy-
sicians providing abortions in the entire state,” Does
3 and 5, who would only be allowed to practice in
Shreveport and New Orleans. Id., at 87. Depending
on whether Doe 3 stopped practicing, or whether his
retirement was treated as legally relevant, the im-
pact would be a 55%–70% reduction in capacity. Id.,
at 81.
 “The result of these burdens on women and provid-
ers, taken together and in context, is that many
women seeking a safe, legal abortion in Louisiana
will be unable to obtain one. Those who can will face
substantial obstacles in exercising their constitu-
tional right to choose abortion due to the dramatic
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Opinion of BREYER, J.
reduction in abortion services.” Id., at 88; see id., at
79, 82, 87–88.
 In sum, “Act 620 does not advance Louisiana’s legit-
imate interest in protecting the health of women
seeking abortions. Instead, Act 620 would increase
the risk of harm to women’s health by dramatically
reducing the availability of safe abortion in Louisi-
ana.” Id., at 87; see also id., at 65–66.
The District Court added that
“there is no legally significant distinction between this
case and [Whole Woman’s Health]: Act 620 was mod-
eled after the Texas admitting privileges requirement,
and it functions in the same manner, imposing signifi-
cant obstacles to abortion access with no countervailing
benefits.” Id., at 88.
On the basis of these findings, the court held that Act 620
and its implementing regulations are unconstitutional. It
entered an injunction permanently forbidding their en-
forcement.
E
The State appealed. A divided panel of the Court of Ap-
peals reversed the District Court’s judgment. The panel
majority concluded that Act 620’s impact was “dramatically
less” than that of the Texas law invalidated in Whole
Woman’s Health. June Medical Services L. L. C. v. Gee, 905
F. 3d 787, 791 (CA5 2018). “Despite its diligent effort to
apply [Whole Woman’s Health] faithfully,” the majority
thought that the District Court had “clearly erred in con-
cluding otherwise.” Id., at 815.
With respect to the Act’s asserted benefits, the majority
thought that, “[u]nlike Texas, Louisiana presents some ev-
idence of a minimal benefit.” Id., at 805. Rejecting the Dis-
trict Court’s contrary finding, it concluded that the admit-
ting-privileges requirement “performs a real, and
10 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
previously unaddressed, credentialing function that pro-
motes the wellbeing of women seeking abortion.” Id., at
806. The majority believed that the process of obtaining
privileges would help to “verify an applicant’s surgical abil-
ity, training, education, experience, practice record, and
criminal history.” Id., at 805, and n. 53. And it accepted
the State’s argument that the law “brings the requirements
regarding outpatient abortion clinics into conformity with
the preexisting requirement that physicians at ambulatory
surgical centers (‘ASCs’) must have privileges at a hospital
within the community.” Id., at 805.
Moving on to Act 620’s burdens, the appeals court wrote
that “everything turns on whether the privileges require-
ment actually would prevent doctors from practicing in
Louisiana.” Id., at 807. Although the State challenged the
District Court’s findings only with respect to Does 2 and 3,
the Court of Appeals went further. It disagreed with nearly
every one of the District Court’s findings, concluding that
“the district court erred in finding that only Doe 5 would be
able to obtain privileges and that the application process
creates particular hardships and obstacles for abortion pro-
viders in Louisiana.” Id., at 810. The court noted that “[a]t
least three hospitals have proven willing to extend privi-
leges.” Ibid. It thought that “only Doe 1 has put forth a
good-faith effort to get admitting privileges,” while “Doe 2,
Doe 5, and Doe 6 could likely obtain privileges,” ibid., and
“Doe 3’s personal choice to stop practicing cannot be legally
attributed to Act 620,” id., at 811.
Having rejected the District Court’s findings with respect
to all but one of the physicians, the Court of Appeals con-
cluded that “there is no evidence that Louisiana facilities
will close from Act 620.” Id., at 810. The appeals court al-
lowed that the Baton Rouge clinic where Doe 5 had not ob-
tained privileges would close. But it reasoned that
“[b]ecause obtaining privileges is not overly burdensome,
Cite as: 591 U. S. ____ (2020) 11
Opinion of BREYER, J.
. . . the fact that one clinic would have to close is not a sub-
stantial burden that can currently be attributed to Act 620
as distinguished from Doe 5’s failure to put forth a good
faith effort.” Ibid. The Court of Appeals added that the
additional work that Doe 2 and Doe 3 would have to do to
compensate for Doe 1’s inability to perform abortions “does
not begin to approach the capacity problem in” Whole
Woman’s Health. 905 F. 3d, at 812. It estimated that Act
620 would “resul[t] in a potential increase” in waiting times
“of 54 minutes at one of the state’s clinics for at most 30%
of women.” Id., at 815.
On the basis of these findings, the panel majority con-
cluded that Louisiana’s admitting-privileges requirement
would impose no “substantial burden at all” on Louisiana
women seeking an abortion, “much less a substantial bur-
den on a large fraction of women as is required to sustain a
facial challenge.” Ibid. Judge Higginbotham dissented.
The Court of Appeals denied the plaintiffs’ petition for en
banc rehearing over dissents by Judges Dennis and Hig-
ginson, joined by four of their colleagues. See June Medical
Services, L. L. C. v. Gee, 913 F. 3d 573 (2019) (per curiam).
The plaintiffs then asked this Court to stay the Fifth Cir-
cuit’s judgment. We granted their application, thereby al-
lowing the District Court’s injunction to remain in effect.
June Medical Services, L. L. C. v. Gee, 586 U. S. ___ (2019).
The plaintiffs subsequently filed a petition for certiorari ad-
dressing the merits of the appeals court’s decision. The
State filed a cross-petition, challenging the plaintiffs’ au-
thority to maintain this action. We granted both petitions.
II
We initially consider a procedural argument that the
State raised for the first time in its cross-petition for certi-
orari. As we have explained, the plaintiff abortion provid-
ers and clinics in this case have challenged Act 620 on the
ground that it infringes their patients’ rights to access an
12 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
abortion. The State contends that the proper parties to as-
sert these rights are the patients themselves. We think
that the State has waived that argument.
The State’s argument rests on the rule that a party can-
not ordinarily “ ‘rest his claim to relief on the legal rights or
interests of third parties.’ ” Kowalski v. Tesmer, 543 U. S.
125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499
(1975)). This rule is “prudential.” 543 U. S., at 128–129. It
does not involve the Constitution’s “case-or-controversy re-
quirement.” Id., at 129; see Craig v. Boren, 429 U. S. 190,
193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976).
And so, we have explained, it can be forfeited or waived.
See Craig, 429 U. S., at 193–194.
As we pointed out, supra, at 4–5, the State’s memoran-
dum opposing the plaintiffs’ TRO request urged the District
Court to proceed swiftly to the merits of the plaintiffs’ un-
due-burden claim. It argued that there was “no question
that the physicians had standing to contest” Act 620. App.
44. And it told the District Court that the Fifth Circuit had
found that doctors challenging Texas’ “identical” law “had
third-party standing to assert their patients’ rights.” Id., at
43–44. Noting that the Texas law had “already been up-
held,” the State asserted that it had “a keen interest in re-
moving any cloud upon the validity of its law.” Id., at 45.
It insisted that this suit was “the proper vehicle to do so.”
Ibid. The State did not mention its current objection until
it filed its cross-petition—more than five years after it ar-
gued that the plaintiffs’ standing was beyond question.
The State’s unmistakable concession of standing as part
of its effort to obtain a quick decision from the District
Court on the merits of the plaintiffs’ undue-burden claims
bars our consideration of it here. See Wood v. Milyard, 566
U. S. 463, 474 (2012); cf. post, at 24–25 (ALITO, J., dissent-
ing) (addressing the Court’s approach to claims forfeited,
rather than waived); post, at 7–8 (GORSUCH, J., dissenting)
Cite as: 591 U. S. ____ (2020) 13
Opinion of BREYER, J.
(addressing waiver of structural rather than prudential ob-
jections).
The State refers to the Fifth Circuit’s finding of standing
in Whole Woman’s Health as an excuse for its concession.
Brief for Respondent in No. 18–1323, p. 52 (Brief for Re-
spondent). But the standing argument the State makes
here rests on reasons that it tells us are specific to abortion
providers in Louisiana. See id., at 41–48. We are not per-
suaded that the State could have thought it was precluded
from making those arguments by a decision with respect to
Texas doctors.
And even if the State had merely forfeited its objection by
failing to raise it at any point over the last five years, we
would not now undo all that has come before on that basis.
What we said some 45 years ago in Craig applies equally
today: “[A] decision by us to forgo consideration of the con-
stitutional merits”—after “the parties have sought or at
least have never resisted an authoritative constitutional de-
termination” in the courts below—“in order to await the in-
itiation of a new challenge to the statute by injured third
parties would be impermissibly to foster repetitive and
time-consuming litigation under the guise of caution and
prudence.” 429 U. S., at 193–194 (quotation altered).
In any event, the rule the State invokes is hardly abso-
lute. We have long permitted abortion providers to invoke
the rights of their actual or potential patients in challenges
to abortion-related regulations. See, e.g., Whole Woman’s
Health, 579 U. S., at ___; Gonzales, 550 U. S., at 133; Ayotte
v. Planned Parenthood of Northern New Eng., 546 U. S.
320, 324 (2006); Stenberg v. Carhart, 530 U. S. 914, 922
(2000); Mazurek v. Armstrong, 520 U. S. 968, 969–970
(1997) (per curiam); Casey, 505 U. S., at 845 (majority opin-
ion); Akron v. Akron Center for Reproductive Health, Inc.,
462 U. S. 416, 440, n. 30 (1983); Planned Parenthood of Cen-
tral Mo. v. Danforth, 428 U. S. 52, 62 (1976); Doe v. Bolton,
410 U. S. 179, 188–189 (1973).
14 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
And we have generally permitted plaintiffs to assert
third-party rights in cases where the “ ‘enforcement of the
challenged restriction against the litigant would result in-
directly in the violation of third parties’ rights.’ ” Kowalski,
543 U. S., at 130 (quoting Warth, 422 U. S., at 510); see, e.g.,
Department of Labor v. Triplett, 494 U. S. 715, 720 (1990)
(Scalia, J., for the Court) (attorney raising rights of clients
to challenge restrictions on fee arrangements); Craig, 429
U. S., at 192 (convenience store raising rights of young men
to challenge sex-based restriction on beer sales); Doe, 410
U. S., at 188 (abortion provider raising the rights of preg-
nant women to access an abortion); Carey v. Population Ser-
vices Int’l, 431 U. S. 678 (1977) (distributors of contracep-
tives raising rights of prospective purchasers to challenge
restrictions on sales of contraceptives); Eisenstadt v. Baird,
405 U. S. 438 (1972) (similar); Griswold v. Connecticut, 381
U. S. 479, 481 (1965) (similar); Sullivan v. Little Hunting
Park, Inc., 396 U. S. 229 (1969) (white property owner rais-
ing rights of black contractual counterparty to challenge
discriminatory restrictions on ability to contract); Barrows
v. Jackson, 346 U. S. 249 (1953) (similar). In such cases, we
have explained, “the obvious claimant” and “the least awk-
ward challenger” is the party upon whom the challenged
statute imposes “legal duties and disabilities.” Craig, 429
U. S., at 196–197; see Akron, 462 U. S., at 440, n. 30;
Danforth, 428 U. S., at 62; Doe, 410 U. S., at 188.
The case before us lies at the intersection of these two
lines of precedent. The plaintiffs are abortion providers
challenging a law that regulates their conduct. The “threat-
ened imposition of governmental sanctions” for noncompli-
ance eliminates any risk that their claims are abstract or
hypothetical. Craig, 429 U. S., at 195. That threat also as-
sures us that the plaintiffs have every incentive to “resist
efforts at restricting their operations by acting as advocates
of the rights of third parties who seek access to their market
or function.” Ibid. And, as the parties who must actually
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Opinion of BREYER, J.
go through the process of applying for and maintaining ad-
mitting privileges, they are far better positioned than their
patients to address the burdens of compliance. See Single-
ton, 428 U. S., at 117 (plurality opinion) (observing that
“the physician is uniquely qualified to litigate the constitu-
tionality of the State’s interference with, or discrimination
against,” a woman’s decision to have an abortion). They
are, in other words, “the least awkward” and most “obvious”
claimants here. Craig, 429 U. S., at 197.
Our dissenting colleagues suggest that this case is differ-
ent because the plaintiffs have challenged a law ostensibly
enacted to protect the women whose rights they are assert-
ing. See post, at 25–26 (opinion of ALITO, J.); post, at 7
(opinion of GORSUCH, J.). But that is a common feature of
cases in which we have found third-party standing. The re-
striction on sales of 3.2% beer to young men challenged by
a drive-through convenience store in Craig was defended on
“public health and safety grounds,” including the premise
that young men were particularly susceptible to driving
while intoxicated. 429 U. S., at 199–200; see Hager, Gender
Discrimination and the Courts: New Ground to Cover,
Washington Post, Sept. 26, 1976, p. 139. And the rule re-
quiring approval from the Department of Labor for attorney
fee arrangements challenged by a lawyer in Triplett was
“designed to protect [their clients] from their improvident
contracts, in the interest not only of themselves and their
families but of the public.” 494 U. S., at 722 (internal quo-
tation marks omitted).
Nor is this the first abortion case to address provider
standing to challenge regulations said to protect women.
Both the hospitalization requirement in Akron, 462 U. S.,
at 435, and the hospital-accreditation requirement in Doe,
410 U. S., at 195, were defended as health and safety regu-
lations. And the ban on saline amniocentesis in Danforth
was based on the legislative finding “that the technique is
deleterious to maternal health.” 428 U. S., at 76 (internal
16 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
quotation marks omitted).
In short, the State’s strategic waiver and a long line of
well-established precedents foreclose its belated challenge
to the plaintiffs’ standing. We consequently proceed to con-
sider the merits of the plaintiffs’ claims.
III
A
Turning to the merits, we apply the constitutional stand-
ards set forth in our earlier abortion-related cases, and in
particular in Casey and Whole Woman’s Health. At the risk
of repetition, we remind the reader of the standards we de-
scribed above. In Whole Woman’s Health, we quoted Casey
in explaining that “ ‘a statute which, while furthering [a]
valid state interest has the effect of placing a substantial
obstacle in the path of a woman’s choice cannot be consid-
ered a permissible means of serving its legitimate ends.’ ”
579 U. S., at ___ (slip op., at 19) (quoting Casey, 505 U. S.,
at 877 (plurality opinion)). We added that “ ‘[u]nnecessary
health regulations’ ” impose an unconstitutional “ ‘undue
burden’ ” if they have “ ‘the purpose or effect of presenting a
substantial obstacle to a woman seeking an abortion.’ ” 579
U. S., at ___ (slip op., at 19) (quoting Casey, 505 U. S., at
878; emphasis added).
We went on to explain that, in applying these standards,
courts must “consider the burdens a law imposes on abor-
tion access together with the benefits those laws confer.”
579 U. S., at ___ – ___ (slip op., at 19–20). We cautioned
that courts “must review legislative ‘factfinding under a
deferential standard.’ ” Id., at ___ (slip op., at 20) (quoting
Gonzales, 550 U. S., at 165). But they “must not ‘place dis-
positive weight’ on those ‘findings,’ ” for the courts “ ‘retai[n]
an independent constitutional duty to review factual find-
ings where constitutional rights are at stake.’ ” 579 U. S.,
at ___ (slip op., at 20) (quoting Gonzales, 550 U. S., at 165;
emphasis deleted).
Cite as: 591 U. S. ____ (2020) 17
Opinion of BREYER, J.
We held in Whole Woman’s Health that the trial court
faithfully applied these standards. It “considered the evi-
dence in the record—including expert evidence, presented
in stipulations, depositions, and testimony.” 579 U. S., at
___ (slip op., at 21). It “then weighed the asserted benefits”
of the law “against the burdens” it imposed on abortion ac-
cess. Ibid. And it concluded that the balance tipped against
the statute’s constitutionality. The District Court in this
suit did the same.
B
The Court of Appeals disagreed with the District Court,
not so much in respect to the legal standards that we have
just set forth, but because it did not agree with the factual
findings on which the District Court relied in assessing both
the burdens that Act 620 imposes and the health-related
benefits it might bring. Compare, e.g., supra, at 6–9, with
supra, at 9–11. We have consequently reviewed the record
in detail ourselves. In doing so, we have applied well-estab-
lished legal standards.
We start from the premise that a district court’s findings
of fact, “whether based on oral or other evidence, must not
be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court’s opportunity
to judge the witnesses’ credibility.” Fed. Rule Civ. Proc.
52(a)(6). In “ ‘applying [this] standard to the findings of a
district court sitting without a jury, appellate courts must
constantly have in mind that their function is not to decide
factual issues de novo.’ ” Anderson v. Bessemer City, 470
U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazel-
tine Research, Inc., 395 U. S. 100, 123 (1969)). Where “the
district court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting
as the trier of fact, it would have weighed the evidence dif-
ferently.” Anderson, 470 U. S., at 573–574. “A finding that
18 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
is ‘plausible’ in light of the full record—even if another is
equally or more so—must govern.” Cooper v. Harris, 581
U. S. ___, ___ (2017) (slip op., at 4).
Our dissenting colleagues suggest that a different, less-
deferential standard should apply here because the District
Court enjoined the admitting-privileges requirement before
it was enforced. See post, at 11–12 (opinion of ALITO, J.);
post, at 11–13 (opinion of GORSUCH, J.). We are aware of
no authority suggesting that appellate scrutiny of factual
determinations varies with the timing of a plaintiff ’s law-
suit or a trial court’s decision. And, in any event, the record
belies the dissents’ claims that the District Court’s findings
in this case were “conjectural” or premature. As we have
explained, the District Court’s order on the plaintiffs’ mo-
tion for a temporary restraining order suspended only Act
620’s penalties. The plaintiffs were required to continue in
their efforts to obtain admitting privileges. See supra, at 5.
The District Court supervised those efforts through the
trial and beyond. See 250 F. Supp. 3d, at 77. It based its
findings on this real-world evidence, not speculative guess-
work. Nor can we agree with the suggestion that the timing
of the District Court’s decision somehow prejudiced the
State. From the start, the State urged that the District
Court decide the merits of the plaintiffs’ claims without
awaiting a decision on their applications for admitting priv-
ileges. See App. 43–44. And, when this case returned to
the District Court in August 2016, following our decision in
Whole Woman’s Health, the State stipulated that the case
was ripe for decision on the record as it stood in June 2015.
See supra, at 5–6. In short, we see no legal or practical ba-
sis to depart from the familiar standard that applies to all
“[f]indings of fact.” Fed. Rule Civ. Proc. 52(a).
Under that familiar standard, we find that the testimony
and other evidence contained in the extensive record devel-
oped over the 6-day trial support the District Court’s ulti-
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Opinion of BREYER, J.
mate conclusion that, “[e]ven if Act 620 could be said to fur-
ther women’s health to some marginal degree, the burdens
it imposes far outweigh any such benefit, and thus the Act
imposes an unconstitutional undue burden.” 250 F. Supp.
3d, at 88.
IV
The District Court’s Substantial-Obstacle Determination
The District Court found that enforcing the admitting-
privileges requirement would “result in a drastic reduction
in the number and geographic distribution of abortion pro-
viders.” Id., at 87. In light of demographic, economic, and
other evidence, the court concluded that this reduction
would make it impossible for “many women seeking a safe,
legal abortion in Louisiana . . . to obtain one” and that it
would impose “substantial obstacles” on those who could.
Id., at 88. We consider each of these findings in turn.
A
Act 620’s Effect on Abortion Providers
We begin with the District Court’s findings in respect to
Act 620’s impact on abortion providers. As we have said,
the court found that the Act would prevent Does 1, 2, and 6
from providing abortions. And it found that the Act would
bar Doe 5 from working in his Baton Rouge-based clinic,
relegating him to New Orleans. See supra, at 7–8.
1
In Whole Woman’s Health, we said that, by presenting
“direct testimony” from doctors who had been unable to se-
cure privileges, and “plausible inferences to be drawn from
the timing of the clinic closures” around the law’s effective
date, the plaintiffs had “satisfied their burden” to establish
that the Texas admitting-privileges requirement caused
the closure of those clinics. 579 U. S., at ___ (slip op., at 26).
We wrote that these inferences were bolstered by the sub-
20 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
missions of amici in the medical profession, which “de-
scribe[d] the undisputed general fact that hospitals often”
will restrict admitting privileges to doctors likely to seek a
“certain number of admissions per year.” Id., at ___ (slip
op., at 24) (internal quotation marks omitted). The likely
effect of such requirements was that abortion providers
“would be unable to maintain admitting privileges or obtain
those privileges for the future, because the fact that abor-
tions are so safe meant that providers were unlikely to have
any patients to admit.” Id., at ___ (slip op., at 25). We also
referred to “common prerequisites to obtaining admitting
privileges that have nothing to do with ability to perform
medical procedures”; for example, requirements that doc-
tors have “treated a high number of patients in the hospital
setting in the past year, clinical data requirements, resi-
dency requirements, and other discretionary factors.” Ibid.
To illustrate how these criteria impacted abortion provid-
ers, we noted the example of an obstetrician with 38 years’
experience who had been denied admitting privileges for
reasons “ ‘not based on clinical competence considerations.’ ”
Ibid. This, we said, showed that the law served no “relevant
credentialing function,” but prevented qualified providers
from serving women who seek an abortion. Id., at ___ (slip
op., at 25). And that, in turn, “help[ed] to explain why the
new [law’s admitting-privileges] requirement led to the clo-
sure of ” so many Texas clinics. Id., at ___ (slip op., at 24).
The evidence on which the District Court relied in this
case is even stronger and more detailed. The District Court
supervised Does 1, 2, 5, and 6 for over a year and a half as
they tried, and largely failed, to obtain conforming privi-
leges from 13 relevant hospitals. See 250 F. Supp. 3d, at
77–78; App. 48–55, 64–82. The court heard direct evidence
that some of the doctors’ applications were denied for rea-
sons that had nothing to do with their ability to perform
abortions safely. 250 F. Supp. 3d, at 68–70, 76–77;
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Opinion of BREYER, J.
App. 1310, 1435–1436. It also compiled circumstantial evi-
dence that explains why other applications were denied and
explains why, given the costs of applying and the reputa-
tional risks that accompany rejection, some providers could
have chosen in good faith not to apply to every qualifying
hospital. Id., at 1135, 1311 (discussing the costs associated
with unsuccessful applications). That circumstantial evi-
dence includes documents and testimony that described the
processes Louisiana hospitals follow when considering ap-
plications for admitting privileges, including requirements
like the ones we cited in Whole Woman’s Health that are
unrelated to a doctor’s competency to perform abortions.
See generally Brief for Medical Staff Professionals as Amici
Curiae 11–30 (reviewing the hospital bylaws in the record).
The evidence shows, among other things, that the fact
that hospital admissions for abortion are vanishingly rare
means that, unless they also maintain active OB/GYN prac-
tices, abortion providers in Louisiana are unlikely to have
any recent in-hospital experience. 250 F. Supp. 3d, at 49.
Yet such experience can well be a precondition to obtaining
privileges. Doe 2, a board-certified OB/GYN with nearly 40
years’ experience, testified that he had not “done any in-
hospital work in ten years” and that just two of his patients
in the preceding 5 years had required hospitalization. App.
387, 400. As a result, he was unable to comply with one
hospital’s demand that he produce data on “patient admis-
sions and management, consultations and procedures per-
formed” in-hospital before his application could be “pro-
cessed.” Id., at 1435; see id., at 437–438. Doe 1, a board-
certified family doctor with over 10 years’ experience, was
similarly unable to “submit documentation of hospital ad-
missions and management of patients.” Id., at 1436.
The evidence also shows that many providers, even if
they could initially obtain admitting privileges, would be
unable to keep them. That is because, unless they have a
practice that requires regular in-hospital care, they will
22 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
lose the privileges for failing to use them. Doe 6, a board-
certified OB/GYN practitioner with roughly 50 years’ expe-
rience, provides only medication abortions. Id., at 1308. Of
the thousands of women he served over the decade before
the District Court’s decision, during which he also per-
formed surgical abortions, just two required a direct trans-
fer to a hospital and one of them was treated without being
admitted. Id., at 1309. That safety record would make it
impossible for Doe 6 to maintain privileges at any of the
many Louisiana hospitals that require newly appointed
physicians to undergo a process of “focused professional
practice evaluation,” in which they are observed by hospital
staff as they perform in-hospital procedures. See Record
2635, 2637, 2681, 9054; Brief for Medical Staff Profession-
als as Amici Curiae 28–29 (describing this practice); cf. Rec-
ord 10755 (requiring an “on-going review” of practice “in the
Operating Room”). And it would likewise disqualify him at
hospitals that require physicians to admit a minimum num-
ber of patients, either initially or on an ongoing basis. See,
e.g., id., at 9040, 9068–9069, 9150–9153; cf. App. 1193, 1182
(provider with no patient contacts in first year assigned to
“Affiliate” status, without admitting privileges).
The evidence also shows that opposition to abortion
played a significant role in some hospitals’ decisions to deny
admitting privileges. 250 F. Supp. 3d, at 48–49, 51–53 (col-
lecting evidence). Some hospitals expressly bar anyone
with privileges from performing abortions. App. 1180,
1205. Others are unwilling to extend privileges to abortion
providers as a matter of discretion. Id., at 1127–1129. For
example, Doe 2 testified that he was told not to bother ask-
ing for admitting privileges at University Health in Shreve-
port because of his abortion work. Id., at 383–384. And Doe
1 was told that his abortion work was an impediment to his
application. Id., at 1315–1316.
Still other hospitals have requirements that abortion pro-
viders cannot satisfy because of the hostility they face in
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Opinion of BREYER, J.
Louisiana. Many Louisiana hospitals require applicants to
identify a doctor (called a “covering physician”) willing to
serve as a backup should the applicant admit a patient and
then for some reason become unavailable. See Record 9154,
9374, 9383, 9478, 9667, 10302, 10481, 10637, 10659–10661,
10676. The District Court found “that opposition to abor-
tion can present a major, if not insurmountable hurdle, for
an applicant getting the required covering physician.” 250
F. Supp. 3d, at 49; cf. Whole Woman’s Health, 579 U. S., at
___ (slip op., at 25) (citing testimony describing similar
problems faced by Texas providers seeking covering physi-
cians). Doe 5 is a board-certified OB/GYN who had been
practicing for more than nine years at the time of trial. Of
the thousands of abortions he performed in the three years
prior to the District Court’s decision, not one required a di-
rect transfer to a hospital. App. 1134. Yet he was unable
to secure privileges at three Baton Rouge hospitals because
he could not find a covering physician willing to be publicly
associated with an abortion provider. Id., at 1335–1336.
Doe 3, a board-certified OB/GYN with nearly 45 years of
experience, testified that he, too, had difficulty arranging
coverage because of his abortion work. Id., at 200–202.
Just as in Whole Woman’s Health, the experiences of the
individual doctors in this case support the District Court’s
factual finding that Louisiana’s admitting-privileges re-
quirement, like that in Texas’ law, serves no “ ‘relevant cre-
dentialing function.’ ” 250 F. Supp. 3d, at 87 (quoting Whole
Woman’s Health, 579 U. S., at ___ (slip op., at 25).
2
The Court of Appeals found another explanation for the
doctors’ inability to obtain privileges more compelling. It
conceded that Doe 1 would not be able to obtain admitting
privileges in spite of his good-faith attempts. It concluded,
however, that Does 2, 5, and 6 had acted in bad faith. 905
24 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
F. 3d, at 807. The problem is that the law requires appel-
late courts to review a trial court’s findings under the def-
erential clear-error standard we have described. See supra,
at 17–18. Our review of the record convinces us that the
Court of Appeals misapplied that standard.
JUSTICE ALITO does not dispute that the District Court’s
findings are not “clearly erroneous.” He argues instead that
both the District Court and the Court of Appeals applied
the wrong legal standard to the record in this case. By ask-
ing whether the doctors acted in “good faith,” he contends,
the courts below failed to account for the doctors’ supposed
“incentive to do as little as” possible to obtain conforming
privileges. Post, at 12–14 (dissenting opinion); cf. post, at
11–12 (GORSUCH, J., dissenting). But that is not a legal ar-
gument at all. It is simply another way of saying that the
doctors acted in bad faith. The District Court, after moni-
toring the doctors’ efforts for a year and a half, found other-
wise. And “[w]hen the record is examined in light of the
appropriately deferential standard, it is apparent that it
contains nothing that mandates a finding that the District
Court’s conclusion was clearly erroneous.” Anderson, 470
U. S., at 577.
Doe 2
The District Court found that Doe 2 tried in good faith to
get admitting privileges within 30 miles of his Shreveport-
area clinic. 250 F. Supp. 3d, at 68. The Court of Appeals
thought that conclusion clearly erroneous for three reasons.
First, the appeals court suggested that Doe 2 failed to
submit the data needed to process his application to Boss-
ier’s Willis-Knighton Health Center. 905 F. 3d, at 808. It
is true that Doe 2 submitted no additional information in
response to the last letter he received from Willis-Knighton.
But the record explains that failure. Doe 2 reasonably be-
lieved there was no point in doing so. The hospital’s letter
Cite as: 591 U. S. ____ (2020) 25
Opinion of BREYER, J.
explained that the data Doe 2 had already “submitted sup-
ports the outpatient [abortion] procedures you per-
form[ed].” App. 1435. But, the letter added, this data did
“not support your request for hospital privileges” because it
did not allow the hospital to “evaluate patient admissions
and management, consultations, and procedures per-
formed.” Ibid. Doe 2 testified at trial that he understood
this to mean that he would have to submit records of hospi-
tal admissions, even though he had not “done any in-hospi-
tal work in ten years.” Id., at 387; see id., at 437 (“I’ve ex-
plained that that information doesn’t exist”). Doe 2’s
understanding was consistent with Willis-Knighton’s simi-
lar letter to Doe 1, which explicitly stated that “we require
that you submit documentation of hospital admissions and
management of patients . . . .” Id., at 1436. The record also
shows that Doe 2 could not have maintained the “adequate
number of inpatient contacts” Willis-Knighton requires to
support continued privileges. Record 9640; see App. 387–
390, 404. JUSTICE ALITO faults Doe 2 for failing to pursue
an application for “courtesy staff ” privileges. See post, at
18–19. For one thing, it is far from clear that courtesy priv-
ileges entitle a physician to admit patients, as Act 620 re-
quires. Compare, e.g., Record 9640 with id., at 9643. For
another, that would not solve the problem that Doe 2 lacked
the required in-hospital experience. JUSTICE ALITO won-
ders whether Willis-Knighton might have conferred cour-
tesy privileges even without that experience. But the fac-
tors the hospital considers for both tiers of privileges are
facially identical. Id., at 9669. We have no license to re-
verse a trial court’s factual findings based on speculative
inferences from facts not in evidence.
Second, the Court of Appeals found Doe 2’s explanation
that Christus Schumpert Hospital “would not staff an abor-
tion provider” to be “blatantly contradicted by the record.”
905 F. 3d, at 808. The record, however, contains Christus’
bylaws. They state that “[n]o activity prohibited by” the
26 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
Ethical and Religious Directives to which the hospital sub-
scribes “shall be engaged in by any Medical Staff appointee
or any other person exercising clinical privileges at the
Health System.” App. 1180. These directives provide that
abortion “is never permitted.” Id., at 1205. And they warn
against “the danger of scandal in any association with abor-
tion providers.” Ibid.
The State suggests that the Court of Appeals, in speaking
of a “contradic[tion],” was referring to the fact that Doe 3
had admitting privileges at Christus, as had Doe 2 at an
earlier time. Brief for Respondent 75. Doe 3 testified, how-
ever, that he did not know whether Christus was “aware
that I was performing abortions” and that he did not “feel
like testing the waters there”—i.e., by “asking [Christus]
how they would feel” if they were aware that he “was per-
forming abortions.” App. 273. And nothing in the record
suggests that Christus, 10 years earlier, was aware of Doe
2’s connection with abortion. JUSTICE ALITO imagines a
number of ways that Christus may have become aware of
Doe 2 or Doe 3’s abortion practice. See post, at 17–18, and
n. 10 (dissenting opinion). The State apparently did not see
fit to test these theories or probe the doctors’ accounts on
cross-examination, however. And the District Court’s find-
ing of good faith is plainly permissible on the record before
us.
Finally, the Court of Appeals faulted Doe 2 for failing to
apply to Minden Hospital. The record also explains that
decision. Minden subjects all new appointees to “not less
than” six months of “focused professional practice evalua-
tion.” Record 9281; see also id., at 9252. That evaluation
requires an assessment of the provider’s in-hospital work.
See supra, at 22. Doe 2 could not meet that requirement
because, as we have said, Doe 2 does not do in-hospital
work, and only two of his patients in the past five years
have required hospitalization. App. 400. Moreover, Min-
den’s bylaws express a preference for applicants whom
Cite as: 591 U. S. ____ (2020) 27
Opinion of BREYER, J.
“members of the current Active Staff of the Hospital” have
recommended. Id., at 1211. Doe 2 testified that Minden
Hospital was “a smaller hospital,” “very close to the [geo-
graphic] limits,” where he “[did]n’t really know anyone.”
Id., at 454. He applied to those hospitals where he believed
he had the highest likelihood of success. Ibid. Given this
evidence, the Fifth Circuit was wrong to conclude that the
District Court’s findings in respect to Doe 2 were “clearly
erroneous.” See Anderson, 470 U. S., at 575.
Doe 5
The District Court found that Doe 5 was unable to obtain
admitting privileges at three hospitals in range of his Baton
Rouge clinic in spite of his good-faith efforts to satisfy each
hospital’s requirement that he find a covering physician.
250 F. Supp. 3d, at 76; see App. 1334–1335 (Women’s Hos-
pital); Record 2953 (Baton Rouge General), 10659–10661
(Lane Regional). The Court of Appeals disagreed. It
thought that Doe 5’s efforts reflected a “lackluster ap-
proach” because he asked only one doctor to cover him. 905
F. 3d, at 809.
The record shows, however, that Doe 5 asked the doctor
most likely to respond affirmatively: the doctor with whom
Doe 5’s Baton Rouge clinic already had a patient transfer
agreement. App. 1135. Yet Doe 5 testified that even this
doctor was “too afraid to be my covering physician at the
hospital” because, while the transfer agreement could ap-
parently be “kept confidential,” he feared that an agree-
ment to serve as a covering physician would not remain a
secret. Id., at 1135–1136. And, if the matter became well
known, the doctor whom Doe 5 asked worried that it could
make him a target of threats and protests. Ibid.
Doe 5 was familiar with the problem. Anti-abortion pro-
tests had previously forced him to leave his position as a
staff member of a hospital northeast of Baton Rouge. Id.,
at 1137–1138, 1330. And activists had picketed the school
28 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
attended by the children of a former colleague, who then
stopped performing abortions as a result. Record 14036–
14037.
With his own experience and their existing relationship
in mind, Doe 5 could have reasonably thought that, if this
doctor wouldn’t serve as his covering physician, no one
would. And it was well within the District Court’s discre-
tion to credit that reading of the record. Cf. Cooper, 581
U. S., at ___ (slip op., at 4). Doe 5’s testimony was inter-
nally consistent and consistent with what the District
Court called the “mountain of un-contradicted and un-ob-
jected to evidence” in the record that supported its general
finding “that opposition to abortion can present a major, if
not insurmountable hurdle, for an applicant getting the re-
quired covering physician,” including Doe 3’s similar expe-
rience. 250 F. Supp. 3d, at 51, 49; see id., at 51–53; App.
200–202.
The Court of Appeals did not address this general finding
or the evidence the District Court relied on to support it,
and neither do our dissenting colleagues. Cf. post, at 20–21
(opinion of ALITO, J.); post, at 12 (opinion of GORSUCH, J.).
The Court of Appeals pointed to what it described as Doe
4’s testimony that “finding a covering physician is not
overly burdensome.” 905 F. 3d, at 809. Doe 4’s actual tes-
timony was that he did not believe requiring doctors to ob-
tain a covering physician was “an overburdensome require-
ment for admitting privileges.” Record 14154. In context,
that statement is most naturally read as saying that such a
requirement was reasonable, not that it was easy to fulfill.
In fact, Doe 4 testified that he had been unable to apply to
two hospitals for admitting privileges because he could not
find a covering physician. Id., at 14154–14155. Moreover,
Doe 4’s statement referred to his efforts to obtain admitting
privileges in New Orleans, not in Baton Rouge. Ibid. Doe 5
testified that he could more easily find a covering physician
Cite as: 591 U. S. ____ (2020) 29
Opinion of BREYER, J.
in New Orleans (where he did obtain privileges) because at-
titudes toward abortion there were less hostile than in Ba-
ton Rouge, so the doctors’ testimony would be consistent
even under the Fifth Circuit’s view. App. 1335–1336. Once
again, the appeals court’s conclusion cannot be squared
with the standard of review. Cf. Anderson, 470 U. S., at
575.
Doe 6
Finally, the District Court found that, notwithstanding
his good-faith efforts, Doe 6 would not be able to obtain ad-
mitting privileges within 30 miles of the clinic in New Or-
leans where he worked. The Court of Appeals did not ques-
tion Doe 6’s decision not to apply to Tulane Hospital. Nor
did it take issue with the District Court’s finding that his
application to East Jefferson Hospital had been denied
de facto through no fault of his own. 250 F. Supp. 3d, at 77;
App. 54. But the appeals court reversed the District Court’s
finding on the ground that Doe 6 should have (but did not)
apply for admitting privileges at seven other hospitals in
New Orleans, including Touro Hospital, which had granted
limited privileges to Doe 5. 905 F. 3d, at 809–810.
Doe 6 testified that he did not apply to other hospitals
because he did not admit a sufficient number of patients to
receive active admitting privileges. App. 1310. As we have
explained, supra, at 21–22, Doe 6 provides only medication
abortions involving no surgical intervention. See App.
1308. The State’s own admitting-privileges expert, Dr. Rob-
ert Marier, testified that a doctor in Doe 6’s position would
“probably not” be able to obtain “active admitting and sur-
gical privileges” at any hospital. Id., at 884; see 250
F. Supp. 3d, at 44 (finding Dr. Marier “generally well qual-
ified” to express an opinion on “the issue of admitting priv-
ileges and hospital credentialing”).
The record contains the bylaws of four of the seven hospi-
tals to which the Court of Appeals referred. All four directly
30 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
support the testimony of Doe 6 and the State’s expert.
Three hospitals require doctors who receive admitting priv-
ileges to undergo a process of “focused professional practice
evaluation.” See Record 2635, 2637, 2681 (Touro Hospital),
9054 (New Orleans East Hospital), 10755 (East Jefferson
Hospital). As we have explained, this evaluation requires
hospital staff to observe a doctor with admitting privileges
while he or she performs a certain number of procedures.
See supra, at 22. If the doctor admits no patients (and Doe
6 has no patients requiring admission), there is nothing to
observe. Another hospital requires physicians to admit a
minimum number of patients, either initially or after re-
ceiving admitting privileges. Record 9150–9153 (West Jef-
ferson Hospital). And one requires both. Id., at 9040, 9069
(New Orleans East Hospital). The record apparently is si-
lent as to the remaining three hospitals, but that silence
cannot contradict the well-supported testimony of Doe 6
and the State’s expert that Doe 6 would not receive admit-
ting privileges from any of them. Good faith does not re-
quire an exercise in futility.
We recognize that Doe 5 was able to secure limited ad-
mitting privileges at Touro Hospital, to which Doe 6 did not
apply. But, unlike Doe 6, Doe 5 primarily performs surgical
abortions. App. 1330. And while Doe 5 was a hospital-
based physician as recently as 2012, Doe 6 has not held
privileges at any hospital since 2005. Id., at 1310, 1329.
Doe 5’s success therefore does not directly contradict the ev-
idence that we have described in respect to Doe 6 or render
the District Court’s conclusion as to Doe 6 clearly errone-
ous. And, as we have said, “[a] finding that is ‘plausible’ in
light of the full record—even if another is equally or more
so—must govern.” Cooper, 581 U. S., at ___ (slip op., at 4).
Without actually disputing any of the evidence we have
discussed, JUSTICE ALITO maintains that the plaintiffs
could have introduced still more evidence to support the
District Court’s determination. See post, at 20. As we have
Cite as: 591 U. S. ____ (2020) 31
Opinion of BREYER, J.
said, however, “the trial on the merits should be ‘the “main
event” . . . rather than a “tryout on the road.” ’ ” Anderson,
470 U. S., at 575. “[T]he parties to a case on appeal have
already been forced to concentrate their energies and re-
sources on persuading the trial judge that their account of
the facts is the correct one; requiring them to persuade
three more judges at the appellate level”—let alone another
nine in this Court—“is requiring too much.” Ibid.Other Doctors
Finally, JUSTICE ALITO and JUSTICE GORSUCH suggest
that the District Court failed to account for the possibility
that new abortion providers might eventually replace Does
1, 2, 3, 5, and 6. See post, at 11–12 (opinion of ALITO, J.);
post, at 11–13 (opinion of GORSUCH, J.). But the Court of
Appeals did not dispute, and the record supports, the Dis-
trict Court’s additional finding that, for “the same reasons
that Does 1, 2, 4, 5, and 6 have had difficulties getting active
admitting privileges, reasons unrelated to their competence
. . . it is unlikely that the [a]ffected clinics will be able to
comply with the Act by recruiting new physicians who have
or can obtain admitting privileges.” 250 F. Supp. 3d, at 82.
B
Act 620’s Impact on Abortion Access
The District Court drew from the record evidence, includ-
ing the factual findings we have just discussed, several con-
clusions in respect to the burden that Act 620 is likely to
impose upon women’s ability to access abortions in Louisi-
ana. To better understand the significance of these conclu-
sions, the reader should keep in mind the geographic distri-
bution of the doctors and their clinics. Figure 1 shows the
distribution of doctors and clinics at the time of the District
Court’s decision. Figure 2 shows the projected distribution
if the admitting-privileges requirement were enforced, as
32 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
found by the District Court. The figures in parentheses in-
dicate the approximate number of abortions each physician
performed annually, according to the District Court.
Figure 1 — Distribution of Abortion Clinics and Providers
at the Time of the District Court’s Decision
Cite as: 591 U. S. ____ (2020) 33
Opinion of BREYER, J.
Figure 2 — Projected Distribution of Abortion Clinics and
Providers Following Enforcement of Act 620
1
As we have seen, enforcing the admitting-privileges re-
quirement would eliminate Does 1, 2, and 6. The District
Court credited Doe 3’s uncontradicted, in-court testimony
that he would stop performing abortions if he was the last
provider in northern Louisiana. 250 F. Supp. 3d, at 79; see
App. 263–265. So the departure of Does 1 and 2 would also
eliminate Doe 3. That would leave only Doe 5. And Doe 5’s
inability to obtain privileges in the Baton Rouge area would
leave Louisiana with just one clinic with one provider to
serve the 10,000 women annually who seek abortions in the
State. 250 F. Supp. 3d, at 80, 87–88; cf. Whole Woman’s
Health, 579 U. S., at ___ (slip op., at 26).
Working full time in New Orleans, Doe 5 would be able
to absorb no more than about 30% of the annual demand for
abortions in Louisiana. App. 1134, 1331; see id., at 1129.
And because Doe 5 does not perform abortions beyond 18
weeks, women between 18 weeks and the state legal limit
34 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
of 20 weeks would have little or no way to exercise their
constitutional right to an abortion. Id., at 1330–1331.
Those women not altogether prevented from obtaining an
abortion would face other burdens. As in Whole Woman’s
Health, the reduction in abortion providers caused by Act
620 would inevitably mean “longer waiting times, and in-
creased crowding.” 579 U. S., at ___ (slip op., at 26). The
District Court heard testimony that delays in obtaining an
abortion increase the risk that a woman will experience
complications from the procedure and may make it impos-
sible for her to choose a noninvasive medication abortion.
App. 220, 290, 312–313; see also id., at 1139, 1305, 1313,
1316, 1323.
Even if they obtain an appointment at a clinic, women
who might previously have gone to a clinic in Baton Rouge
or Shreveport would face increased driving distances. New
Orleans is nearly a five hour drive from Shreveport; it is
over an hour from Baton Rouge; and Baton Rouge is more
than four hours from Shreveport. The impact of those in-
creases would be magnified by Louisiana’s requirement
that every woman undergo an ultrasound and receive man-
datory counseling at least 24 hours before an abortion. La.
Rev. Stat. Ann. §40:1061.10(D). A Shreveport resident
seeking an abortion who might previously have obtained
care at one of that city’s local clinics would either have to
spend nearly 20 hours driving back and forth to Doe 5’s
clinic twice, or else find overnight lodging in New Orleans.
As the District Court stated, both experts and laypersons
testified that the burdens of this increased travel would fall
disproportionately on poor women, who are least able to ab-
sorb them. App. 106–107, 178, 502–508, 543; see also id.,
at 311–312.
2
We note that the Court of Appeals also faulted the Dis-
Cite as: 591 U. S. ____ (2020) 35
Opinion of BREYER, J.
trict Court for factoring Doe 3’s departure into its calcula-
tions. The appeals court thought that Doe 3’s personal
choice to stop practicing could not be attributed to Act 620.
905 F. 3d, at 810–811. That is beside the point. Even if we
pretended as though (contrary to the record evidence) Doe
3 would continue to provide abortions at Shreveport-based
Hope Clinic, the record nonetheless supports the District
Court’s alternative finding that Act 620’s burdens would re-
main substantial. See 250 F. Supp. 3d, at 80–81, 84, 87.
The record tells us that Doe 3 is presently able to see
roughly 1,000–1,500 women annually. Id., at 81; see App.
207, 243–244. Doe 3 testified that this was in addition to
“working very, very long hours maintaining [his] private
[OB/GYN] practice.” Id., at 265, 1323; see id., at 118, 1147.
And, the District Court found that Doe 5 can perform no
more than roughly 3,000 abortions annually. See supra, at
33. So even if Doe 3 remained active in Shreveport, the an-
nual demand for abortions in Louisiana would be more than
double the capacity. And although the availability of abor-
tions in Shreveport might lessen the driving distances faced
by some women, it would still leave thousands of Louisiana
women with no practical means of obtaining a safe, legal
abortion, and it would not meaningfully address the health
risks associated with crowding and delay for those able to
secure an appointment with one of the State’s two remain-
ing providers.
* * *
Taken together, we think that these findings and the ev-
idence that underlies them are sufficient to support the Dis-
trict Court’s conclusion that Act 620 would place substan-
tial obstacles in the path of women seeking an abortion in
Louisiana.
36 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
V
Benefits
We turn finally to the law’s asserted benefits. The Dis-
trict Court found that there was “ ‘no significant health-re-
lated problem that the new law helped to cure.’ ” 250
F. Supp. 3d, at 86 (quoting Whole Woman’s Health, 579
U. S., at ___ (slip op., at 22)). It found that the admitting-
privileges requirement “[d]oes [n]ot [p]rotect [w]omen’s
[h]ealth,” provides “no significant health benefits,” and
makes no improvement to women’s health “compared to
prior law.” 250 F. Supp. 3d, at 86 (boldface deleted). Our
examination of the record convinces us that these findings
are not “clearly erroneous.”
First, the District Court found that the admitting-privi-
leges requirement serves no “relevant credentialing func-
tion.” Id., at 87 (quoting Whole Woman’s Health, 579 U. S.,
at ___ (slip op., at 25)). As we have seen, hospitals can, and
do, deny admitting privileges for reasons unrelated to a doc-
tor’s ability safely to perform abortions. And Act 620’s re-
quirement that physicians obtain privileges at a hospital
within 30 miles of the place where they perform abortions
further constrains providers for reasons that bear no rela-
tionship to competence.
Moreover, while “competency is a factor” in credentialing
decisions, 250 F. Supp. 3d, at 46, hospitals primarily focus
upon a doctor’s ability to perform the inpatient, hospital-
based procedures for which the doctor seeks privileges—not
outpatient abortions. App. 877, 1373; see id., at 907; Brief
for Medical Staff Professionals as Amici Curiae 26; Brief for
American College of Obstetricians and Gynecologists et al.
as Amici Curiae 12. Indeed, the State’s admitting-privi-
leges expert, Dr. Robert Marier, testified that, when he
served as the Executive Director of Louisiana’s Board of
Medical Examiners, he concurred in the Board’s position
that a physician was competent to perform first-trimester
Cite as: 591 U. S. ____ (2020) 37
Opinion of BREYER, J.
surgical abortions and to “recognize and address complica-
tions from the procedure” so long as they had completed an
accredited residency in obstetrics and gynecology or been
trained in abortion procedures during another residency—
irrespective of their affiliation with any hospital. App. 872–
873, 1305; cf. post, at 5–6 (ALITO, J., dissenting). And noth-
ing in the record indicates that the background vetting for
admitting privileges adds significantly to the vetting that
the State Board of Medical Examiners already provides.
250 F. Supp. 3d, at 87; App. 1355–1356, 1358–1359.
Second, the District Court found that the admitting-priv-
ileges requirement “does not conform to prevailing medical
standards and will not improve the safety of abortion in
Louisiana.” 250 F. Supp. 3d, at 64; see id., at 64–66. As in
Whole Woman’s Health, the expert and lay testimony pre-
sented at trial shows that:
 “Complications from surgical abortion are relatively
rare,” and “[t]hey very rarely require transfer to a
hospital or emergency room and are generally not
serious.” App. 287; see id., at 129; cf. Whole
Woman’s Health, 579 U. S., at ___ (slip op., at 22–
23).
 For those patients who do experience complications
at the clinic, the transfer agreement required by ex-
isting law is “sufficient to ensure continuity of care
for patients in an emergency.” App. 1050; see id., at
194, 330–332, 1059.
 The “standard protocol” when a patient experiences
a complication after returning home from the clinic
is to send her “to the hospital that is nearest and
able to provide the service that the patient needs,”
which is not necessarily a hospital within 30 miles
of the clinic. Id., at 351; see id., at 115–116, 180,
793; La. Rev. Stat. Ann. §40:1061.10(A)(2)(b)(ii) (re-
quiring abortion providers to furnish patients with
38 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
the name and telephone number of the hospital
nearest to their home); cf. Whole Woman’s Health,
579 U. S., at ___ (slip op., at 23).
As in Whole Woman’s Health, the State introduced no ev-
idence “showing that patients have better outcomes when
their physicians have admitting privileges” or “of any in-
stance in which an admitting privileges requirement would
have helped even one woman obtain better treatment.” 250
F. Supp. 3d, at 64; Whole Woman’s Health, 579 U. S., at ___
– ___ (slip op., at 23–24); see also Centers for Medicare and
Medicaid Services, 84 Fed. Reg. 51790–51791 (2019) (“Un-
der modern procedures, emergency responders (and pa-
tients themselves) take patients to hospital emergency
rooms without regard to prior agreements between partic-
ular physicians and particular hospitals”); Brief for Ameri-
can College of Obstetricians and Gynecologists et al. as
Amici Curiae 6 (local admitting-privileges requirements for
abortion providers offer no medical benefit and do not
meaningfully advance continuity of care).
VI
Conclusion
We conclude, in light of the record, that the District
Court’s significant factual findings—both as to burdens and
as to benefits—have ample evidentiary support. None is
“clearly erroneous.” Given the facts found, we must also
uphold the District Court’s related factual and legal deter-
minations. These include its determination that Louisi-
ana’s law poses a “substantial obstacle” to women seeking
an abortion; its determination that the law offers no signif-
icant health-related benefits; and its determination that
the law consequently imposes an “undue burden” on a
woman’s constitutional right to choose to have an abortion.
We also agree with its ultimate legal conclusion that, in
light of these findings and our precedents, Act 620 violates
the Constitution.
Cite as: 591 U. S. ____ (2020) 39
Opinion of BREYER, J.
VII
As a postscript, we explain why we have found unconvinc-
ing several further arguments that the State has made.
First, the State suggests that the record supports the Court
of Appeals’ conclusion that Act 620 poses no substantial ob-
stacle to the abortion decision. See Brief for Respondent 73,
80. This argument misconceives the question before us.
“The question we must answer” is “not whether the [Fifth]
Circuit’s interpretation of the facts was clearly erroneous,
but whether the District Court’s finding[s were] clearly er-
roneous.” Anderson, 470 U. S., at 577 (emphasis added). As
we have explained, we think the District Court’s factual
findings here are plausible in light of the record as a whole.
Nothing in the State’s briefing furnishes a basis to disturb
that conclusion.
Second, the State says that the record does not show that
Act 620 will burden every woman in Louisiana who seeks
an abortion. Brief for Respondent 69–70 (citing United
States v. Salerno, 481 U. S. 739, 745 (1987)). True, but be-
side the point. As we stated in Casey, a State’s abortion-
related law is unconstitutional on its face if “it will operate
as a substantial obstacle to a woman’s choice to undergo an
abortion” in “a large fraction of the cases in which [it] is rel-
evant.” 505 U. S., at 895 (majority opinion). In Whole
Woman’s Health, we reaffirmed that standard. We made
clear that the phrase refers to a large fraction of “those
women for whom the provision is an actual rather than an
irrelevant restriction.” 579 U. S., at ___ (slip op., at 39)
(quoting Casey, 505 U. S., at 895; brackets omitted). That
standard, not an “every woman” standard, is the standard
that must govern in this case.
Third, the State argues that Act 620 would not make it
“nearly impossible” for a woman to obtain an abortion.
Brief for Respondent 71–72. But, again, the words “nearly
impossible” do not describe the legal standard that governs
here. Since Casey, we have repeatedly reiterated that the
40 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of BREYER, J.
plaintiff ’s burden in a challenge to an abortion regulation
is to show that the regulation’s “purpose or effect” is to
“plac[e] a substantial obstacle in the path of a woman seek-
ing an abortion of a nonviable fetus.” 505 U. S., at 877 (plu-
rality opinion); see Whole Woman’s Health, 579 U. S., at ___
(slip op., at 8); Gonzales, 550 U. S., at 156; Stenberg, 530
U. S., at 921; Mazurek, 520 U. S., at 971.
Finally, the State makes several arguments about the
standard of review that it would have us apply in cases
where a regulation is found not to impose a substantial
obstacle to a woman’s choice. Brief for Respondent 60–66.
That, however, is not this case. The record here establishes
that Act 620’s admitting-privileges requirement places a
substantial obstacle in the path of a large fraction of those
women seeking an abortion for whom it is a relevant
restriction.
* * *
This case is similar to, nearly identical with, Whole
Woman’s Health. And the law must consequently reach a
similar conclusion. Act 620 is unconstitutional. The Court
of Appeals’ judgment is erroneous. It is
Reversed.
Cite as: 591 U. S. ____ (2020) 1
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1323 and 18–1460
_________________
JUNE MEDICAL SERVICES L. L. C., ET AL.,
PETITIONERS
18–1323 v.
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, PETITIONER
18–1460 v.
JUNE MEDICAL SERVICES L. L. C., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 29, 2020]
CHIEF JUSTICE ROBERTS, concurring in the judgment.
In July 2013, Texas enacted a law requiring a physician
performing an abortion to have “active admitting privileges
at a hospital . . . located not further than 30 miles from the
location at which the abortion is performed.” Tex. Health
& Safety Code Ann. §171.0031(a)(1)(A) (West Cum. Supp.
2019). The law caused the number of facilities providing
abortions to drop in half. In Whole Woman’s Health v. Hel-
lerstedt, 579 U. S. ___ (2016), the Court concluded that
Texas’s admitting privileges requirement “places a sub-
stantial obstacle in the path of women seeking a previabil-
ity abortion” and therefore violated the Due Process Clause
of the Fourteenth Amendment. Id., at ___ (slip op., at 2)
(citing Planned Parenthood of Southeastern Pa. v. Casey,
2 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
505 U. S. 833, 878 (1992) (plurality opinion)).
I joined the dissent in Whole Woman’s Health and con-
tinue to believe that the case was wrongly decided. The
question today however is not whether Whole Woman’s
Health was right or wrong, but whether to adhere to it in
deciding the present case. See Moore v. Texas, 586 U. S.
___, ___ (2019) (ROBERTS, C. J., concurring) (slip op., at 1).
Today’s case is a challenge from several abortion clinics
and providers to a Louisiana law nearly identical to the
Texas law struck down four years ago in Whole Woman’s
Health. Just like the Texas law, the Louisiana law requires
physicians performing abortions to have “active admitting
privileges at a hospital . . . located not further than thirty
miles from the location at which the abortion is performed.”
La. Rev. Stat. Ann. §40:1061.10(A)(2)(a) (West Cum. Supp.
2020). Following a six-day bench trial, the District Court
found that Louisiana’s law would “result in a drastic reduc-
tion in the number and geographic distribution of abortion
providers.” June Medical Services LLC v. Kliebert, 250
F. Supp. 3d 27, 87 (MD La. 2017). The law would reduce
the number of clinics from three to “one, or at most two,”
and the number of physicians providing abortions from five
to “one, or at most two,” and “therefore cripple women’s
ability to have an abortion in Louisiana.” Id., at 87–88.
The legal doctrine of stare decisis requires us, absent spe-
cial circumstances, to treat like cases alike. The Louisiana
law imposes a burden on access to abortion just as severe
as that imposed by the Texas law, for the same reasons.
Therefore Louisiana’s law cannot stand under our prece-
dents.
I
Stare decisis (“to stand by things decided”) is the legal
term for fidelity to precedent. Black’s Law Dictionary 1696
(11th ed. 2019). It has long been “an established rule to
abide by former precedents, where the same points come
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in judgment
again in litigation; as well to keep the scale of justice even
and steady, and not liable to waver with every new judge’s
opinion.” 1 W. Blackstone, Commentaries on the Laws of
England 69 (1765). This principle is grounded in a basic
humility that recognizes today’s legal issues are often not
so different from the questions of yesterday and that we are
not the first ones to try to answer them. Because the “pri-
vate stock of reason . . . in each man is small, . . . individu-
als would do better to avail themselves of the general bank
and capital of nations and of ages.” 3 E. Burke, Reflections
on the Revolution in France 110 (1790).
Adherence to precedent is necessary to “avoid an arbi-
trary discretion in the courts.” The Federalist No. 78,
p. 529 (J. Cooke ed. 1961) (A. Hamilton). The constraint of
precedent distinguishes the judicial “method and philoso-
phy from those of the political and legislative process.”
Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J.
334 (1944).
The doctrine also brings pragmatic benefits. Respect for
precedent “promotes the evenhanded, predictable, and con-
sistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and per-
ceived integrity of the judicial process.” Payne v. Tennessee,
501 U. S. 808, 827 (1991). It is the “means by which we
ensure that the law will not merely change erratically, but
will develop in a principled and intelligible fashion.”
Vasquez v. Hillery, 474 U. S. 254, 265 (1986). In that way,
“stare decisis is an old friend of the common lawyer.” Jack-
son, supra, at 334.
Stare decisis is not an “inexorable command.” Ramos v.
Louisiana, 590 U. S. ___, ___ (2020) (slip op., at 20) (inter-
nal quotation marks omitted). But for precedent to mean
anything, the doctrine must give way only to a rationale
that goes beyond whether the case was decided correctly.
The Court accordingly considers additional factors before
overruling a precedent, such as its adminstrability, its fit
4 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
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in judgment
with subsequent factual and legal developments, and the
reliance interests that the precedent has engendered. See
Janus v. State, County, and Municipal Employees, 585 U. S.
___, ____–____ (2018) (slip op., at 34–35).
Stare decisis principles also determine how we handle a
decision that itself departed from the cases that came be-
fore it. In those instances, “[r]emaining true to an ‘intrinsi-
cally sounder’ doctrine established in prior cases better
serves the values of stare decisis than would following” the
recent departure. Adarand Constructors, Inc. v. Peña, 515
U. S. 200, 231 (1995) (plurality opinion). Stare decisis is
pragmatic and contextual, not “a mechanical formula of ad-
herence to the latest decision.” Helvering v. Hallock, 309
U. S. 106, 119 (1940).
II
A
Both Louisiana and the providers agree that the undue
burden standard announced in Casey provides the appro-
priate framework to analyze Louisiana’s law. Brief for Pe-
titioners in No. 18–1323, pp. 45–47; Brief for Respondent in
No. 18–1323, pp. 60–62. Neither party has asked us to re-
assess the constitutional validity of that standard.
Casey reaffirmed “the most central principle of Roe v.
Wade,” “a woman’s right to terminate her pregnancy before
viability.” Casey, 505 U. S., at 871 (plurality opinion).1 At
the same time, it recognized that the State has “important
and legitimate interests in . . . protecting the health of the
pregnant woman and in protecting the potentiality of hu-
man life.” Id., at 875–876 (internal quotation marks and
brackets omitted).
To serve the former interest, the State may, “[a]s with
——————
1 Although parts of Casey’s joint opinion were a plurality not joined by
a majority of the Court, the joint opinion is nonetheless considered the
holding of the Court under Marks v. United States, 430 U. S. 188, 193
(1977), as the narrowest position supporting the judgment.
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any medical procedure,” enact “regulations to further the
health or safety of a woman seeking an abortion.” Id., at
878. To serve the latter interest, the State may, among
other things, “enact rules and regulations designed to en-
courage her to know that there are philosophic and social
arguments of great weight that can be brought to bear in
favor of continuing the pregnancy to full term.” Id., at 872.
The State’s freedom to enact such rules is “consistent with
Roe’s central premises, and indeed the inevitable conse-
quence of our holding that the State has an interest in pro-
tecting the life of the unborn.” Id., at 873.
Under Casey, the State may not impose an undue burden
on the woman’s ability to obtain an abortion. “A finding of
an undue burden is a shorthand for the conclusion that a
state regulation has the purpose or effect of placing a sub-
stantial obstacle in the path of a woman seeking an abor-
tion of a nonviable fetus.” Id., at 877. Laws that do not
pose a substantial obstacle to abortion access are permissi-
ble, so long as they are “reasonably related” to a legitimate
state interest. Id., at 878.
After faithfully reciting this standard, the Court in Whole
Woman’s Health added the following observation: “The rule
announced in Casey . . . requires that courts consider the
burdens a law imposes on abortion access together with the
benefits those laws confer.” 579 U. S., at ___–___ (slip op.,
at 19–20). The plurality repeats today that the undue bur-
den standard requires courts “to weigh the law’s asserted
benefits against the burdens it imposes on abortion access.”
Ante, at 2 (internal quotation marks omitted).
Read in isolation from Casey, such an inquiry could invite
a grand “balancing test in which unweighted factors myste-
riously are weighed.” Marrs v. Motorola, Inc., 577 F. 3d
783, 788 (CA7 2009). Under such tests, “equality of treat-
ment is . . . impossible to achieve; predictability is de-
stroyed; judicial arbitrariness is facilitated; judicial courage
is impaired.” Scalia, The Rule of Law as a Law of Rules, 56
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in judgment
U. Chi. L. Rev. 1175, 1182 (1989).
In this context, courts applying a balancing test would be
asked in essence to weigh the State’s interests in “protect-
ing the potentiality of human life” and the health of the
woman, on the one hand, against the woman’s liberty inter-
est in defining her “own concept of existence, of meaning, of
the universe, and of the mystery of human life” on the other.
Casey, 505 U. S., at 851 (opinion of the Court); id., at 871(plurality opinion) (internal quotation marks omitted).
There is no plausible sense in which anyone, let alone this
Court, could objectively assign weight to such imponderable
values and no meaningful way to compare them if there
were. Attempting to do so would be like “judging whether
a particular line is longer than a particular rock is heavy,”
Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486
U. S. 888, 897 (1988) (Scalia, J., concurring in judgment).
Pretending that we could pull that off would require us to
act as legislators, not judges, and would result in nothing
other than an “unanalyzed exercise of judicial will” in the
guise of a “neutral utilitarian calculus.” New Jersey v.
T. L. O., 469 U. S. 325, 369 (1985) (Brennan, J., concurring
in part and dissenting in part).
Nothing about Casey suggested that a weighing of costs
and benefits of an abortion regulation was a job for the
courts. On the contrary, we have explained that the “tradi-
tional rule” that “state and federal legislatures [have] wide
discretion to pass legislation in areas where there is medi-
cal and scientific uncertainty” is “consistent with Casey.”
Gonzales v. Carhart, 550 U. S. 124, 163 (2007). Casey in-
stead focuses on the existence of a substantial obstacle, the
sort of inquiry familiar to judges across a variety of con-
texts. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573
U. S. 682, 694–695 (2014) (asking whether the government
“substantially burdens a person’s exercise of religion” under
the Religious Freedom Restoration Act); Arizona Free En-
terprise Club’s Freedom Club PAC v. Bennett, 564 U. S. 721,
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in judgment
748 (2011) (asking whether a law “imposes a substantial
burden on the speech of privately financed candidates and
independent expenditure groups”); Murphy v. United Par-
cel Service, Inc., 527 U. S. 516, 521 (1999) (asking, in the
context of the Americans with Disabilities Act, whether an
individual’s impairment “substantially limits one or more
major life activities” (internal quotation marks omitted)).
Casey’s analysis of the various restrictions that were at
issue in that case is illustrative. For example, the opinion
recognized that Pennsylvania’s 24-hour waiting period for
abortions “has the effect of increasing the cost and risk of
delay of abortions,” but observed that the District Court did
not find that the “increased costs and potential delays
amount to substantial obstacles.” 505 U. S., at 886 (joint
opinion of O’Connor, Kennedy, and Souter, JJ.) (internal
quotation marks omitted). The opinion concluded that
“given the statute’s definition of medical emergency,” the
waiting period did not “impose[ ] a real health risk.” Ibid.Because the law did not impose a substantial obstacle, Ca-
sey upheld it. And it did so notwithstanding the District
Court’s finding that the law did “not further the state inter-
est in maternal health.” Ibid. (internal quotation marks
omitted).
Turning to the State’s various recordkeeping and report-
ing requirements, Casey found those requirements do not
“impose a substantial obstacle to a woman’s choice” because
“[a]t most they increase the cost of some abortions by a
slight amount.” Id., at 901. “While at some point increased
cost could become a substantial obstacle,” there was “no
such showing on the record” before the Court. Ibid. The
Court did not weigh this cost against the benefits of the law.
The same was true for Pennsylvania’s parental consent
requirement. Casey held that “a State may require a minor
seeking an abortion to obtain the consent of a parent or
guardian, provided there is an adequate judicial bypass pro-
8 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
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cedure.” Id., at 899 (citing, among other cases, Ohio v. Ak-
ron Center for Reproductive Health, 497 U. S. 502, 510–519
(1990)). Casey relied on precedent establishing that judicial
bypass procedures “prevent another person from having an
absolute veto power over a minor’s decision to have an abor-
tion.” Akron, 497 U. S., at 510. Without a judicial bypass,
parental consent laws impose a substantial obstacle to a mi-
nor’s ability to obtain an abortion and therefore constitute
an undue burden. See Casey, 505 U. S., at 899 (joint opin-
ion).
The opinion similarly looked to whether there was a sub-
stantial burden, not whether benefits outweighed burdens,
in analyzing Pennsylvania’s requirement that physicians
provide certain “truthful, nonmisleading information”
about the nature of the abortion procedure. Id., at 882. The
opinion concluded that the requirement “cannot be consid-
ered a substantial obstacle to obtaining an abortion, and, it
follows, there is no undue burden.” Id., at 883 (emphasis
added).
With regard to the State’s requirement that a physician,
as opposed to a qualified assistant, provide the woman this
information, the opinion reasoned: “Since there is no evi-
dence on this record that requiring a doctor to give the in-
formation as provided by the statute would amount in prac-
tical terms to a substantial obstacle to a woman seeking an
abortion, we conclude that it is not an undue burden.” Id.,at 884–885 (emphasis added). This was so “even if an ob-
jective assessment might suggest that those same tasks
could be performed by others,” meaning the law had little if
any benefit. Id., at 885.
The only restriction Casey found unconstitutional was
Pennsylvania’s spousal notification requirement. On that
score, the Court recited a bevy of social science evidence
demonstrating that “millions of women in this country . . .
may have justifiable fears of physical abuse” or “devastat-
ing forms of psychological abuse from their husbands.” Id.,Cite as: 591 U. S. ____ (2020) 9
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in judgment
at 893 (opinion of the Court). In addition to “physical vio-
lence” and “child abuse,” women justifiably feared “verbal
harassment, threats of future violence, the destruction of
possessions, physical confinement to the home, the with-
drawal of financial support, or the disclosure of the abortion
to family and friends.” Ibid. The spousal notification re-
quirement was “thus likely to prevent a significant number
of women from obtaining an abortion.” Ibid. It did not
“merely make abortions a little more difficult or expensive
to obtain; for many women, it [imposed] a substantial ob-
stacle.” Id., at 893–894. The Court emphasized that it
would not “blind [itself] to the fact that the significant num-
ber of women who fear for their safety and the safety of
their children are likely to be deterred from procuring an
abortion as surely as if the Commonwealth had outlawed
abortion in all cases.” Id., at 894.
The upshot of Casey is clear: The several restrictions that
did not impose a substantial obstacle were constitutional,
while the restriction that did impose a substantial obstacle
was unconstitutional.
To be sure, the Court at times discussed the benefits of
the regulations, including when it distinguished spousal no-
tification from parental consent. See Whole Woman’s
Health, 579 U. S., at ___–___ (slip op., at 19–20) (citing Ca-
sey, 505 U. S., at 887–898 (opinion of the Court); id., at 899–
901 (joint opinion). But in the context of Casey’s governing
standard, these benefits were not placed on a scale opposite
the law’s burdens. Rather, Casey discussed benefits in con-
sidering the threshold requirement that the State have a
“legitimate purpose” and that the law be “reasonably re-
lated to that goal.” Id., at 878 (plurality opinion); id., at 882(joint opinion).
So long as that showing is made, the only question for a
court is whether a law has the “effect of placing a substan-
tial obstacle in the path of a woman seeking an abortion of
a nonviable fetus.” Id., at 877 (plurality opinion). Casey
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repeats that “substantial obstacle” standard nearly verba-
tim no less than 15 times. Id., at 846, 894, 895 (opinion of
the Court); id., at 877, 878 (plurality opinion); id., at 883,
884, 885, 886, 887, 901 (joint opinion).2
The only place a balancing test appears in Casey is in Jus-
tice Stevens’s partial dissent. “Weighing the State’s inter-
est in potential life and the woman’s liberty interest,” Jus-
tice Stevens would have gone further than the plurality to
strike down portions of the State’s informed consent re-
quirements and 24-hour waiting period. Id., at 916–920
(opinion concurring in part and dissenting in part). But
that approach did not win the day.
Mazurek v. Armstrong places this understanding of Ca-
sey’s undue burden standard beyond doubt. Mazurek in-
volved a challenge to a Montana law restricting the perfor-
mance of abortions to licensed physicians. 520 U. S., at 969.
It was “uncontested that there was insufficient evidence of
a ‘substantial obstacle’ to abortion.” Id., at 972. Therefore,
once the Court found that the Montana Legislature had not
acted with an “unlawful motive,” the Court’s work was com-
plete. Ibid. In fact, the Court found the challengers’ argu-
ment—that the law was invalid because “all health evi-
dence contradicts the [State’s] claim that there is any
——————
2 JUSTICE GORSUCH correctly notes that Casey “expressly disavowed
any test as strict as strict scrutiny.” Post, at 20 (dissenting opinion). But
he certainly is wrong to suggest that my position is in any way incon-
sistent with that disavowal. Applying strict scrutiny would require “any
regulation touching upon the abortion decision” to be the least restrictive
means to further a compelling state interest. Casey, 505 U. S., at 871(plurality opinion) (emphasis added). Casey however recognized that
such a test would give “too little acknowledgement and implementation”
to the State’s “legitimate interests in the health of the woman and in
protecting the potential life within her.” Ibid. Under Casey, abortion
regulations are valid so long as they do not pose a substantial obstacle
and meet the threshold requirement of being “reasonably related” to a
“legitimate purpose.” Id., at 878; id., at 882 (joint opinion).
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health basis for the law”—to be “squarely foreclosed by Ca-
sey itself.” Id., at 973 (internal quotation marks omitted;
emphasis added).
We should respect the statement in Whole Woman’s
Health that it was applying the undue burden standard of
Casey. The opinion in Whole Woman’s Health began by say-
ing, “We must here decide whether two provisions of [the
Texas law] violate the Federal Constitution as interpreted
in Casey.” 579 U. S., at ___ (slip op., at 1). Nothing more.
The Court explicitly stated that it was applying “the stand-
ard, as described in Casey,” and reversed the Court of Ap-
peals for applying an approach that did “not match the
standard that this Court laid out in Casey.” Id., at ___, ___
(slip op., at 19, 20).
Here the plurality expressly acknowledges that we are
not considering how to analyze an abortion regulation that
does not present a substantial obstacle. “That,” the plural-
ity explains, “is not this case.” Ante, at 40. In this case,
Casey’s requirement of finding a substantial obstacle before
invalidating an abortion regulation is therefore a sufficient
basis for the decision, as it was in Whole Woman’s Health.
In neither case, nor in Casey itself, was there call for con-
sideration of a regulation’s benefits, and nothing in Casey
commands such consideration. Under principles of stare de-
cisis, I agree with the plurality that the determination in
Whole Woman’s Health that Texas’s law imposed a substan-
tial obstacle requires the same determination about Louisi-
ana’s law. Under those same principles, I would adhere to
the holding of Casey, requiring a substantial obstacle before
striking down an abortion regulation.
B
Whole Woman’s Health held that Texas’s admitting priv-
ileges requirement placed “a substantial obstacle in the
path of women seeking a previability abortion,” independ-
ent of its discussion of benefits. 579 U. S., at ___ (slip op.,
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at 2) (citing Casey, 505 U. S., at 878 (plurality opinion)).3
Because Louisiana’s admitting privileges requirement
would restrict women’s access to abortion to the same de-
gree as Texas’s law, it also cannot stand under our prece-
dent.4
To begin, the two laws are nearly identical. Prior to en-
actment of the Texas law, abortion providers were required
either to possess local hospital admitting privileges or to
have a transfer agreement with a physician who had such
privileges. Tex. Admin. Code, tit. 25, §139.56(a) (2009).
The new law, adopted in 2013, eliminated the option of hav-
ing a transfer agreement. Providers were required to
“[h]ave active admitting privileges at a hospital . . . located
not further than 30 miles from the location at which the
abortion is performed.” Tex. Health & Safety Code Ann.
§171.0031(a)(1)(A).
Likewise, Louisiana law previously required abortion
providers to have either admitting privileges or a transfer
agreement. La. Admin. Code, tit. 48, pt. I, §4407(A)(3)
——————
3 JUSTICE GORSUCH considers this is a “nonexistent ruling” nowhere to
be found in Whole Woman’s Health. Post, at 19 (dissenting opinion). I
disagree. Whole Woman’s Health first surveyed the benefits of Texas’s
admitting privileges requirement. 579 U. S., at ___–___ (slip op., at 23–
24). The Court then transitioned to examining the law’s burdens: “At the
same time, the record evidence indicates that the admitting-privileges
requirement places a substantial obstacle in the path of a woman’s
choice.” Id., at ___ (slip op., at 24) (internal quotation marks omitted;
emphasis added). And the Court made clear that a law which has the
purpose or effect of placing “a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability” imposes an “undue
burden” and therefore violates the Constitution. Id., at ___ (slip op., at
1) (internal quotation marks omitted; emphasis deleted). Thus the dis-
cussion of benefits in Whole Woman’s Health was not necessary to its
holding.
4 For the reasons the plurality explains, ante, at 11–16, I agree that the
abortion providers in this case have standing to assert the constitutional
rights of their patients.
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(2003), 29 La. Reg. 706–707 (2003). In 2014, Louisiana re-
moved the option of having a transfer agreement. Just like
Texas, Louisiana now requires abortion providers to “[h]ave
active admitting privileges at a hospital . . . located not fur-
ther than thirty miles from the location at which the abor-
tion is performed.” La. Rev. Stat. §40:1061.10(A)(2)(a).
Crucially, the District Court findings indicate that Loui-
siana’s law would restrict access to abortion in just the
same way as Texas’s law, to the same degree or worse. In
Texas, “as of the time the admitting-privileges requirement
began to be enforced, the number of facilities providing
abortions dropped in half, from about 40 to about 20.”
Whole Woman’s Health, 579 U. S., at ___ (slip op., at 24).
Eight abortion clinics closed in the months prior to the law’s
effective date. Ibid. Another 11 clinics closed on the day
the law took effect. Ibid.
Similarly, the District Court found that the Louisiana
law would “result in a drastic reduction in the number and
geographic distribution of abortion providers.” 250 F.
Supp. 3d, at 87. At the time of the District Court’s decision,
there were three clinics and five physicians performing
abortions in Louisiana. Id., at 40, 41. The District Court
found that the new law would reduce “the number of clinics
to one, or at most two,” and the number of physicians in
Louisiana to “one, or at most two,” as well. Id., at 87. Even
in the best case, “the demand for services would vastly ex-
ceed the supply.” Ibid.
Whole Woman’s Health found that the closures of the
abortion clinics led to “fewer doctors, longer waiting times,
and increased crowding.” 579 U. S., at ___ (slip op., at 26).
The Court also found that “the number of women of repro-
ductive age living in a county more than 150 miles from a
provider increased from approximately 86,000 to 400,000
and the number of women living in a county more than 200
miles from a provider from approximately 10,000 to
290,000.” Ibid. (internal quotation marks and alterations
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omitted).
The District Court here likewise found that the Louisiana
law would result in “longer waiting times for appointments,
increased crowding and increased associated health risk.”
250 F. Supp. 3d, at 81. The court found that Louisiana
women already “have difficulty affording or arranging for
transportation and childcare on the days of their clinic vis-
its” and that “[i]ncreased travel distance” would exacerbate
this difficulty. Id., at 83. The law would prove “particularly
burdensome for women living in northern Louisiana . . .
who once could access a clinic in their own area [and] will
now have to travel approximately 320 miles to New Orle-
ans.” Ibid.
In Texas, “common prerequisites to obtaining admitting
privileges that [had] nothing to do with ability to perform
medical procedures,” including “clinical data requirements,
residency requirements, and other discretionary factors,”
made it difficult for well-credentialed abortion physicians
to obtain such privileges. Whole Woman’s Health, 579 U. S.,
at ___ (slip op., at 25). In particular, the Court found that
“hospitals often condition[ed] admitting privileges on
reaching a certain number of admissions per year.” Id., at
___ (slip op., at 24) (internal quotation marks omitted). But
because complications requiring hospitalization are rela-
tively rare, abortion providers were “unlikely to have any
patients to admit” and thus were “unable to maintain ad-
mitting privileges or obtain those privileges for the future.”
Id., at ___ (slip op., at 25).
So too here. “While a physician’s competency is a factor
in assessing an applicant for admitting privileges” in Loui-
siana, “it is only one factor that hospitals consider in
whether to grant privileges.” 250 F. Supp. 3d, at 46. Loui-
siana hospitals “may deny privileges or decline to consider
an application for privileges for myriad reasons unrelated
to competency,” including “the physician’s expected usage
of the hospital and intent to admit and treat patients there,
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ROBERTS C. J., concurring
in judgment
the number of patients the physician has treated in the hos-
pital in the recent past, the needs of the hospital, the mis-
sion of the hospital, or the business model of the hospital.”
Ibid.5
And the District Court found that, as in Texas, Louisiana
“hospitals often grant admitting privileges to a physician
because the physician plans to provide services in the hos-
pital” and that “[i]n general, hospital admitting privileges
are not provided to physicians who never intend to provide
services in a hospital.” Id., at 49. But “[b]ecause, by all
accounts, abortion complications are rare, an abortion pro-
vider is unlikely to have a consistent need to admit pa-
tients.” Id., at 50 (citations omitted).6
Importantly, the District Court found that “since the pas-
sage of [the Louisiana law], all five remaining doctors have
attempted in good faith to comply” with the law by applying
for admitting privileges, yet have had very little success.
Id., at 78 (emphasis added). This finding was necessary to
ensure that the physicians’ inability to obtain admitting
privileges was attributable to the new law rather than a
halfhearted attempt to obtain privileges. Only then could
the District Court accurately identify the Louisiana law’s
burden on abortion access.
The question is not whether we would reach the same
——————
5 JUSTICE ALITO misunderstands my discussion of credentials as focus-
ing on the law’s lack of benefits. See post, at 4 (dissenting opinion). But
my analysis, like Casey, is limited to the law’s effect on the availability
of abortion.
6 I agree with JUSTICE ALITO that the validity of admitting privileges
laws “depend[s] on numerous factors that may differ from State to State.”
Post, at 9 (dissenting opinion). And I agree with JUSTICE GORSUCH that
“[w]hen it comes to the factual record, litigants normally start the case
on a clean slate.” Post, at 14 (dissenting opinion). Appreciating that
others may in good faith disagree, however, I cannot view the record here
as in any pertinent respect sufficiently different from that in Whole
Woman’s Health to warrant a different outcome.
16 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
findings from the same record. These District Court find-
ings “entail[ed] primarily . . . factual work” and therefore
are “review[ed] only for clear error.” U. S. Bank N. A. v.
Village at Lakeridge, LLC, 583 U. S. ___, ___, ___ (2018)
(slip op., at 6, 9). Clear error review follows from a candid
appraisal of the comparative advantages of trial courts and
appellate courts. “While we review transcripts for a living,
they listen to witnesses for a living. While we largely read
briefs for a living, they largely assess the credibility of par-
ties and witnesses for a living.” Taglieri v. Monasky, 907
F. 3d 404, 408 (CA6 2018) (en banc).
We accordingly will not disturb the factual conclusions of
the trial court unless we are “left with the definite and firm
conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U. S. 364, 395
(1948). In my view, the District Court’s work reveals no
such clear error, for the reasons the plurality explains.
Ante, at 19–35. The District Court findings therefore bind
us in this case.
* * *
Stare decisis instructs us to treat like cases alike. The
result in this case is controlled by our decision four years
ago invalidating a nearly identical Texas law. The Louisi-
ana law burdens women seeking previability abortions to
the same extent as the Texas law, according to factual find-
ings that are not clearly erroneous. For that reason, I con-
cur in the judgment of the Court that the Louisiana law is
unconstitutional.
Cite as: 591 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1323 and 18–1460
_________________
JUNE MEDICAL SERVICES L. L. C., ET AL.,
PETITIONERS
18–1323 v.
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, PETITIONER
18–1460 v.
JUNE MEDICAL SERVICES L. L. C., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 29, 2020]
JUSTICE THOMAS, dissenting.
Today a majority of the Court perpetuates its ill-founded
abortion jurisprudence by enjoining a perfectly legitimate
state law and doing so without jurisdiction. As is often the
case with legal challenges to abortion regulations, this suit
was brought by abortionists and abortion clinics. Their sole
claim before this Court is that Louisiana’s law violates the
purported substantive due process right of a woman to
abort her unborn child. But they concede that this right
does not belong to them, and they seek to vindicate no pri-
vate rights of their own. Under a proper understanding of
Article III, these plaintiffs lack standing to invoke our ju-
risdiction.
2 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
Despite the fact that we granted Louisiana’s petition spe-
cifically to address whether “abortion providers [can] be
presumed to have third-party standing to challenge health
and safety regulations on behalf of their patients,” Condi-
tional Cross-Pet. in No. 18–1460, p. i, a majority of the
Court all but ignores the question. The plurality and THE
CHIEF JUSTICE ultimately cast aside this jurisdictional bar-
rier to conclude that Louisiana’s law is unconstitutional un-
der our precedents. But those decisions created the right to
abortion out of whole cloth, without a shred of support from
the Constitution’s text. Our abortion precedents are griev-
ously wrong and should be overruled. Because we have nei-
ther jurisdiction nor constitutional authority to declare
Louisiana’s duly enacted law unconstitutional, I respect-
fully dissent.
I
For most of its history, this Court maintained that pri-
vate parties could not bring suit to vindicate the constitu-
tional rights of individuals who are not before the Court.
Kowalski v. Tesmer, 543 U. S. 125, 135 (2004) (THOMAS, J.,
concurring) (citing Clark v. Kansas City, 176 U. S. 114, 118
(1900)). But in the 20th century, the Court began to deviate
from this traditional rule against third-party standing. See
Truax v. Raich, 239 U. S. 33, 38–39 (1915); Pierce v. Society
of Sisters, 268 U. S. 510, 535–536 (1925). From these devi-
ations emerged our prudential third-party standing doc-
trine, which allows litigants to vicariously assert the con-
stitutional rights of others when “the party asserting the
right has a ‘close’ relationship with the person who pos-
sesses the right” and “there is a ‘hindrance’ to the posses-
sor’s ability to protect his own interests.” Kowalski, supra,
at 130 (quoting Powers v. Ohio, 499 U. S. 400, 411 (1991)).1
——————
1 In practice, this doctrine’s application has been unconvincing and un-
predictable, which has long caused me to question its legitimacy. See,
e.g., United States v. Sineneng-Smith, 590 U. S. ___, ___–___ (2020)
Cite as: 591 U. S. ____ (2020) 3
THOMAS, J., dissenting
The plurality feints toward this doctrine, claiming that
third-party standing for abortionists is well settled by our
precedents. But, ultimately, it dodges the question, claim-
ing that Louisiana’s standing challenge was waived below.
Both assertions are erroneous. First, there is no controlling
precedent that sets forth the blanket rule advocated for by
plaintiffs here—i.e., abortionists may challenge health and
safety regulations based solely on their role in the abortion
process. Second, I agree with JUSTICE ALITO that Louisiana
did not waive its standing challenge below. Post, at 24–25
(dissenting opinion).
But even if there were a waiver, it would not be relevant.
Louisiana argues that the abortionists and abortion clinics
lack standing under Article III to assert the putative rights
of their potential clients. No waiver, however explicit, could
relieve us of our independent obligation to ensure that we
have jurisdiction before addressing the merits of a case. See
DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006).
And under a proper understanding of Article III’s case-or-
controversy requirement, plaintiffs lack standing to invoke
our jurisdiction because they assert no private rights of
——————
(THOMAS, J., concurring) (slip op., at 6–9); Whole Woman’s Health v. Hel-
lerstedt, 579 U. S. ___, ___–___ (2016) (THOMAS, J., dissenting) (slip op.,
at 2–5); Kowalski, 543 U. S., at 135 (THOMAS, J., concurring). For exam-
ple, the Court has held that attorneys cannot bring suit to vindicate the
Sixth Amendment rights of their potential clients due to the lack of a
current close relationship, id., at 130–131, but the Court permits defend-
ants to seek relief based on the Fourteenth Amendment equal protection
rights of potential jurors whom they have never met, Powers, 499 U. S.,
at 410–416; J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994).
And today, the plurality reaffirms our precedent allowing beer vendors
to assert the Fourteenth Amendment rights of their potential customers.
Ante, at 14 (citing Craig v. Boren, 429 U. S. 190, 192 (1976)). But it is
fair to wonder whether gun vendors could expect to receive the same
privilege if they seek to vindicate the Second Amendment rights of their
customers. Given this Court’s ad hoc approach to third-party standing
and its tendency to treat the Second Amendment as a second-class right,
their time would be better spent waiting for Godot.
4 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
their own, seeking only to vindicate the putative constitu-
tional rights of individuals not before the Court.
A
The Court has previously asserted that the traditional
rule against third-party standing is “not constitutionally
mandated, but rather stem[s] from a salutary ‘rule of self-
restraint’ ” motivated by “prudential” concerns. Craig v.
Boren, 429 U. S. 190, 193 (1976) (quoting Barrows v. Jack-
son, 346 U. S. 249, 255 (1953)). The plurality repeats this
well-rehearsed claim, accepting its validity without ques-
tion. See ante, at 12. But support for this assertion is shal-
low, to say the least, and it is inconsistent with our more
recent standing precedents.
As an initial matter, this Court has never provided a co-
herent explanation for why the rule against third-party
standing is properly characterized as prudential. Many
cases reciting this claim rely on the Court’s decision in Bar-
rows, which stated that the rule against third-party stand-
ing is a “rule of self-restraint” “[a]part from the jurisdic-
tional requirement” of Article III, 346 U. S., at 255. But
Barrows provides no reasoning to support that distinction
and even admits that the rule against third-party standing
is “not always clearly distinguished from the constitutional
limitation[s]” on standing. Ibid. The sole authority Bar-
rows cites in support of the rule’s “prudential” label is a sin-
gle-Justice concurrence in Ashwander v. TVA, 297 U. S.
288, 346–348 (1936) (opinion of Brandeis, J.).
Justice Brandeis’ concurrence, however, raises more
questions than it answers. The opinion does not directly
reference third-party standing. It only obliquely refers to
the concept by invoking the broader requirement that a
plaintiff must “show that he is injured by [the law’s] opera-
tion.” Id., at 347. Justice Brandeis claims that this require-
ment was adopted by the Court “for its own governance in
cases confessedly within its jurisdiction.” Id., at 346. But
Cite as: 591 U. S. ____ (2020) 5
THOMAS, J., dissenting
most of the cases he cites frame the matter in terms of the
Court’s jurisdiction and authority; none of them invoke pru-
dential justifications. See, e.g., Tyler v. Judges of Court of
Registration, 179 U. S. 405, 407–410 (1900); Hendrick v.
Maryland, 235 U. S. 610, 621 (1915); Massachusetts v.
Mellon, 262 U. S. 447, 480 (1923). Thus, the “prudential”
label for the rule against third-party standing remains a bit
of a mystery.
It is especially puzzling that a majority of the Court in-
sists on continuing to treat the rule against third-party
standing as prudential when our recent decision in
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U. S. 118 (2014), questioned the validity of our prudential
standing doctrine more generally. In that case, we
acknowledged that requiring a litigant who has Article III
standing to also demonstrate “prudential standing” is in-
consistent “with our recent reaffirmation of the principle
that ‘a federal court’s “obligation” to hear and decide’ cases
within its jurisdiction ‘is “virtually unflagging.” ’ ” Id., at
125–126 (quoting Sprint Communications, Inc. v. Jacobs,
571 U. S. 69, 77 (2013)). The Court therefore suggested that
the “prudential” label for these doctrines was “inapt.”
Lexmark, 572 U. S., at 127, n. 3. As an example, it noted
that the Court previously considered the rule against gen-
eralized grievances to be “prudential” but now recognizes
that rule to be a part of Article III’s case-or-controversy re-
quirement. Ibid. The Court specifically questioned the pru-
dential label for the rule against third-party standing, but
because Lexmark did not involve any questions of third-
party standing, the Court stated that “consideration of that
doctrine’s proper place in the standing firmament [could]
await another day.” Id., at 128, n. 3.
The Court’s previous statements on the rule against
third-party standing have long suggested that the “proper
place” for that rule is in Article III’s case-or-controversy re-
6 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
quirement. The Court has acknowledged that the tradi-
tional rule against third-party standing is “closely related
to Art[icle] III concerns.” Warth v. Seldin, 422 U. S. 490,
500 (1975). It has repeatedly noted that the rule “is not
completely separable from Art[icle] III’s requirement that a
plaintiff have a sufficiently concrete interest in the outcome
of [the] suit to make it a case or controversy.” Secretary of
State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955,
n. 5 (1984) (internal quotation marks omitted); see also
Barrows, supra, at 255 (the rule against third-party stand-
ing is “not always clearly distinguished from the constitu-
tional limitation[s]” on standing). Moreover, the Court has
even expressly stated that the rule against third-party
standing is “grounded in Art[icle] III limits on the jurisdic-
tion of federal courts to actual cases and controversies.”
New York v. Ferber, 458 U. S. 747, 767, n. 20 (1982).
And most recently, in Spokeo, Inc. v. Robins, 578 U. S. ___
(2016), the Court appeared to incorporate the rule against
third-party standing into its understanding of Article III’s
injury-in-fact requirement. There, the Court stated that to
establish an injury-in-fact a plaintiff must “show that he or
she suffered ‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’ ” Id., at ___ (slip op., at 7)
(quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560
(1992)). The Court further explained that whether a plain-
tiff “alleges that [the defendant] violated his statutory
rights ” rather than “the statutory rights of other people ”
was a question of “particularization” for an Article III in-
jury. 578 U. S., at ___ (slip op., at 8) (internal quotation
marks omitted). It is hard to reconcile this language in
Spokeo with the plurality’s assertion that third-party
standing is permitted under Article III.
Cite as: 591 U. S. ____ (2020) 7
THOMAS, J., dissenting
B
A brief historical examination of Article III’s case-or-con-
troversy requirement confirms what our recent decisions
suggest: The rule against third-party standing is constitu-
tional, not prudential. The judicial power is limited to
“ ‘ “cases and controversies of the sort traditionally amena-
ble to, and resolved by, the judicial process.” ’ ” Id., at ___
(THOMAS, J., concurring) (slip op., at 1) (quoting Vermont
Agency of Natural Resources v. United States ex rel. Stevens,
529 U. S. 765, 774 (2000)); see also Muskrat v. United
States, 219 U. S. 346, 356–357 (1911). Thus, to ascertain
the scope of Article III’s case-or-controversy requirement,
“we must ‘refer directly to the traditional, fundamental lim-
itations upon the powers of common-law courts.’ ” Spokeo,
supra, at ___ (THOMAS, J., concurring) (slip op., at 2) (quot-
ing Honig v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., dis-
senting)). “One focus” of these traditional limitations was
“on the particular parties before the court, and whether the
rights that they [were] invoking [were] really theirs to con-
trol.” Woolhandler & Nelson, Does History Defeat Standing
Doctrine? 102 Mich. L. Rev. 689, 732 (2004). An examina-
tion of these limitations reveals that a plaintiff could not
establish a case or controversy by asserting the constitu-
tional rights of others.
The limitations imposed on suits at common law varied
based on the type of right the plaintiff sought to vindicate.
Spokeo, 578 U. S., at ___ (THOMAS, J., concurring) (slip op.,
at 2). The rights adjudicated by common-law courts gener-
ally fell into one of two categories: public or private. Public
rights are those “owed ‘to the whole community . . . in its
social aggregate capacity.’ ” Id., at ___ (slip op., at 3) (quot-
ing 4 W. Blackstone, Commentaries *5). Private rights, on
the other hand, are those “ ‘belonging to individuals, consid-
ered as individuals.’ ” Spokeo, supra, at ___ (THOMAS, J.,
concurring) (slip op., at 2) (quoting 3 Blackstone, Commen-
taries *2).
8 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
When a plaintiff sought to vindicate a private right,
“courts historically presumed that the plaintiff suffered a
de facto injury merely from having his personal, legal rights
invaded.” Spokeo, supra, at ___ (THOMAS, J., concurring)
(slip op., at 2). But a plaintiff generally “need[ed] to have a
private interest of his or her own to litigate; otherwise, no
sufficient interest [was] at stake on the plaintiff’s side, and
the clash of interests necessary for a ‘Case’ or ‘Controversy’
[did] not exist.” Woolhandler & Nelson, supra, at 723.
Thus, 19th-century judges uniformly refused to “listen to an
objection made to the constitutionality of an act by a party
whose rights” were not at issue. Clark, 176 U. S., at 118(internal quotation marks omitted); see also, e.g., Tyler, 179
U. S., at 406–407; Supervisors v. Stanley, 105 U. S. 305, 311
(1882); United States v. Ferreira, 13 How. 40, 51–52 (1852);
Owings v. Norwood’s Lessee, 5 Cranch 344, 348 (1809) (Mar-
shall, C. J.); In re Wellington, 33 Mass. 87, 96 (1834) (Shaw,
C. J.).2
Moreover, it was not enough for a plaintiff to allege
damnum—i.e., real-world damages or practical injury—if
the law he was challenging did not violate a legally pro-
tected interest of his own. At common law, this sort of “fac-
tual harm without a legal injury was damnum absque inju-
ria and provided no basis for relief.” Hessick, Standing,
Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275,
280–281 (2008). As Justice Dodderidge explained in 1625,
“injuria & damnum are the two grounds for the having [of]
——————
2 Common-law courts’ recognition of prochain ami or “next friend”
standing is not inconsistent with this point. In those cases, the third
party was “no party to the suit in the technical sense” but rather served
as “an officer of the court” and was legally “appointed by [the court] to
look after the interests of [the party lacking legal capacity],” who re-
mained the real party in interest on “whom the judgment in the action
[was] consequently binding.” Blumenthal v. Craig, 81 F. 320, 321–322
(CA3 1897) (internal quotation marks omitted). In contrast, the real par-
ties in interest here—women seeking abortions in Louisiana—cannot be
bound by a judgment against abortionists and abortion clinics.
Cite as: 591 U. S. ____ (2020) 9
THOMAS, J., dissenting
all actions, and without [both of] these, no action lieth.” Ca-
ble v. Rogers, 3 Bulst. 311, 312, 81 Eng. Rep. 259. In the
18th century, many common-law courts ceased requiring
damnum in suits alleging violations of private rights. See,
e.g., Ashby v. White, 2 Raym. Ld. 938, 92 Eng. Rep. 126, 137
(K. B.) (Holt, C. J.), aff’d, 3 Raym. Ld. 320, 92 Eng. Rep. 710,
712 (H. L. 1703); see also Webb v. Portland Mfg. Co., 29
F. Cas. 506, 507 (No. 17,322) (CC Me. 1838) (Story, J.). But
they continued to require legal injury, adhering to the “ob-
vious” and “ancient maxim” that one’s real-world damages
alone cannot “lay the foundation of an action.” Parker v.
Griswold, 17 Conn. 288, 302–303 (1846). Thus, a plaintiff
had to assert “[a]n injury, [which,] legally speaking, con-
sists of a wrong done to a person, or, in other words, a vio-
lation of his right.” Id., at 302.
This brief historical review demonstrates that third-
party standing is inconsistent with the case-or-controversy
requirement of Article III. When a private plaintiff seeks
to vindicate someone else’s legal injury, he has no private
right of his own genuinely at stake in the litigation. Even
if the plaintiff has suffered damages as a result of another’s
legal injury, he has no standing to challenge a law that does
not violate his own private rights.
C
Applying these principles to the case at hand, plaintiffs
lack standing under Article III and we, in turn, lack juris-
diction to decide these cases. Thus, “[i]n light of th[e] ‘over-
riding and time-honored concern about keeping the Judici-
ary’s power within its proper constitutional sphere, we
must put aside the natural urge to proceed directly to the
merits of [an] important dispute and to “settle” it for the
sake of convenience and efficiency.’ ” Hollingsworth v.
Perry, 570 U. S. 693, 704–705 (2013) (ROBERTS, C. J., for
the Court) (quoting Raines v. Byrd, 521 U. S. 811, 820
(1997)).
10 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
1
Contrary to the plurality’s assertion otherwise, ante, at
16, abortionists’ standing to assert the putative rights of
their clients has not been settled by our precedents. It is
true that this Court has reflexively allowed abortionists
and abortion clinics to vicariously assert a woman’s puta-
tive right to abortion. But oftentimes the Court has not so
much as addressed standing in those cases. See, e.g., Whole
Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016);
Gonzales v. Carhart, 550 U. S. 124 (2007); Ayotte v. Planned
Parenthood of Northern New Eng., 546 U. S. 320 (2006);
Stenberg v. Carhart, 530 U. S. 914 (2000); Mazurek v. Arm-
strong, 520 U. S. 968 (1997) (per curiam); Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833(1992). And questions “merely lurk[ing] in the record, nei-
ther brought to the attention of the court nor ruled upon,”
are not “considered as having been so decided as to consti-
tute precedents.” Webster v. Fall, 266 U. S. 507, 511 (1925);
see also Illinois Bd. of Elections v. Socialist Workers Party,
440 U. S. 173, 183 (1979). Specifically, when it comes “to
our own judicial power or jurisdiction, this Court has fol-
lowed the lead of Chief Justice Marshall who held that this
Court is not bound by a prior exercise of jurisdiction in a
case where it was not questioned and it was passed sub si-
lentio.” United States v. L. A. Tucker Truck Lines, Inc., 344
U. S. 33, 38 (1952) (citing United States v. More, 3 Cranch
159 (1805) (Marshall, C. J., for the Court)).
The first—and only—time the Court squarely addressed
this question with a reasoned decision was in Singleton v.
Wulff, 428 U. S. 106 (1976).3 In that case, a fractured Court
——————
3 Although the Court concluded that the abortionists had standing to
challenge the constitutionality of abortion regulations in Doe v. Bolton,
410 U. S. 179 (1973), it did so only in dicta, id., at 188–189. The abor-
tionists’ coplaintiffs were pregnant women whom the Court determined
had standing to assert their own rights, and thus whether the abortion-
ists had standing was “a matter of no great consequence.” Id., at 188.
Cite as: 591 U. S. ____ (2020) 11
THOMAS, J., dissenting
concluded that two abortionists had standing to challenge
a State’s refusal to provide Medicaid reimbursements for
abortions. Perfunctorily applying this Court’s require-
ments for third-party standing, Justice Blackmun, joined
by three other Justices, asserted that abortionists generally
had standing to litigate their clients’ rights. Id., at 113–118
(plurality opinion). Justice Stevens concurred on consider-
ably narrower grounds, reasoning that the abortionists had
standing because they had a financial stake in the outcome
of the litigation and sought to vindicate their own constitu-
tional rights as well. Id., at 121 (opinion concurring in
part). Notably, Justice Stevens declined to join the plural-
ity’s discussion of third-party standing, explaining that he
was “not sure whether [that analysis] would, or should, sus-
tain the doctors’ standing, apart from” their own legal
rights and financial interests being at stake in that specific
case. Id., at 122. The four remaining Justices dissented in
part, concluding that the abortionists lacked standing to lit-
igate the rights of their clients. Id., at 122–131 (Powell, J.,
concurring in part and dissenting in part). Because Justice
Stevens’ opinion “concurred in the judgmen[t] on the nar-
rowest grounds,” it is the controlling opinion regarding
abortionists’ third-party standing. Marks v. United States,
——————
Even so, the Court only cursorily considered the question whether the
threat of prosecution faced by the abortionists was a sufficiently direct
injury under the Court’s then-existing standing doctrine, id., at 188–189,
which was considerably more lenient than our current understanding.
The Court did not engage in any meaningful Article III analysis or refer
to this Court’s third-party standing doctrine. Ibid.; see also Akron v. Ak-
ron Center for Reproductive Health, Inc., 462 U. S. 416, 440, n. 30 (1983)
(concluding without any analysis that an abortionist had standing to
raise a claim on behalf of his minor patients). And notably, the abortion-
ists in that case had brought suit to vindicate their own constitutional
rights to “practic[e] their . . . professio[n].” Doe, supra, at 186; see also
Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 62 (1976)
(concluding, without any analysis of Article III or the third-party stand-
ing doctrine, that abortionists had standing in a suit alleging violations
of both their own constitutional rights and those of their clients).
12 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
430 U. S. 188, 193 (1977).4
To the extent Justice Stevens’ opinion could be read as
concluding that abortionists have standing to vicariously
assert their clients’ rights so long as the abortionists estab-
lish standing on their own legal claims, his position has
been abrogated by this Court’s more recent decisions, which
have “confirm[ed] that a plaintiff must demonstrate stand-
ing for each claim he seeks to press.” DaimlerChrysler
Corp., 547 U. S., at 352. But more importantly, Justice Ste-
vens’ opinion does not support the abortionists in these
cases, because his opinion rested on case-specific facts not
implicated here—namely, the fact that the abortionists
would directly receive Medicaid payments from the defend-
ant agency if they prevailed and that they asserted viola-
tions of their own constitutional rights. In these cases,
there is no dispute that the abortionists’ sole claim before
this Court is that Louisiana’s law violates the purported
substantive due process rights of their clients.
2
Under a proper understanding of Article III, plaintiffs
lack standing. As explained above, in suits seeking to vin-
dicate private rights, the owners of those rights can estab-
lish a sufficient injury simply by asserting that their rights
have been violated. Constitutional rights are generally con-
sidered “private rights” to the extent they “ ‘ belon[g] to in-
dividuals, considered as individuals.’ ” Spokeo, 578 U. S., at
___ (THOMAS, J., concurring) (slip op., at 3) (quoting 3
Blackstone, Commentaries *2); see also United States v.
——————
4 Three Justices of this Court have recently taken the position that this
rule from Marks, 430 U. S. 188, does not necessarily apply in all 4–1–4
cases, and that such decisions can sometimes produce “no controlling
opinion at all.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (principal
opinion) (slip op., at 18). But even under their view, Justice Blackmun’s
plurality in Singleton would not be considered binding precedent.
Cite as: 591 U. S. ____ (2020) 13
THOMAS, J., dissenting
Sineneng-Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., con-
curring) (slip op., at 8). And the purported substantive due
process right to abort an unborn child is no exception—it is
an individual right that is inherently personal. After all,
the Court “creat[ed the] right” based on the notion that
abortion “ ‘ involv[es] the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy.’ ” Whole Women’s Health,
579 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 5)
(quoting Casey, 505 U. S., at 851 (majority opinion)). Be-
cause this right belongs to the woman making that choice,
not to those who provide abortions, plaintiffs cannot estab-
lish a personal legal injury by asserting that this right has
been violated.5
The only injury asserted by plaintiffs in this suit is the
possibility of facing criminal sanctions if the abortionists
conduct abortions without admitting privileges in violation
of the law. See Response and Reply for Petitioners (No. 18–
1460)/Cross-Respondents (No. 18–1323), p. 34. But plain-
tiffs do not claim any right to provide abortions, nor do they
contest that the State has authority to regulate such proce-
dures.6 They have therefore demonstrated only real-world
damages (or more accurately, the possibility of real-world
damages), but no legal injury, or “invasion of a legally pro-
tected interest,” that belongs to them. Spokeo, supra, at ___
(slip op., at 7) (internal quotation marks omitted). Thus,
under a proper understanding of Article III, plaintiffs lack
——————
5 Notably, plaintiffs point to no evidence in the record of women who
seek abortions in Louisiana actually opposing this law on the ground that
it violates their constitutional rights.
6 Although plaintiffs initially argued that Louisiana’s law also violated
their procedural due process rights by requiring them to obtain admit-
ting privileges in an unreasonably short time, App. 24, 28, they have
since abandoned that claim. And even if they had asserted violations of
their own rights before this Court, those legal injuries would be insuffi-
cient to establish standing for a distinct claim based on their clients’ pu-
tative rights. See supra, at 12.
14 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
standing and, consequently, this Court lacks jurisdiction.
II
Even if the plaintiffs had standing, the Court would still
lack the authority to enjoin Louisiana’s law, which repre-
sents a constitutionally valid exercise of the State’s tradi-
tional police powers. The plurality and THE CHIEF JUSTICE
claim that the Court’s judgment is dictated by “our prece-
dents,” particularly Whole Woman’s Health. Ante, at 38
(plurality opinion); see also ante, at 2, 11–16 (ROBERTS,
C. J., concurring in judgment). For the detailed reasons ex-
plained by JUSTICE ALITO, this is not true. Post, at 3–23
(dissenting opinion).
But today’s decision is wrong for a far simpler reason: The
Constitution does not constrain the States’ ability to regu-
late or even prohibit abortion. This Court created the right
to abortion based on an amorphous, unwritten right to pri-
vacy, which it grounded in the “legal fiction” of substantive
due process, McDonald v. Chicago, 561 U. S. 742, 811
(2010) (THOMAS, J., concurring in part and concurring in
judgment). As the origins of this jurisprudence readily
demonstrate, the putative right to abortion is a creation
that should be undone.
A
The Court first conceived a free-floating constitutional
right to privacy in Griswold v. Connecticut, 381 U. S. 479(1965). In that case, the Court declared unconstitutional a
state law prohibiting the use of contraceptives, finding that
it violated a married couple’s “right of privacy.” Id., at 486.
The Court explained that this right could be found in the
“penumbras” of five different Amendments to the Constitu-
tion—the First, Third, Fourth, Fifth, and Ninth. Id., at 484.
Rather than explain what free speech or the quartering of
troops had to do with contraception, the Court simply de-
clared that these rights had created “zones of privacy” with
Cite as: 591 U. S. ____ (2020) 15
THOMAS, J., dissenting
their “penumbras,” which were “formed by emanations
from those guarantees that help give them life and sub-
stance.” Ibid. This reasoning is as mystifying as it is base-
less.
As Justice Black observed in his dissent, this general
“right of privacy” was never before considered a constitu-
tional guarantee protecting citizens from governmental in-
trusion. Id., at 508–510. Rather, the concept was one of
tort law, championed by Samuel Warren and the future
Justice Louis Brandeis in their 1890 Harvard Law Review
article entitled, “The Right to Privacy.” 4 Harv. L. Rev. 193.
Over 20 years after the Fourteenth Amendment was rati-
fied and a century after the Bill of Rights was adopted, War-
ren and Brandeis were among the first to advocate for this
privacy right in the context of tort relief for those whose
personal information and private affairs were exploited by
others. Id., at 193, 195–196, 214–220. By “exalting a
phrase . . . used in discussing grounds for tort relief, to the
level of a constitutional rule,” the Court arrogated to itself
the “power to invalidate any legislative act which [it] find[s]
irrational, unreasonable[,] or offensive” as an impermissi-
ble “interfere[nce] with ‘privacy.’ ” Griswold, supra, at 510,
n. 1, 511 (Black, J., dissenting).
Just eight years later, the Court utilized its newfound
power in Roe v. Wade, 410 U. S. 113 (1973). There, the
Court struck down a Texas law restricting abortion as a vi-
olation of a woman’s constitutional “right of privacy,” which
it grounded in the “concept of personal liberty” purportedly
protected by the Due Process Clause of the Fourteenth
Amendment. Id., at 153. The Court began its legal analysis
by openly acknowledging that the Constitution’s text does
not “mention any right of privacy.” Id., at 152. The Court
nevertheless concluded that it need not bother with our
founding document’s text, because the Court’s prior deci-
sions—chief among them Griswold—had already divined
such a right from constitutional penumbras. Roe, 410 U. S.,
16 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
at 152. Without any legal explanation, the Court simply
concluded that this unwritten right to privacy was “broad
enough to encompass a woman’s [abortion] decision.” Id.,
at 153.
B
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 Fourteenth Amendment. Roe
suggests that the Due Process Clause’s reference to “lib-
erty” could provide a textual basis for its novel privacy
right. Ibid. But that Clause does not guarantee liberty qua
liberty. Rather, it expressly contemplates the deprivation
of liberty and requires only that such deprivations occur
through “due process of law.” Amdt. 14, §1. As I have pre-
viously explained, there is “ ‘considerable historical evi-
dence support[ing] the position that “due process of law”
was [originally understood as] a separation-of-powers con-
cept . . . forbidding only deprivations not authorized by leg-
islation or common law.’ ” Johnson v. United States, 576
U. S. 591, 623 (2015) (opinion concurring in judgment)
(quoting D. Currie, The Constitution in the Supreme Court:
The First Hundred Years 1789–1888, p. 272 (1985)). Oth-
ers claim that the original understanding of this Clause re-
quires that “statutes that purported to empower the other
branches to deprive persons of rights without adequate pro-
cedural guarantees [be] subject to judicial review.” Chap-
man & McConnell, Due Process as Separation of Powers,
121 Yale L. J. 1672, 1679 (2012). But, whatever the precise
requirements of the Due Process Clause, “the notion that a
constitutional provision that guarantees only ‘process’ be-
fore a person is deprived of life, liberty, or property could
define the substance of those rights strains credulity for
even the most casual user of words.” McDonald, 561 U. S.,
at 811 (opinion of THOMAS, J.).
Cite as: 591 U. S. ____ (2020) 17
THOMAS, J., dissenting
More specifically, the idea that the Framers of the Four-
teenth Amendment understood the Due Process Clause to
protect a right to abortion is farcical. See Roe, 410 U. S., at174–175 (Rehnquist, J., dissenting). In 1868, when the
Fourteenth Amendment was ratified, a majority of the
States and numerous Territories had laws on the books that
limited (and in many cases nearly prohibited) abortion. See
id., at 175, n. 1.7 It would no doubt shock the public at that
time to learn that one of the new constitutional Amend-
ments contained hidden within the interstices of its text a
right to abortion. The fact that it took this Court over a
century to find that right all but proves that it was more
than hidden—it simply was not (and is not) there.
C
Despite the readily apparent illegitimacy of Roe, “the
——————
7 See, e.g., Ala. Rev. Code §3605 (1867); Terr. of Ariz., Howell Code, ch.
10, §45 (1865); Ark. Rev. Stat., ch. 44, div. III, Art. II, §6 (1838); 1861
Cal. Stat., ch. 521, §45, p. 588; Colo. (Terr.) Rev. Stat. §42 (1868);
Conn. Gen. Stat., Tit. 12, §§22–24 (1861); Fla. Acts 1st Sess., ch. 1637,
subch. III, §§10, 11, ch. 8, §§9, 10 (1868); Terr. of Idaho Laws, Crimes
and Punishments §42 (1864); Ill. Stat., ch. 30, §47 (1868); Ind. Laws
ch. LXXXI, §2 (1859); Iowa Rev. Gen. Stat., ch. 165, §4221 (1860); Kan.
Gen. Stat., ch. 31, §§14, 15, 44 (1868); La. Rev. Stat., Crimes and Of-
fenses §24 (1856); Me. Rev. Stat., Tit. XI, ch. 124, §8 (1857); 1868
Md. Laws ch. 179, §2, p. 315; Mass. Gen. Stat., ch. 165, §9 (1860);
Mich. Rev. Stat., Tit. XXX, ch. 153, §§32, 33, 34 (1846); Terr. of Minn.
Rev. Stat., ch. 100, §§10, 11 (1851); Miss. Rev. Code, ch. LXIV, Arts. 172,
173 (1857); Mo. Rev. Stat., Art. II, §§9, 10, 36 (1835); Terr. of Mont. Laws,
Criminal Practice Acts §41 (1864); Terr. of Neb. Rev. Stat., Crim. Code
§42 (1866); Terr. of Nev. Laws ch. 28, §42 (1861); 1848 N. H. Laws ch.
743, §§1, 2, p. 708; 1849 N. J. Laws, pp. 266–267; 1854 Terr. of N. M.
Laws ch. 3, §§10, 11, p. 88; 1846 N. Y. Laws ch. 22, §1, p. 19; 1867 Ohio
Laws §2, pp. 135–136; Ore. Gen. Laws, Crim. Code, ch. XLIII, §509
(1845–1864); 1860 Pa. Laws no. 374, §§87, 88, 89, pp. 404–405;
Tex. Gen. Stat. Dig., Penal Code, ch. VII, Arts. 531–536 (1859); 1867
Vt. Acts & Resolves no. 57, §§1, 3, pp. 64–66; 1848 Va. Acts, Tit. II, ch. 3,
§9, p. 96; Terr. of Wash. Stat., ch. II, §§37, 38 (1854); Wis. Rev. Stat.,
ch. 164, §§10, 11, ch. 169, §§58, 59 (1858).
18 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
Court has doggedly adhered to [its core holding] again and
again, often to disastrous ends.” Gamble v. United States,
587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op.,
at 16). In doing so, the Court has repeatedly invoked stare
decisis. See, e.g., Casey, 505 U. S., at 854–869. And today,
a majority of the Court insists that this doctrine compels its
result. See ante, at 40 (plurality opinion); ante, at 2, 11
(opinion of ROBERTS, C. J.).
The Court’s current “formulation of the stare decisis
standard does not comport with our judicial duty under Ar-
ticle III,” which requires us to faithfully interpret the Con-
stitution. Gamble, 587 U. S., at ___ (THOMAS, J., concur-
ring) (slip op., at 2). Rather, when our prior decisions
clearly conflict with the text of the Constitution, we are re-
quired to “privilege [the] text over our own precedents.” Id.,at ___ (slip op., at 10). Because Roe and its progeny are
premised on a “demonstrably erroneous interpretation of
the Constitution,” we should not apply them here. 587
U. S., at ___ (THOMAS, J., concurring) (slip op., at 10).
Even under THE CHIEF JUSTICE’s approach to stare deci-
sis, continued adherence to these precedents cannot be jus-
tified. Stare decisis is “not an inexorable command,” ante,
at 3 (internal quotation marks omitted), and this Court has
recently overruled a number of poorly reasoned precedents
that have proved themselves to be unworkable, see Knick v.
Township of Scott, 588 U. S. ___, ___–___ (2019) (ROBERTS,
C. J., for the Court) (slip op., at 20–23); Franchise Tax Bd.
of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at
16–17); Janus v. State, County, and Municipal Employees,
585 U. S. ___, ___–___ (2018) (slip op., at 33–47). As I have
already demonstrated, supra, at 14–17, Roe’s reasoning is
utterly deficient—in fact, not a single Justice today at-
tempts to defend it.
Moreover, the fact that no five Justices can agree on the
proper interpretation of our precedents today evinces that
Cite as: 591 U. S. ____ (2020) 19
THOMAS, J., dissenting
our abortion jurisprudence remains in a state of utter en-
tropy. Since the Court decided Roe, Members of this Court
have decried the unworkability of our abortion case law and
repeatedly called for course corrections of varying degrees.
See, e.g., 410 U. S., at 171–178 (Rehnquist, J., dissenting);
Doe v. Bolton, 410 U. S. 179, 221–223 (1973) (White, J., dis-
senting); Akron v. Akron Center for Reproductive Health,
Inc., 462 U. S. 416, 452–466 (1983) (O’Connor, J., dissent-
ing); Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S. 747, 785–797 (1986) (White, J., dis-
senting); Webster v. Reproductive Health Services, 492 U. S.
490, 532–537 (1989) (Scalia, J., concurring in part and con-
curring in judgment); Casey, 505 U. S., at 944–966
(Rehnquist, C. J., concurring in judgment in part and dis-
senting in part); id., at 979–1002 (Scalia, J., concurring in
judgment in part and dissenting in part); Stenberg, 530
U. S., at 953–956 (Scalia, J., dissenting); id., at 980–983
(THOMAS, J., dissenting); Whole Woman’s Health, 579 U. S.,
at ___–___ (THOMAS, J., dissenting) (slip op., at 5–11). In
Casey, the majority claimed to clarify this “jurisprudence of
doubt,” 505 U. S., at 844, but our decisions in the decades
since then have only demonstrated the folly of that asser-
tion, see Stenberg, 530 U. S., at 953–956 (Scalia, J., dissent-
ing); id., at 960–979 (Kennedy, J., dissenting); Whole
Woman’s Health, supra, at ___–___ (THOMAS, J., dissenting)
(slip op., at 5–11). They serve as further evidence that this
Court’s abortion jurisprudence has failed to deliver the
“ ‘principled and intelligible’ ” development of the law that
stare decisis purports to secure. Ante, at 3 (opinion of
ROBERTS, C. J.) (quoting Vasquez v. Hillery, 474 U. S. 254,
265 (1986)).
THE CHIEF JUSTICE advocates for a Burkean approach to
the law that favors adherence to “ ‘the general bank and
capital of nations and of ages.’ ” Ante, at 3 (quoting 3 E.
Burke, Reflections on the Revolution in France 110 (1790)).
But such adherence to precedent was conspicuously absent
20 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
THOMAS, J., dissenting
when the Court broke new ground with its decisions in Gris-
wold and Roe. And no one could seriously claim that these
revolutionary decisions—or Whole Woman’s Health, de-
cided just four Terms ago—are part of the “inheritance from
our forefathers,” fidelity to which demonstrates “reverence
to antiquity.” E. Burke, Reflections on the Revolution in
France 27–28 (J. Pocock ed. 1987).
More importantly, we exceed our constitutional authority
whenever we “appl[y] demonstrably erroneous precedent
instead of the relevant law’s text.” Gamble, supra, at ___
(THOMAS, J., concurring) (slip op., at 2). Because we can
reconcile neither Roe nor its progeny with the text of our
Constitution, those decisions should be overruled.
* * *
Because we lack jurisdiction and our abortion jurispru-
dence finds no basis in the Constitution, I respectfully dis-
sent.8
——————
8 I agree with JUSTICE ALITO’s application of our precedents except in
Part IV–F of his opinion, but I would not remand for further proceedings.
Because plaintiffs lack standing under Article III, I would instead re-
mand with instructions to dismiss for lack of jurisdiction. Alternatively,
if I were to reach the merits because a majority of the Court concludes
we have jurisdiction, I would affirm, as plaintiffs have failed to carry
their burden of demonstrating that Act 620 is unconstitutional, even un-
der our precedents.
Cite as: 591 U. S. ____ (2020) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1323 and 18–1460
_________________
JUNE MEDICAL SERVICES L. L. C., ET AL.,
PETITIONERS
18–1323 v.
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, PETITIONER
18–1460 v.
JUNE MEDICAL SERVICES L. L. C., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 29, 2020]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, with
whom JUSTICE THOMAS joins except as to Parts III–C and
IV–F, and with whom JUSTICE KAVANAUGH joins as to
Parts I, II, and III, dissenting.
The majority bills today’s decision as a facsimile of Whole
Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016),
and it’s true they have something in common. In both, the
abortion right recognized in this Court’s decisions is used
like a bulldozer to flatten legal rules that stand in the way.
In Whole Woman’s Health, res judicata and our standard
approach to severability were laid low. Even Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833(1992), was altered.
2 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
Today’s decision claims new victims. The divided major-
ity cannot agree on what the abortion right requires, but it
nevertheless strikes down a Louisiana law, Act 620, that
the legislature enacted for the asserted purpose of protect-
ing women’s health. To achieve this end, the majority mis-
uses the doctrine of stare decisis, invokes an inapplicable
standard of appellate review, and distorts the record.
The plurality eschews the constitutional test set out in
Casey and instead employs the balancing test adopted in
Whole Woman’s Health. The plurality concludes that the
Louisiana law does nothing to protect the health of women,
but that is disproved by substantial evidence in the record.
And the plurality upholds the District Court’s finding that
the Louisiana law would cause a drastic reduction in the
number of abortion providers in the State even though this
finding was based on an erroneous legal standard and a
thoroughly inadequate factual inquiry.
THE CHIEF JUSTICE stresses the importance of stare deci-
sis and thinks that precedent, namely Whole Woman’s
Health, dooms the Louisiana law. But at the same time, he
votes to overrule Whole Woman’s Health insofar as it
changed the Casey test.
Both the plurality and THE CHIEF JUSTICE hold that
abortion providers can invoke a woman’s abortion right
when they attack state laws that are enacted to protect a
woman’s health. Neither waiver nor stare decisis can jus-
tify 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 at-
tacking legislation enacted to protect the third party is
stunning. Given the apparent conflict of interest, that con-
cept would be rejected out of hand in a case not involving
abortion.
For these reasons, I cannot join the decision of the Court.
I would remand the case to the District Court and instruct
that court, before proceeding any further, to require the
Cite as: 591 U. S. ____ (2020) 3
ALITO, J., dissenting
joinder of a plaintiff with standing. If a proper plaintiff is
added, the District Court should conduct a new trial and
determine, based on proper evidence, whether enforcement
of Act 620 would diminish the number of abortion providers
in the State to such a degree that women’s access to abor-
tions would be substantially impaired. In making that de-
termination, the court should jettison the nebulous “good
faith” test that it used in judging whether the physicians
who currently lack admitting privileges would be able to ob-
tain privileges and thus continue to perform abortions if Act
620 were permitted to take effect. Because the doctors in
question (many of whom are or were plaintiffs in this case)
stand to lose, not gain, by obtaining privileges, the court
should require the plaintiffs to show that these doctors
sought admitting privileges with the degree of effort that
they would expend if their personal interests were at stake.
I
Under our precedent, the critical question in this case is
whether the challenged Louisiana law places a “substantial
obstacle in the path of a woman seeking an abortion of a
nonviable fetus.” Casey, 505 U. S., at 877 (plurality opin-
ion). If a law like that at issue here does not have that ef-
fect, it is constitutional. Id., at 884 (joint opinion of O’Con-
nor, Kennedy, and Souter, JJ.).
The petitioners urge us to adopt a rule that is more favor-
able to abortion providers. At oral argument, their attorney
maintained that a law that has no effect on women’s access
to abortion is nevertheless unconstitutional if it is not
needed to protect women’s health. See Tr. of Oral Arg. 18–
19. Of course, that is precisely the argument one would
expect from a business that wishes to be free from burden-
some regulations. But unless an abortion law has an ad-
verse effect on women, there is no reason why the law
should face greater constitutional scrutiny than any other
measure that burdens a regulated entity in the name of
4 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
health or safety. See Casey, 505 U. S., at 884–885 (joint
opinion). Many state and local laws that are justified as
safety measures rest on debatable empirical grounds. But
when a party saddled with such restrictions challenges
them as a violation of due process, our cases call for the re-
strictions to be sustained if “it might be thought that the
particular legislative measure was a rational way” to serve
a valid interest. See Williamson v. Lee Optical of Okla.,
Inc., 348 U. S. 483, 488 (1955). The test that petitioners
advocate would give abortion providers an unjustifiable ad-
vantage over all other regulated parties, and for that rea-
son, it was rejected in Casey. See 505 U. S., at 851 (majority
opinion).
Casey also rules out the balancing test adopted in Whole
Woman’s Health. Whole Woman’s Health simply misinter-
preted Casey, and I agree that Whole Woman’s Health
should be overruled insofar as it changed the Casey test.
Unless Casey is reexamined—and Louisiana has not asked
us to do that—the test it adopted should remain the govern-
ing standard.
II
Because the plurality adheres to the balancing test
adopted in Whole Woman’s Health, it considers whether the
Louisiana law helps to protect the health of women seeking
abortions, and it concludes that “nothing in the record indi-
cates that the background vetting for admitting privileges
adds significantly to the vetting that the State Board of
Medical Examiners already provides.” Ante, at 37. THE
CHIEF JUSTICE seems to agree, ante, at 14–15 (opinion con-
curring in judgment), although it is unclear why this issue
matters under the test he favors.
In any event, contrary to the view taken by the plurality
and (seemingly) by THE CHIEF JUSTICE, there is ample evi-
dence in the record showing that admitting privileges help
to protect the health of women by ensuring that physicians
Cite as: 591 U. S. ____ (2020) 5
ALITO, J., dissenting
who perform abortions meet a higher standard of compe-
tence than is shown by the mere possession of a license to
practice. In deciding whether to grant admitting privileges,
hospitals typically undertake a rigorous investigative pro-
cess to ensure that a doctor is responsible and competent
and has the training and experience needed to perform the
procedures for which the privileges are sought. As the Fifth
Circuit explained, “hospitals verify an applicant’s surgical
ability, training, education, experience, practice record, and
criminal history. These factors are reviewed by a board of
multiple physicians.” June Medical Services, L. L. C. v. Gee,
905 F. 3d 787, 805, n. 53 (2018).
The standards used by the great majority of hospitals in
deciding whether to grant privileges clearly show that hos-
pitals demand proof of a higher level of competence. The
Joint Commission, a nonprofit organization that accredits
healthcare institutions, has issued standards for granting
admitting privileges, and all of the hospitals whose rules
are relevant here (and the vast majority of Louisiana hos-
pitals) comply with those standards.1 These standards call
for an examination of each applicant’s licensure, education,
training, and current competence. See Joint Commission,
2020 Hospital Accreditation Standards, pp. MS–23, 25, 26,
29. They require an examination of a doctor’s health rec-
ords, clinical data on performance, and peer recommenda-
tions, and they demand that a hospital make a careful as-
sessment of the procedures a physician may perform. Ibid.Dr. Robert Marier, the former director of the Louisiana
Board of Medical Examiners (and the former dean of Loui-
siana State University Medical School), testified that the
process conducted by hospitals in deciding whether to grant
admitting privileges is “the primary way of determining
——————
1 Quality Check, Find a Gold Seal Health Care Organization (2020),
https : // www .qualitycheck . org / search / ? keyword=louisiana # keyword =
louisiana&accreditationprogram=Hospital (listing “[o]rganizations that
have achieved The Gold Seal of Approval from the Joint Commission”).
6 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
competency.” App. 818. That process, he explained, “thor-
oughly vet[s] the qualifications of [applicants] to ensure
that [they] are competent to provide the services that are in
question.” Ibid.June Medical’s expert, Dr. Eva Pressman, agreed that
“admitting privileges can serve the function of providing an
evaluation mechanism for physician competency.” Id., at
1042, 1091; Record 10864. Doe 3, one of the doctors who
currently performs abortions in Louisiana, also acknowl-
edged the credentialing value of admitting privileges, App.
247–248, as did Doe 4, another Louisiana abortion doctor,
Record 14155.
Although the plurality contends that the review con-
ducted by hospitals adds little to the vetting undertaken by
the State Board of Medical Examiners (Board), that is not
true. Hospitals look beyond the mere possession of a li-
cense, and they do that for very obvious reasons. If nothing
else, their review process serves the hospitals’ interests by
diminishing the risk of awards for malpractice committed
by doctors practicing on their premises. In Louisiana, hos-
pitals that perform negligent credentialing cannot benefit
from the State’s medical malpractice cap. See Billeaudeau
v. Opelousas General Hospital Auth., 2016–0846, p. 21 (La.
10/19/16), 218 So. 3d 513, 527. In addition, a hospital’s
“Medicare participation and other certifications depend on
completing the credentialing process.”2
The review conducted by hospitals goes beyond that of the
Board in another way: it is continuous. Under the Joint
Commission Standards, hospitals must monitor physicians
——————
2 Ryan, Negligent Credentialing: A Cause of Action for Hospital Peer
Review Decisions, 59 How. L. J. 413, 419 (2016); see also Eskine, Square
Pegs and Round Holes: Antitrust Law and the Privileging Decision, 44
U. Kan. L. Rev. 399, 401 (1996) (“[H]ospitals have strong incentives to
award staff privileges only to those physicians who have proven to be
capable and knowledgeable physicians”).
Cite as: 591 U. S. ____ (2020) 7
ALITO, J., dissenting
with admitting privileges and can therefore make a run-
ning assessment of their competence. See Record 11850.
The Board, on the other hand, conducts an inquiry before
initially issuing a license, but the annual license renewal
process entails nothing more than completing a standard
form, paying the required fee, and documenting a certain
number of continuing medical education credits. See 46 La.
Admin. Code, pt. XLV, §417 (2020).
Because hospitals continue to evaluate doctors after priv-
ileges are granted, they may discover information that as-
sists the Board in carrying out its responsibilities. In the
past, hospitals have forwarded such information to the
Board, and such referrals have led the Board to take serious
disciplinary actions.3
The record shows that the vetting conducted by hospitals
goes far beyond what is done at Louisiana abortion clinics.
Some clinics demand nothing more than possession of a li-
cense. Take the example of petitioner June Medical. Doe
3, the only person at that clinic who evaluates applicants,
testified that he does not perform background checks of any
kind, not even criminal records checks. App. 249–250. In
the past, Doe 3 hired a radiologist and ophthalmologist to
perform abortions. Id., at 249.
Delta Clinic in Baton Rouge and Women’s Clinic in New
Orleans have similarly lax practices. Leroy Brinkley, the
president of both clinics, testified before a Pennsylvania
grand jury that, in making hiring decisions, “ ‘I don’t judge
the license. If they have a license and the state gave the
license, it’s not for me to determine if they are capable.’ ”4 A
——————
3 Brief for 207 Members of Congress as Amici Curiae 18–19 (lifetime
ban from obstetric surgery in Louisiana); id., at 19–20 (one-year proba-
tion of medical license).
4 Brief for Louisiana State Legislators as Amici Curiae 8–9; App. to id.,
at 67a.
8 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
“ ‘background check,’ ” he said, is not within his “ ‘frame-
work.’ ”5
Doe 4, who practiced at the now-defunct Causeway Clinic
near New Orleans, recounted the meager vetting that oc-
curred when he was hired at that facility. He had to pro-
duce a valid medical license and DEA license but was not
required “to undergo anything similar to review by a cre-
dentials committee.” Record 14156.
In light of these practices, it is no surprise that the Loui-
siana Department of Health has issued Statements of Defi-
ciency against abortion facilities for failing to adopt “ ‘a
detailed credentialing process for physicians,’ ” failing to in-
vestigate “ ‘possible restrictions’ ” on physicians’ licenses,
and failing to look into “ ‘evidence of prior malpractice
claims/settlements.’ ”6
Louisiana adopted Act 620 in the aftermath of the Kermit
Gosnell grand jury report, which expounded on the failures
of regulatory oversight that allowed Gosnell’s practices to
continue for an extended period. See Report of Grand Jury
in No. 0009901–2008 (1st Jud. Dist. Pa., Jan. 14, 2011).
The grand jury concluded that closer supervision would
have uncovered Gosnell’s egregious health and safety viola-
tions. Gosnell had a medical license, but it is doubtful that
any hospital would have given him admitting privileges.
In sum, contrary to the plurality’s assertion, there is am-
ple evidence in the record showing that requiring admitting
privileges has health and safety benefits. There is certainly
room for debate about the need for this requirement, but
under our case law, this Court’s task is not to ascertain
whether a law “adds significantly” to the existing regula-
tory framework. Instead, when confronted with a genuine
dispute about a law’s benefits, we have afforded legislatures
“wide discretion” in assessing whether a regulation serves
——————
5 Ibid.
6 Id., at 9.
Cite as: 591 U. S. ____ (2020) 9
ALITO, J., dissenting
a legitimate medical need and is medically reasonable even
in the face of medical and scientific uncertainty. Gonzales
v. Carhart, 550 U. S. 124, 163 (2007); Mazurek v. Arm-
strong, 520 U. S. 968, 973 (1997) (per curiam); Akron v. Ak-
ron Center for Reproductive Health, Inc., 462 U. S. 416, 458
(1983) (O’Connor, J., dissenting) (“[L]egislatures are better
suited” than courts “to make the necessary factual judg-
ments in this area”); accord, Barsky v. Board of Regents of
Univ. of N. Y., 347 U. S. 442, 451 (1954) (State has “legiti-
mate concern for maintaining high standards of profes-
sional conduct” in the practice of medicine). Louisiana eas-
ily satisfied this standard.
For these reasons, both the plurality and THE CHIEF
JUSTICE err in concluding that the admitting-privileges re-
quirement serves no valid purpose.
III
They also err in their assessment of Act 620’s likely effect
on access to abortion. They misuse the doctrine of stare de-
cisis and the standard of appellate review for findings of
fact.
A
Stare decisis is a major theme in the plurality opinion and
that of THE CHIEF JUSTICE. Both opinions try to create the
impression that this case is the same as Whole Woman’s
Health and that stare decisis therefore commands the same
result. In truth, however, the two cases are very different.
While it is certainly true that the Texas and Louisiana stat-
utes are largely the same, the two cases are not. The deci-
sion in Whole Woman’s Health was not based on the face of
the Texas statute, but on an empirical question, namely,
the effect of the statute on access to abortion in that State.
579 U. S., at ___ (slip op., at 24). The Court’s answer to that
question depended on numerous factors that may differ
from State to State, including the demand for abortions, the
10 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
number and location of abortion clinics and physicians, the
geography of the State, the distribution of the population,
and the ability of physicians to obtain admitting privileges.
Id., at ___–___ (slip op., at 24–26). There is no reason to
think that a law requiring admitting privileges will neces-
sarily have the same effect in every state. As a result, just
because the Texas admitting privileges requirement was
found by this Court, based on evidence in the record of that
case, to have substantially reduced access to abortion in
that State, it does not follow that Act 620 would have com-
parable effects in Louisiana. See id., at ___–___ (slip op., at
22–26) (reviewing Texas record). The two States are neigh-
bors, but they are not the same. Accordingly, the record-
based empirical determination in Whole Woman’s Health is
not controlling here.
The suggestion that Whole Woman’s Health is materially
identical to this case is ironic, since the two cases differ in
a way that was critical to the Court’s reasoning in Whole
Woman’s Health, i.e., the difference between a pre-enforcement
facial challenge and a post-enforcement challenge based on
evidence of the law’s effects. See id., at ___ (slip op., at 11).
Before the Texas law went into effect, abortion providers
mounted an unsuccessful facial challenge, arguing that the
law would drastically limit abortion access. The Fifth Cir-
cuit held that the plaintiffs had not shown that the law
would create a substantial obstacle for women seeking
abortions, and a final judgment was entered against them.
Planned Parenthood of Greater Tex. Surgical Health Servs.
v. Abbott, 748 F. 3d 583, 590, 605 (2014). Then, after the
law had been in operation for some time, many of the same
plaintiffs filed a second suit and again argued that the ad-
mitting privileges requirement violated Casey. Whole
Woman’s Health v. Cole, 790 F. 3d 563, 577, and n. 14 (CA5
2015). The State defendants sought dismissal based on the
doctrine of claim preclusion, but the Whole Woman’s Health
majority rejected that argument. 579 U. S., at ___ (slip op.,
Cite as: 591 U. S. ____ (2020) 11
ALITO, J., dissenting
at 11).
Why? Two words: “changed circumstances.” Id., at ___
(slip op., at 13). According to the Court, the pre-enforcement
facial challenge was not the same “claim” as the post-
enforcement claim because the “postenforcement conse-
quences” of the challenged Texas law were “unknowable be-
fore [the law] went into effect.” Id., at ___ (slip op., at 14)
(emphasis added); see also ibid. (“[I]t was still unclear how
many clinics would be affected”); id., at ___ (slip op., at 12)
(discussing “new material facts”); id., at ___ (slip op., at 14)
(recounting “later, concrete factual developments”).
The present case is in the same posture as the pre-
enforcement facial challenge to the Texas law, and it should
therefore be obvious that this Court’s decision in Whole
Woman’s Health is not controlling.
B
1
Aside from suggesting that Whole Woman’s Health is dis-
positive, the plurality and THE CHIEF JUSTICE provide one
other reason for concluding that Act 620, if allowed to go
into effect, would create a substantial obstacle for women
seeking abortions. Pointing to the District Court’s finding
that the Louisiana law would have a drastic effect on abor-
tion access, June Medical Services, LLC v. Kliebert, 250
F. Supp. 3d 27, 87 (MD La. 2017), the plurality and THE
CHIEF JUSTICE note that findings of fact may be overturned
only if clearly erroneous, and they see no such error here.
Ante, at 17 (opinion of BREYER, J.); ante, at 15–16 (opinion
of ROBERTS, C. J.). In taking this approach, they overlook
the flawed legal standard on which the District Court’s find-
ing depends, and they ignore the gross deficiencies of the
evidence in the record.
Because the Louisiana law was not allowed to go into ef-
fect for any appreciable time, it was necessary for the Dis-
trict Court to predict what its effects would be. Attempting
12 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
to do that, the court apparently concluded that none of the
doctors who currently perform abortions in the State would
be replaced if the admitting privileges requirement forced
them to leave abortion practice. 250 F. Supp. 3d, at 82.
That inference is debatable, as it primarily rests on the an-
ecdotal testimony of June Medical’s administrator. See id.,
at 81–82; App. 113–114. Neither the plurality nor THE
CHIEF JUSTICE explains why it should be accepted. That
alone casts doubt on the finding to which the majority de-
fers, but the problems with the finding do not stop there.
The finding was based on a fundamentally flawed test.
In attempting to ascertain how many of the doctors who
perform abortions in the State would have to leave abortion
practice for lack of admitting privileges, the District Court
received evidence in a variety of forms—some live testi-
mony, but also deposition transcripts, declarations, and
even letters from counsel—about the doctors’ unsuccessful
efforts to obtain privileges. The District Court considered
whether these doctors had proceeded in “good faith”; it
found that they all met that standard; and it therefore con-
cluded that the law would leave the State with very few
abortion providers.
2
Under the reasoning just described, the factual finding on
which the plurality and THE CHIEF JUSTICE rely—that the
Louisiana law would drastically reduce access to abortion
in the State—depends on the District Court’s finding that
the doctors in question exercised “good faith” in their quest
for privileges, but that test is woefully deficient.
It has aptly been said that “good faith” “ ‘is an elusive
idea, taking on different meanings and emphases as we
move from one context to another.’ ” Black’s Law Dictionary
836 (11th ed. 2019). What the District Court understood
the term to mean in the present context is uncertain, but
Cite as: 591 U. S. ____ (2020) 13
ALITO, J., dissenting
this is clear: The District Court ignored a factor of the ut-
most importance, the incentives of the doctors in question.
When the District Court made its assessment of the doc-
tors’ “good faith,” enforcement of Act 620 had been prelimi-
narily enjoined, and the doctors surely knew that enforce-
ment would be permanently barred if the lawsuit was
successful. Thus, the doctors had everything to lose and
nothing to gain by obtaining privileges.7 Two of the doc-
tors—Does 1 and 2—are petitioners and cross-respondents
in this Court. Two others, Does 5 and 6, were plaintiffs ear-
lier but dropped out for unexplained reasons. See App.
1327. And Doe 3, although not a plaintiff, is the medical
director of June Medical, a party to this case. Id., at 186,
206, 245.
If these doctors had secured privileges, that would have
tended to defeat the lawsuit. Not only that, acquiring priv-
ileges would have subjected all the doctors to the previously
described hospital monitoring, as well as any other obliga-
tions that a hospital imposed on doctors with privileges,
such as providing unpaid care for the indigent. See infra,
at 21. Thus, in light of the situation at the time when the
doctors made their attempts to get privileges, they had an
incentive to do as little as they thought the District Court
would demand, not as much as they would if they stood to
benefit from success.
——————
7 Petitioners maintain that an unsuccessful admitting privileges appli-
cation is a “stain” on a doctor’s medical record, because the rejection
could appear in a federal database and would need to be disclosed on
future applications for admitting privileges. Brief for Petitioners in No.
18–1323, p. 41, n. 7. As the record in this case shows, there is reason to
doubt that the prospect of rejection provides a sufficient incentive for
doctors to pursue privileges vigorously. See infra, at 15–23. Perhaps
that is because only rejections for lack of “professional competence or
professional conduct” need to be disclosed to the relevant federal data-
base. 45 CFR §§60.12, 60.3 (2019). Petitioners also have not explained
how a non-competence-based rejection would have any bearing on future
applications for privileges.
14 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
Given this incentive structure, the District Court’s “good
faith” test was not up to the task. Although the District
Court did not define exactly what the test required, “good
faith” might easily mean only that a doctor lacked the sub-
jective intent to avoid getting privileges. See Black’s Law
Dictionary, at 836 (defining “good faith” to mean, among
other things, “absence of intent to defraud or seek uncon-
scionable advantage”).
In light of the doctors’ incentives, more should have been
required. The court should have asked whether the doctors’
efforts to acquire privileges were equal to the efforts they
would have made if they knew that their ability to continue
to perform abortions was at stake. The District Court did
not do that, and because its finding on abortion access rests
on the wrong legal standard, it cannot stand. A finding
based on an erroneous legal test is invalid; it cannot be sus-
tained under the “clearly erroneous” rule. See Abbott v. Pe-
rez, 585 U. S. ___, ___ (2018) (slip op., at 25) (“ ‘An appellate
cour[t has] power to correct errors of law, including those
that . . . infect . . . a finding of fact that is predicated on a
misunderstanding of the governing rule of law’ ” (quoting
Bose Corp. v. Consumers Union of United States, Inc., 466
U. S. 485, 501 (1984))); Pullman-Standard v. Swint, 456
U. S. 273, 287 (1982) (similar); see also 9C C. Wright & A.
Miller, Federal Practice & Procedure §2585, p. 392 (3d ed.
2008) (Wright & Miller) (“[I]t is axiomatic that the conclu-
sions of law of the trial judge are not protected by the
‘clearly erroneous’ test”).8
——————
8 The plurality claims that my criticism of the District Court’s “good
faith” standard “is not a legal argument,” and instead reflects a view of
the facts—namely that the Does acted in “bad faith.” Ante, at 24. But
the District Court used “good faith” as the legal standard to assess
whether Act 620 would cause the Does to stop performing abortions. Nei-
ther the District Court nor the plurality has defined “good faith.” Unless
that term reflects what the doctors would have done if the incentives had
been reversed—and the plurality does not argue that it does—there is a
legal issue.
Cite as: 591 U. S. ____ (2020) 15
ALITO, J., dissenting
3
Not only did the District Court apply the wrong test, but
the evidence in the record fails to show that the doctors
made anything more than perfunctory efforts to obtain
privileges.
There are three abortion clinics in Louisiana: June Med-
ical, d/b/a Hope Clinic, in Shreveport; Delta Clinic in Baton
Rouge; and Women’s Clinic in New Orleans. Five doctors
perform abortions at those three locations: Doe 1, Doe 2,
and Doe 3 at June Medical; Doe 5 at Delta Clinic and
Women’s Clinic; and Doe 6 at Women’s Clinic. For purposes
of the analysis that follows, I assume that Doe 1 could not
get privileges.9 If we also assume that none of these doctors
would be replaced if they ceased to perform abortions, the
impact of the challenged law on abortion access in the State
depends on the ability of four doctors to secure such privi-
leges: Doe 2 (June Medical, Shreveport), Doe 3 (June Medi-
cal, Shreveport), Doe 5 (Delta Clinic, Baton Rouge, and
Women’s Clinic, New Orleans), and Doe 6 (Women’s Clinic,
New Orleans). As I will show, under the correct legal stand-
ard, June Medical failed to prove that Act 620 would drive
these four doctors out of the abortion practice.
Doe 2. The District Court concluded that Doe 2 made a
——————
9 The Fifth Circuit concluded that it would be “nearly impossible” for
Doe 1 to get privileges, June Medical Services L. L. C. v. Gee, 905 F. 3d
787, 812 (2018), and for this reason, the plurality does not linger on Doe
1. Ante, at 23. Under the correct legal standard, however, it is not at all
clear that Doe 1 made the effort required, at least with respect to
Christus Health in Shreveport. He applied there for courtesy privileges,
received letters instructing him to pick up a badge, and when he called
to clarify the meaning of letters sent to him, an unnamed doctor suppos-
edly told him that he should apply for “some kind of a nonstaff caregiver
type” position, App. 725, and he then ceased all efforts to get courtesy
staff privileges at Christus, id., at 728. A person with a strong personal
incentive to obtain courtesy privileges would not necessarily have taken
this somewhat cryptic advice as a definite rejection of his application.
16 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
good-faith effort to obtain privileges, and the Court now af-
firms that holding. Ante, at 27. It is painfully obvious, how-
ever, that Doe 2 did not act in the way one would expect if
compliance with Act 620 had been to his benefit.
E-mails in the record reveal that Doe 2 only half-heartedly
applied for privileges, did so on the advice of counsel, and
calculated that an outright denial would be best for his legal
challenge. See App. 1452 (“The lawyers think it is im-
portant that I at least have an application pending at a hos-
pital”); id., at 1453 (“It may, however, be more important
from a legal challenge standpoint against this Bill just to
have an application pending or even denied” (emphasis
added)).
Consistent with this attitude, Doe 2 declined to apply for
privileges at a Shreveport-area hospital, Christus Health,
where he previously had privileges while performing abor-
tions offsite and where another doctor who performed abor-
tions, Doe 3, maintained privileges. Id., at 382. Doe 2 knew
that Doe 3 had privileges at Christus Health, a hospital
that grants “courtesy privileges,” which allow doctors to ad-
mit patients but do not require a minimum number of ad-
missions. See id., at 406; Record 12125 (bylaws).
Doe 2’s stated reasons for not applying to Christus Health
are not reasons that are likely to have deterred an individ-
ual with a strong personal incentive to obtain privileges.
He testified that Christus is a Catholic hospital and that he
did not apply there for that reason. App. 405–406. He
added that he applied to other hospitals where he “knew
people and might feel more comfortable,” “places that [he]
thought meant something” and where he would have “the
highest likelihood” of obtaining privileges. Id., at 454. A
person with a strong personal incentive to get privileges is
not likely to have found these reasons sufficient to justify
failing even to apply.
The District Court did not address Doe 2’s failure to apply
Cite as: 591 U. S. ____ (2020) 17
ALITO, J., dissenting
to Christus Health. 250 F. Supp. 3d, at 68–74. The plural-
ity, however, argues that Christus would not have granted
Doe 2 privileges because its bylaws object to abortion prac-
tice. Ante, at 25–26. But as noted, Christus Health had
previously granted privileges to doctors who perform abor-
tions. Not only did Doe 2 have privileges there while he was
performing abortions, but Doe 3 has had privileges at
Christus “off and on” for “30 years” and was reappointed to
the Christus Health staff in 2012 and again in 2014. App.
272; Record 12102 (2012–2014); id., at 12112 (2014–2016).
Throughout this time, he performed abortions. App. 206,
210.
Attempting to justify Doe 2’s decision not to (re)apply to
Christus, the plurality suggests that Doe 3 (and by exten-
sion Doe 2) successfully concealed their abortion practice
from Christus, and that if Doe 2 had applied for privileges,
Christus would have discovered that he was performing
abortions and denied his application on that ground. It is
doubtful that Christus was actually in the dark, and specu-
lative that an application would have been denied for this
reason.10 But the important point is that a doctor with a
——————
10 The suggestion that Doe 2’s abortion practice could have eluded
Christus (and therefore that it would be an impediment to obtaining
privileges again) blinks reality. There is no evidence that the hospital
was unaware of Doe 2’s abortion practice when he was on staff. Nor is
there reason to believe that Christus would not have reviewed Doe 2’s
professional practice history, Record 12190–12191, or demanded disclo-
sure of past malpractice claims at the time he held privileges there, id.,
at 12194; App. 374 (medical malpractice claim against Doe 2 arising from
practice at June Medical); see also supra, at 4–7 (reviewing hospital cre-
dentialing).
The notion that Doe 3’s abortion practice has escaped attention for 30
years is even harder to believe. Christus has reappointed Doe 3 in recent
years based on a biennial process that assesses “[p]erformance and con-
duct in each hospital and/or other healthcare organizatio[n]” outside of
Christus. Record 12136; see also ibid. (requiring staff members to sub-
mit “reapplication form [with] complete information to update his/her file
on items listed in his/her original application”). Doe 3 spends “Thursday
18 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
strong personal incentive would have tried and not simply
gone through the motions.
Instead of applying to Christus Health, Doe 2 made a for-
mal application to Willis-Knighton Bossier City (WKBC)
and an informal inquiry at University Hospital, but the rec-
ord does not show that he pursued those requests with any
zeal. At WKBC, he did not apply for courtesy privileges,
which do not require a minimum number of admissions,
Record 9642–9643, but instead sought an active staff posi-
tion, id., at 9751, and according to Doe 2, this application
was doomed because he could not satisfy the minimum-
admissions requirement for such a position, App. 384–390.
Doe 2 later sent a three-paragraph e-mail to a WKBC e-
mail address purporting to amend his 102-page application
so as to seek only courtesy privileges, id., at 1446, but the
record does not reflect whether that e-mail was received or
processed, and subsequent correspondence from WKBC
does not acknowledge it, id., at 1435. Doe 2 stated that he
sought an active staff position “to keep [his] practice options
for the future open,” Record 9756, but that does not explain
his lack of diligence in seeking courtesy staff privileges.
Although it is true that WKBC requested inpatient records
from Doe 2 for an active staff position, we do not know
——————
afternoon” and “all day on Saturday” at the abortion clinic, App. 206, and
therefore presumably is unavailable for his on-call duties at Christus at
those times, Record 12123. Doe 3 is affiliated with the National Abortion
Federation and has attended “many” of their national conferences to
obtain continuing medical education credits. App. 203. And Doe 3 indi-
cated that all eight OB/GYNs in Bossier City learned of his abortion prac-
tice when discussing a possible on-call rotation system. See id., at 200–
202. If those facts did not tip off the hospital, perhaps Christus learned
about Doe 3’s abortion practice when one of his patients was transferred
directly from June Medical to Christus, bleeding and in need of a hyster-
ectomy, id., at 217–218, or when Doe 1’s privileges application named
Doe 3 as a peer reference, Record 13025. Whatever the Christus bylaws
say, abortion practice does not appear to have presented an obstacle to a
successful association with the hospital.
Cite as: 591 U. S. ____ (2020) 19
ALITO, J., dissenting
whether the hospital would have made the same request
had Doe 2 applied for courtesy privileges. Id., at 1435.11
Doe 2 said he made an informal inquiry about admitting
privileges at University Hospital, where he has consulting
privileges, but that the head of the OB/GYN Department,
Dr. Groome, “essentially said” that the hospital would not
upgrade his credentials. Id., at 384. Doe 2 attributed this
to “the political nature of what I do and the controversy of
what I do.” Ibid. But Doe 2 did not introduce evidence (or
seek to elicit testimony from Dr. Groome) substantiating
his account of this informal inquiry.
Doe 2’s account raises obvious questions. Since he was
already a member of the University Hospital staff, it is not
apparent why the hospital would reject his request for up-
graded privileges because of “the political nature” of his
practice. Id., at 440–441. And University Hospital has long
been on notice of Doe 2’s abortion practice. He has been
affiliated with that hospital since 1979, Record 9757, and
has performed abortions since 1980, id., at 9759.
In sum, Doe 2 all but admitted in his e-mails that his ef-
forts to obtain privileges were perfunctory; he declined to
apply at a hospital where he previously had privileges; at
the only hospital where he made a formal application, he
sought a position he knew he could not get for lack of a suf-
ficient number of admissions; and at one other hospital
(where he already had consulting privileges) he did no more
than make an informal inquiry. The District Court should
have considered whether Doe 2’s efforts were consistent
——————
11 Each year, a physician with courtesy staff privileges at WKBC may
have as many as 49 “patient contacts,” which are defined as “any admis-
sion and management, consultation, procedure, response to emergency
call, and newborns.” Record 9628, 9642 (capitalization omitted). And
contrary to the plurality’s suggestion, the fact that WKBC imposes the
same “[f]actors for [e]valuation” for courtesy and active staff-applicants
says little, since those factors do not set out any quantum of patient rec-
ords, and require only “relevant . . . experience” for the position sought.
Id., at 9669.
20 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
with the conduct of a person who really wanted to get
privileges.
Doe 5. Doe 5 is an OB/GYN who performs abortions at
Women’s Clinic in New Orleans and Delta Clinic in Baton
Rouge. Doe 5 did not testify at the hearing in District
Court, but the District Court found that he proceeded in
“good faith” based on a declaration and the transcript of a
deposition. 250 F. Supp. 3d, at 75–76.
Doe 5 obtained courtesy privileges at Touro Hospital in
New Orleans, see App. 1401, and therefore all agree that
Act 620 would not prevent him from practicing at Women’s
Clinic, id., at 1397. The remaining question is whether the
law would bar him from performing abortions in Baton
Rouge.
Doe 5 could continue to do that if one hospital in that area
granted him admitting privileges, and Doe 5 testified that
one, Woman’s Hospital, will grant him privileges once he
finds a doctor who is willing to cover him when he is not
available. See id., at 1334. Doe 5 asked exactly one doctor
to serve as his covering physician. That does not show that
he “could not find a covering physician,” ante, at 23, if he
made other inquiries.
The plurality justifies Doe 5’s meager effort based on pure
speculation. Because the one doctor Doe 5 asked had a
transfer agreement with the Baton Rouge abortion clinic,
the plurality reasons that “Doe 5 could have reasonably
thought that, if this doctor wouldn’t serve as his covering
physician, no one would.” Ante, at 28. The plurality goes
on to say that “it was well within the District Court’s dis-
cretion to credit that reading of the record.” Ibid.
This argument shows how far the plurality is willing to
go to strike down the Louisiana law. The plurality relies on
speculation about why Doe 5 made only one inquiry and
why the District Court found this one inquiry sufficient. In
fact, however, Doe 5 never explained why he asked only one
doctor, and he never intimated that he gave up because that
Cite as: 591 U. S. ____ (2020) 21
ALITO, J., dissenting
doctor had a transfer agreement with the clinic. Nor did
the District Court rely on that inference in finding that Doe
5 exhibited good faith. See 250 F. Supp. 3d, at 75–76. And
in any event, even if Doe 5 had a particularly strong reason
to hope that the doctor he asked would agree to cover for
him, it hardly follows that other inquiries would necessarily
fail.
Doe 5 applied for privileges at two other area hospitals,
Lane and Baton Rouge, but he did not even call back to
check on them because he thought his “best chances for
privileges [were] at Woman’s Hospital,” App. 1334, and he
noted that Lane and Baton Rouge require that their doctors
treat some indigent patients “for free basically” while open-
ing themselves up to liability, id., at 1335. Also, Doe 5 ex-
plained, Lane is “further away” from the Delta Clinic than
the other hospitals. Ibid.
To sum up Doe 5’s situation: The challenged law would
have no effect on him if he could find a covering doctor in
Baton Rouge, but he asked only one doctor. He did little to
pursue applications at two other hospitals because he was
not optimistic about his chances and those hospitals re-
quired a certain amount of unpaid service to the poor.
Doe 6. Doe 6 is a Board-certified OB/GYN who practices
at Women’s Clinic in New Orleans. There are nine qualify-
ing New Orleans-area hospitals, and according to his affi-
davit, Doe 6 made an informal inquiry at one and filed a
formal application at another. The District Court found
that he attempted in “good faith” to obtain admitting privi-
leges even though Doe 6 did not testify and was never sub-
jected to adversarial questioning. The only relevant infor-
mation before the court were several paragraphs in Doe 6’s
declaration, id., at 1307–1313, and hearsay in the declara-
tion of the Women’s Clinic administrator, id., at 1119–1131;
see also 250 F. Supp. 3d, at 76–77.
These questionable sources left many important ques-
tions unanswered, for example, why Doe 6 did not apply for
22 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
privileges at Touro Hospital, where Doe 5, who also per-
forms abortions at Women’s Clinic, has privileges.
The plurality provides an explanation that is found no-
where in the record, i.e., that Doe 6 could not get privileges
at Touro because, unlike Doe 5, who performs both surgical
and medication abortions, Doe 6 performs only medication
abortions. Ante, at 30. Not only is this pure speculation,
but it is not evident why this difference might matter. The
plurality notes that Doe 6’s medication abortion patients
have never been admitted to a hospital, but the plurality
also argues that very few surgical abortion patients are ad-
mitted. Ante, at 30, 37. If Doe 6 had testified or been de-
posed, he could have been asked about his decision not to
apply at Touro, but that did not occur.
Aside from Touro, there are eight other hospitals in the
New Orleans area, but Doe 6 apparently made no attempt
to get privileges at six of these, and nothing in the scant
record explains why. He stated that he formally applied at
East Jefferson Hospital and made an informal inquiry at
Tulane Hospital, but much about these efforts is unknown.
No representative from Tulane or East Jefferson testified
or was deposed, and no documents relating to either appli-
cation were offered.
With respect to Doe 6’s informal inquiry at Tulane, all
that the District Court had before it was a single paragraph
in Doe 6’s declaration in which he stated that he spoke to
an unnamed individual and was told he should not bother
to apply because he did not have the requisite number of
admissions per year. App. 1310. Nothing in the record re-
veals the type of privileges about which Doe 6 inquired.
Doe 6 furnished even less information about his formal
application to East Jefferson hospital—a hospital which of-
fers courtesy privileges, and does not impose an admissions
requirement for those privileges. Record 10679. In his dec-
laration, which he signed in September 2014, Doe 6 wrote
that he had applied but had not received a response. App.
Cite as: 591 U. S. ____ (2020) 23
ALITO, J., dissenting
1311. A few weeks later, June Medical’s counsel informed
the District Court by letter that Doe 6 had complied with
East Jefferson’s request for additional information, id., at
54, but the record says nothing about any later develop-
ments. Presumably, East Jefferson did not grant privi-
leges, but the record does not disclose why. Did Doe 6 pro-
vide all the information that the hospital requested and do
everything else required by the application process? The
record is silent, and the District Court was incurious.
Doe 3. Doe 3, who performs abortions at the June Medi-
cal clinic in Shreveport, would not be directly affected by
Act 620 because he maintains privileges at two area hospi-
tals, Christus Health and WKBC, but he stated that he
would stop performing abortions if, as a result of that law,
he was left as the only abortion doctor in the northern part
of the State. Id., at 236. Thus, if Doe 1 or Doe 2 got privi-
leges and continued to perform abortions, Doe 3, according
to his testimony, would remain as well.12
Putting all this together, it is apparent that the record
does not come close to showing that Doe 2, Doe 5, and Doe
6 made the sort of effort that one would expect if their abil-
ity to continue performing abortions had depended on suc-
cess. These doctors had an incentive to do the bare mini-
mum that they thought the judge would demand—and as it
turned out, the judge did not demand much, not even an
appearance in his courtroom. In short, the record does not
show that Act 620 would drive any of these doctors out of
abortion practice, and therefore the Act would not lead Doe
——————
12 The plurality suggests that, if Doe 3 were to leave abortion practice,
it would be attributable to Act 620. But even the most ardent opponents
of Act 620 did not contemplate that the law would prompt abortion doc-
tors who satisfied the law’s requirements to quit. Record 11231–11234,
11291. And if this outcome was not foreseeable at the time of enactment,
it is hard to see how the District Court could blame Act 620 for causing
Doe 3 to leave abortion practice. Cf. Restatement (Second) of Torts §440,
§442A (1964).
24 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
3 to leave either. It follows that the District Court’s finding
on Act 620’s likely effects cannot stand.
C
The Court should remand this case for a new trial under
the correct legal standards. The District Court should ap-
ply Casey’s “substantial obstacle” test, not the Whole
Woman’s Health balancing test. And it should require those
challenging Act 620 to demonstrate that the doctors who
lack admitting privileges attempted to obtain them with the
same zeal they would have exhibited if the Act were in ef-
fect and they stood to lose by failing in those efforts.
IV
On remand, the District Court should not permit June
Medical to assert the rights of women wishing to obtain an
abortion. The court should require the joinder of a plaintiff
whose own rights are at stake. Our precedents rarely per-
mit a plaintiff to assert the rights of a third party, and June
Medical cannot satisfy our established test for third-party
standing. Indeed, what June Medical seeks is something
we have never allowed. It wants to rely on the rights of
third parties whose interests conflict with its own.
A
The plurality holds that Louisiana waived any objection
to June Medical’s third-party standing, ante, at 12, but that
is a misreading of the record. The plurality relies on a pass-
ing statement in a brief filed by the State in District Court
in connection with the plaintiffs’ request for a temporary
restraining order, but the statement is simply an accurate
statement of circuit precedent on the standing of abortion
providers. See App. 44. It does not constitute a waiver.
It is true that Louisiana did not affirmatively make the
third-party standing argument until it filed its cross-
petition for certiorari, but “[w]e may make exceptions to our
Cite as: 591 U. S. ____ (2020) 25
ALITO, J., dissenting
general approach to claims not raised below.” Polar Tank-
ers, Inc. v. City of Valdez, 557 U. S. 1, 14 (2009). A party’s
failure to raise an issue does not deprive us of the power to
take it up, so long as the court below has passed on the
question. See Lebron v. National Railroad Passenger Cor-
poration, 513 U. S. 374, 379 (1995) (“[E]ven if this were a
claim not raised by petitioner below, we would ordinarily
feel free to address it since it was addressed by the court
below” (emphasis deleted)); S. Shapiro et al., Supreme
Court Practice §6–26(b), p. 6–104 (11th ed. 2019) (collecting
cases).
In this case, no one disputes that the Fifth Circuit passed
on the issue of third-party standing in Louisiana’s appeal
from the District Court’s entry of a preliminary injunction.
June Medical Services, L. L. C. v. Gee, 814 F. 3d 319, 322–
323 (2016). And when we granted the State’s cross-petition,
we took up this question and received briefing and argu-
ment on it. 589 U. S. ___ (2019).
We have a strong reason to decide the question of third-
party standing because it implicates the integrity of future
proceedings that should occur in this case. This case should
be remanded for a new trial, and we should not allow that
to occur without a proper plaintiff. Nothing compels us to
forbear from addressing this issue. See Carlson v. Green,
446 U. S. 14, 17, n. 2 (1980); Shapiro, Supreme Court Prac-
tice §6.26(h), at 6–111.
B
This case features a blatant conflict of interest between
an abortion provider and its patients. Like any other regu-
lated entity, an abortion provider has a financial interest in
avoiding burdensome regulations such as Act 620’s admit-
ting privileges requirement. Applying for privileges takes
time and energy, and maintaining privileges may impose
additional burdens. See App. 1335. Women seeking abor-
26 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
tions, on the other hand, have an interest in the preserva-
tion of regulations that protect their health. The conflict
inherent in such a situation is glaring.
Some may not see the conflict in this case because they
are convinced that the admitting privileges requirement
does nothing to promote safety and is really just a ploy. But
an abortion provider’s ability to assert the rights of women
when it challenges ostensible safety regulations should not
turn on the merits of its claim.
The problem with the rule that the majority embraces is
highlighted if we consider challenges to other safety regu-
lations. Suppose, for example, that a clinic in a State that
allows certified non-physicians to perform abortions claims
that the State’s certification requirements are too onerous
and that they imperil the clinic’s continued operation.
Should the clinic be able to assert the rights of women in
attacking this regulation, which the state lawmakers
thought was important to protect women’s health?
When an abortion regulation is enacted for the asserted
purpose of protecting the health of women, an abortion pro-
vider seeking to strike down that law should not be able to
rely on the constitutional rights of women. Like any other
party unhappy with burdensome regulation, the provider
should be limited to its own rights.
C
This rule is supported by precedent and follows from gen-
eral principles regarding conflicts of interest. We have al-
ready held that third-party standing is not appropriate
where there is a potential conflict of interest between the
plaintiff and the third party. In Elk Grove Unified School
Dist. v. Newdow, 542 U. S. 1, 9, 15, and n. 7 (2004), a poten-
tial conflict of interest between the plaintiff and his daugh-
ter arose on appeal. The father had asserted that his
daughter had a constitutional right not to hear others recite
the words “ ‘under God’ ” when the pledge of allegiance was
Cite as: 591 U. S. ____ (2020) 27
ALITO, J., dissenting
recited at her public school, but the child’s mother main-
tained that her daughter had “no objection either to reciting
or hearing” the full pledge. Id., at 5, 9. The Court held that
the father lacked prudential standing, because “the inter-
ests of this parent and this child are not parallel and, in-
deed, are potentially in conflict.” Id., at 15. The lower
court’s judgment (based, as it was, on a presentation by a
conflicted party) was therefore reversed.
Newdow recognized the seriousness of conflicts of interest
in the specific context of third-party claims, but the law is
always sensitive to potential conflicts when a party sues in
a representative capacity. Parties naturally “tailor their
own presentation to the interest that each of them has,” and
a conflict therefore creates “a risk that the party will not
provide adequate representation of the interest of the ab-
sentee.” See 7C Wright & Miller §1909. Thus, in class-
action suits, Federal Rule of Civil Procedure 23(a)(4) de-
mands that the named plaintiff possess “the same interest
and suffer the same injury” as class members. General Tel-
ephone Co. of Southwest v. Falcon, 457 U. S. 147, 156 (1982)
(internal quotation marks omitted). That requirement, we
have said, “serves to uncover conflicts of interest between
named parties and the class they seek to represent.” Am-
chem Products, Inc. v. Windsor, 521 U. S. 591, 625 (1997).
Similarly, under Federal Rule of Civil Procedure 17(c), a
party representing a minor or incompetent person may be
replaced if the representative has conflicting interests. See
Sam M. v. Carcieri, 608 F. 3d 77, 86 (CA1 2010); 6A Wright
& Miller §1570. And of course, an attorney cannot repre-
sent a client if their interests conflict.13
D
The conflict of interest inherent in a case like this is rea-
son enough to reject third-party standing, and our standard
——————
13 See, e.g., ABA Model Rules of Professional Conduct 1.7–1.9, 1.18
(2016).
28 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
rules on third-party standing provide a second, independ-
ent reason. As a general rule, a plaintiff “must assert his
own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.”
Warth v. Seldin, 422 U. S. 490, 499 (1975). We have recog-
nized a “limited” exception to this rule, but in order to qual-
ify, a litigant must demonstrate (1) closeness to the third
party and (2) a hindrance to the third party’s ability to bring
suit. Kowalski v. Tesmer, 543 U. S. 125, 129–130 (2004);
see also Powers v. Ohio, 499 U. S. 400, 410–411 (1991).
The record shows that abortion providers cannot satisfy
either prong of this test. First, a woman who obtains an
abortion typically does not develop a close relationship with
the doctor who performs the procedure. On the contrary,
their relationship is generally brief and very limited. In
Louisiana, a woman may make her first visit to an abortion
clinic the day before the procedure, and if she goes to June
Medical, she is likely to have a short meeting with a coun-
selor, not the doctor who will actually perform the proce-
dure. See App. 784–786. She will typically meet the abor-
tion doctor for the first time just before the procedure, and
if Doe 1’s description is representative, their relationship
consists of the doctor’s telling the woman what he will do,
offering to answer questions, informing her of his progress
as the abortion is performed, and asking her to remain
calm. Id., at 688. Doe 4 testified that the surgical proce-
dure itself takes “two or three minutes.” Record 14144. Doe
3 testified that he can perform six abortions an hour and
once performed 64 abortions in a 2-day period. App. 207,
243.
In the case of medication abortions, patients are required
to schedule a follow-up appointment three weeks after the
procedure, see id., at 129–131, 690, but surgical abortions,
which constitute the majority of the procedures at June
Medical and across the State, do not require any follow-up,
id., at 691, and the great majority of women never return to
Cite as: 591 U. S. ____ (2020) 29
ALITO, J., dissenting
the clinic, id., at 131; accord, id., at 1342 (Doe 5).
This description of doctor-patient interactions at June
Medical is similar to those recounted in testimony heard by
the legislature. See Record 11263 (“there was no doctor/pa-
tient relationship”); id., at 11226 (“I can tell you, women I’ve
counseled, many times they don’t know who the abortion
provider is”). Amici who have had abortions recount simi-
larly distant relationships with their abortion doctors.14
For these reasons, the first prong of the third-party stand-
ing rule cannot be met.
Nor can the second, which requires that there be a hin-
drance to the ability of the third party to bring suit. See
Kowalski, 543 U. S., at 130. The plurality opinion in Sin-
gleton v. Wulff, 428 U. S. 106, 117 (1976), found that women
seeking abortions were hindered from bringing suit, but the
reasoning in that opinion is hard to defend. The opinion
identified two purported obstacles to suits by women wish-
ing to obtain abortions—the women’s desire to protect their
privacy and the prospect of mootness. Ibid. But as Justice
Powell said at the time, these “alleged ‘obstacles’ . . . are
chimerical.” Id., at 126 (opinion concurring in part and dis-
senting in part).
First, a woman who challenges an abortion restriction
can sue under a pseudonym, and many have done so. Ibid.(“Our docket regularly contains cases in which women, us-
ing pseudonyms, challenge statutes that allegedly infringe
their right to exercise the abortion decision”). Other pre-
cautions may be taken during the course of litigation to
avoid revealing their identities. See App. 196.15 And there
——————
14 See Brief for 2,624 Women Injured by Abortion et al. as Amici Curiae
14–22 (firsthand accounts of abortion procedures in Louisiana); Brief for
Priests for Life et al. as Amici Curiae 7–8, and App. (accounts from Lou-
isiana and other States).
15 Four cases to reach this Court have featured exclusively women
plaintiffs. See Beal v. Doe, 432 U. S. 438 (1977); Maher v. Roe, 432 U. S.
464 (1977); Poelker v. Doe, 432 U. S. 519 (1977) (per curiam); H. L. v.
30 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
is little reason to think that a woman who challenges an
abortion restriction will have to pay for counsel. See Brief
for Respondent/Cross-Petitioner 40–41.
Second, if a woman seeking an abortion brings suit,
her claim will survive the end of her pregnancy under the
capable-of-repetition-yet-evading-review exception to moot-
ness. See Roe v. Wade, 410 U. S. 113, 125 (1973) (“Preg-
nancy provides a classic justification for a conclusion of non-
mootness”). To be sure, when the pregnancy terminates, an
individual plaintiff ’s immediate interest in prosecuting the
case may diminish. But this is generally true whenever the
capable-of-repetition-yet-evading-review exception applies.
See 13C Wright & Miller §3533.8 (collecting examples).
The Singleton plurality opinion is the only opinion in
which any Members of this Court have ever attempted to
justify third-party standing for abortion providers, and
judged on its own merits, the opinion is thoroughly uncon-
vincing.
E
The Court does not address the conflict of interest inher-
ent in this challenge, or plaintiffs’ failure to satisfy the two
prongs of our third-party standing doctrine. See Kowalski,
543 U. S., at 130. Instead, the plurality says that it “is . . .
common” in third-party standing case law for “plaintiffs [to]
challeng[e] a law ostensibly enacted to protect [a third
party] whose rights they are asserting.” Ante, at 15. In
——————
Matheson, 450 U. S. 398 (1981). But there are a number of cases in which
women have been co-plaintiffs along with abortion clinics or providers.
See Leavitt v. Jane L., 518 U. S. 137 (1996) (per curiam); Ohio v. Akron
Center for Reproductive Health, 497 U. S. 502 (1990); Hodgson v. Minne-
sota, 497 U. S. 417 (1990); Williams v. Zbaraz, 448 U. S. 358 (1980); Har-
ris v. McRae, 448 U. S. 297 (1980); Bellotti v. Baird, 443 U. S. 622 (1979);
Roe v. Wade, 410 U. S. 113 (1973). More recently, abortion patients have
litigated in the lower courts using their names, those of legal guardians,
or pseudonyms. Brief for Respondent/Cross-Petitioner 39; see also Brief
for State of Arkansas et al. as Amici Curiae 3, and n. 1.
Cite as: 591 U. S. ____ (2020) 31
ALITO, J., dissenting
support of this strange proposition, the plurality cites two
of our prior decisions, but neither decision acknowledged or
addressed any potential conflict of interest, and both cases
involved circumstances very different from those present
here. Both cases also featured facts assuring that third-
party interests were fairly represented.
In the first case, Craig v. Boren, 429 U. S. 190 (1976), the
sole appellant with a live claim at the time of decision was
a beer vendor who challenged a law that allowed females to
purchase 3.2% beer at the age of 18 but barred males from
making such purchases until they turned 21. Id., at 193.
The Court’s lead explanation for its refusal to dismiss had
nothing to do with the merits of the vendor’s third-party
standing claim. The Court noted that the other appellant,
Curtis Craig, had been under the age of 21 during the pro-
ceedings below, that the appellees had not raised a standing
objection below, and that they had not pressed an objection
in this Court. Id., at 192–194.
Only after this discussion did the Court say anything
about the merits of the third-party claim, and even then,
the Court said nothing about a conflict of interest between
the vendor and underage males. The plurality now claims
there was a potential conflict: Young men under the age of
21 had an interest in being barred from buying beer in order
to protect themselves from their own reckless conduct. Suf-
fice it to say that there is no indication that this supposed
conflict occurred to anybody when Craig was before this
Court.
The plurality’s second case, Department of Labor v. Tri-
plett, 494 U. S. 715 (1990), is even weaker. A state bar eth-
ics committee filed a disciplinary proceeding in state court
against a lawyer who had entered into an attorney-fee ar-
rangement that was prohibited by a provision of the Black
Lung Benefits Act. When the State Supreme Court ruled
in favor of the lawyer on the ground that the provision in
question violated Black Lung claimants’ constitutional
32 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
right to counsel, both the bar ethics committee and the De-
partment of Labor, which had intervened in state court,
successfully petitioned for review in this Court. We then
held that the attorney could defend the decision below
based on the rights of his client.
Triplett is inapposite here for at least two reasons. First,
the lawyer in that case did not initiate the litigation. Sec-
ond, because the case arose in state court, his right to in-
voke his client’s rights in that forum was a question of state
law. Had we prevented him from asserting those rights in
this Court, he would have been unable to defend himself
against the petitioners’ arguments. And on top of all this,
Triplett, as we noted in Kowalski, “involved the representa-
tion of known claimants,” and that “existing attorney-client
relationship [was] quite different from the hypothetical . . .
relationship” between the abortion providers and clients in
the present case. 543 U. S., at 131. That Craig and
Triplett are the best authorities the plurality can find is
telling proof of the weakness of its position.
F
As THE CHIEF JUSTICE points out, stare decisis generally
counsels adherence to precedent, and in deciding whether
to overrule a prior decision, we consider factors beyond the
strength of the precedent’s reasoning. Ante, at 3–4. But
here, such factors weigh in favor of overruling.
Reexamination of a precedent may be appropriate when
it is an “outlier” and its reasoning cannot be reconciled with
other established precedents, see Franchise Tax Bd. of Cal.
v. Hyatt, 587 U. S. ___, ___ (2019) (slip op., at 17); Janus v.
State, County, and Municipal Employees, 585 U. S. ___, ___
(2018) (slip op., at 43); United States v. Gaudin, 515 U. S.
506, 521 (1995); Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U. S. 477, 484 (1989), and that is true of
the rule allowing abortion providers to assert their patients’
rights. The parties have not brought to our attention any
Cite as: 591 U. S. ____ (2020) 33
ALITO, J., dissenting
other situation in which a party is allowed to invoke the
right of a third party with blatantly adverse interests. The
rule that the majority applies here is an abortion-only rule.
THE CHIEF JUSTICE properly notes that subsequent legal
developments may support overruling a precedent, ante, at
3–4, and that factor too is present here. Both our general
standing jurisprudence and our treatment of third-party
standing have changed since Singleton. We have stressed
the importance of insisting that a plaintiff assert an injury
that is particular to its own situation. See, e.g., Spokeo, Inc.
v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 7); Clapper
v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013); Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560 (1992). Moreover,
in Kowalski, 543 U. S. 125, we refined our rule for third-
party standing, and in Newdow, 542 U. S. 1, we made it
clear that a plaintiff cannot sue on behalf of a third party if
the parties’ interests may conflict.
The presence or absence of reliance is often a critical fac-
tor in applying the doctrine of stare decisis, see, e.g., Fran-
chise Tax Bd., 587 U. S., at ___ (slip op., at 17); Janus, 585
U. S., at ___ (slip op., at 44); South Dakota v. Wayfair, Inc.,
585 U. S. ___, ___ (2018) (slip op., at 20); Hilton v. South
Carolina Public Railways Comm’n, 502 U. S. 197, 206–207
(1991), but neither the plurality nor THE CHIEF JUSTICE
claims that any reliance interests are at stake here.
Women wishing to obtain abortions have not taken any ac-
tion in reliance on the ability of abortion providers to sue on
their behalf, and eliminating third-party standing for pro-
viders would not interfere with the ability of women to sue.
Nor does it appear that abortion providers have done any-
thing in reliance on the special third-party standing rule
they have enjoyed. If that rule were abrogated, they could
still ask to intervene or appear as an amicus curiae in a suit
brought by a woman, but it is deeply offensive to our rules
of standing to permit them to sue in the name of their pa-
34 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
ALITO, J., dissenting
tients when they challenge laws enacted to protect their pa-
tients’ safety.
On remand, the District Court should permit the joinder
of a plaintiff with standing and should not proceed until
such a plaintiff appears.
* * *
The decision in this case, like that in Whole Woman’s
Health, twists the law, and I therefore respectfully dissent.
Cite as: 591 U. S. ____ (2020) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1323 and 18–1460
_________________
JUNE MEDICAL SERVICES L.L.C., ET AL.,
PETITIONERS
18–1323 v.
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, PETITIONER
18–1460 v.
JUNE MEDICAL SERVICES L.L.C., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 29, 2020]
JUSTICE GORSUCH, dissenting.
The judicial power is constrained by an array of rules.
Rules about the deference due the legislative process, the
standing of the parties before us, the use of facial challenges
to invalidate democratically enacted statutes, and the
award of prospective relief. Still more rules seek to ensure
that any legal tests judges may devise are capable of neu-
tral and principled administration. Individually, these
rules may seem prosaic. But, collectively, they help keep us
in our constitutionally assigned lane, sure that we are in
the business of saying what the law is, not what we wish it
to be.
Today’s decision doesn’t just overlook one of these rules.
It overlooks one after another. And it does so in a case
2 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
touching on one of the most controversial topics in contem-
porary politics and law, exactly the context where this
Court should be leaning most heavily on the rules of the
judicial process. In truth, Roe v. Wade, 410 U. S. 113(1973), is not even at issue here. The real question we face
concerns our willingness to follow the traditional con-
straints of the judicial process when a case touching on
abortion enters the courtroom.
*
When confronting a constitutional challenge to a law, this
Court ordinarily reviews the legislature’s factual findings
under a “deferential” if not “[u]ncritical” standard. Gonza-
les v. Carhart, 550 U. S. 124, 165–166 (2007). When facing
such a challenge, too, this Court usually accepts that “the
public interest has been declared in terms well-nigh conclu-
sive” by the legislature’s adoption of the law—so we may
review the law only for its constitutionality, not its wisdom.
Berman v. Parker, 348 U. S. 26, 32 (1954). Today, however,
the plurality declares that the law before us holds no bene-
fits for the public and bears too many social costs. All while
sharing virtually nothing about the facts that led the legis-
lature to conclude otherwise. The law might as well have
fallen from the sky.
Of course, that’s hardly the case. In Act 620, Louisiana’s
legislature found that requiring abortion providers to hold
admitting privileges at a hospital within 30 miles of the
clinic where they perform abortions would serve the public
interest by protecting women’s health and safety. Those in
today’s majority never bother to say so, but it turns out that
Act 620’s admitting privileges requirement for abortion pro-
viders tracks longstanding state laws governing physicians
who perform relatively low-risk procedures like colonosco-
pies, Lasik eye surgeries, and steroid injections at ambula-
tory surgical centers. In fact, the Louisiana legislature
Cite as: 591 U. S. ____ (2020) 3
GORSUCH, J., dissenting
passed Act 620 only after extensive hearings at which ex-
perts detailed how the Act would promote safer abortion
treatment—by providing “a more thorough evaluation
mechanism of physician competency,” promoting “continu-
ity of care” following abortion, enhancing inter-physician
communication, and preventing patient abandonment.
Testifying physicians explained, for example, that abor-
tions carry inherent risks including uterine perforation,
hemorrhage, cervical laceration, infection, retained fetal
body parts, and missed ectopic pregnancy. Unsurprisingly,
those risks are minimized when the physician providing the
abortion is competent. Yet, unlike hospitals which under-
take rigorous credentialing processes, Louisiana’s abortion
clinics historically have done little to ensure provider com-
petence. Clinics have failed to perform background checks
or to inquire into the training of doctors they brought on
board. Clinics have even hired physicians whose specialties
were unrelated to abortion—including a radiologist and an
ophthalmologist. Requiring hospital admitting privileges,
witnesses testified, would help ensure that clinics hire com-
petent professionals and provide a mechanism for ongoing
peer review of physician proficiency. Loss of admitting priv-
ileges, as well, might signal a problem meriting further in-
vestigation by state officials. At least one Louisiana abor-
tion provider’s loss of admitting privileges following a
patient’s death alerted the state licensing board to ques-
tions about his competence, and ultimately resulted in re-
strictions on his practice.
The legislature also heard testimony that Louisiana’s
clinics and the physicians who work in them have racked
up dozens of citations for safety and ethical violations in re-
cent years. Violations have included failing to use sterile
equipment, maintaining unsanitary conditions, failing to
monitor patients’ vital signs, permitting improper admin-
istration of medications by unauthorized persons, and ne-
glecting to obtain informed consent from patients. Some
4 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
clinics have failed to maintain supplies of emergency medi-
cations and medical equipment for treating surgical compli-
cations. One clinic used single-use hoses and tubes on mul-
tiple patients, and the solution needed to sterilize
instruments was changed so infrequently that it often had
pieces of tissue floating in it. Hospital credentialing pro-
cesses, witnesses suggested, could help prevent such viola-
tions. In the course of the credentialing process, physicians’
prior safety lapses, including criminal violations and medi-
cal malpractice suits, would be revealed and investigated,
and incompetent doctors might be weeded out.
The legislature heard, too, from affected women and
emergency room physicians about clinic doctors’ record of
abandoning their patients. One woman testified that, while
she was hemorrhaging, her abortion provider told her,
“ ‘You’re on your own. Get out.’ ” Eventually, the woman
went to a hospital where an emergency room physician re-
moved fetal body parts that the abortion provider had left
in her body. Another patient who complained of severe pain
following her abortion was told simply to go home and lie
down. When she decided for herself to go to the emergency
room, physicians discovered a tear in her uterus and a large
hematoma containing a fetal head. The woman required an
emergency hysterectomy. In another case, a clinic physi-
cian allowed a patient to bleed for three hours, yet a clinic
employee testified that the physician would not let her call
911 because of possible media involvement. In the end, the
employee called anyway and emergency room personnel
discovered that the woman had a perforated uterus and a
needed a hysterectomy. A different physician explained
that she routinely treats abortion complications in the
emergency room when the physician who performed the
abortion lacks admitting privileges. In her experience, that
situation “puts a woman’s health at an unnecessary, unac-
ceptable risk that results from a delay of care . . . and a lack
of continuity of care.” Admitting privileges would mitigate
Cite as: 591 U. S. ____ (2020) 5
GORSUCH, J., dissenting
these risks, she testified, because “the physician who per-
formed the procedure would be the one best equipped to
evaluate and treat the patient.”
Nor did the legislature neglect to consider the law’s po-
tential burdens. As witnesses explained, the admitting
privileges requirement in Act 620 for abortion clinic provid-
ers would parallel existing requirements for many physi-
cians who work at ambulatory surgical centers. And there
is no indication this parallel admitting privileges require-
ment has led to the closing of any surgical centers or other-
wise presented obstacles to quality care in Louisiana. Fur-
ther, legislators learned that at least one Louisiana
abortion provider already had qualifying admitting privi-
leges, suggesting other competent abortion providers would
be able to comply with the new regulation as well.
Since trial, the State continues to accrue evidence sup-
porting Act 620, and the State has sought to lodge that evi-
dence with this Court. In particular, the State has learned
of additional safety violations at Louisiana clinics, includ-
ing evidence of an abortion provider deviating from the
standard of care in a way that can result in the live births
of nonviable fetuses. The State has also proffered new evi-
dence of potential criminal conduct by Louisiana abortion
providers, including the failure to report the forcible rape of
a minor and performing an abortion on a minor without pa-
rental consent or judicial bypass.
*
After overlooking so many facts and the deference owed
to the legislative process, today’s decision misapplies many
of the rules that normally constrain the judicial process.
Start with the question who can sue. To establish standing
in federal court, a plaintiff typically must assert an injury
to her own legally protected interests—not the rights of
someone else. Warth v. Seldin, 422 U. S. 490, 499 (1975).
This rule ensures that the judiciary stays focused on the
6 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
“factual situation before it,” New York v. Ferber, 458 U. S.
747, 768 (1982), while “questions of wide public signifi-
cance” remain with “governmental institutions . . . more
competent to address” them, Warth, 422 U. S., at 500.
No one even attempts to suggest this usual prerequisite
is satisfied here. The plaintiffs before us are abortion pro-
viders. They do not claim a constitutional right to perform
that procedure, and no one on the Court contends they hold
such a right. Instead, the abortion providers before us seek
only to assert the constitutional rights of an undefined, un-
named, indeed unknown, group of women who they hope
will be their patients in the future.
In narrow circumstances, to be sure, this Court has al-
lowed cases to proceed based on “third-party standing.” But
to qualify, the plaintiff must demonstrate both that he has
a “ ‘close’ relationship” with the person whose rights he
wishes to assert and that some “ ‘hindrance’ ” hampers the
right-holder’s “ability to protect his own interests.” Kow-
alski v. Tesmer, 543 U. S. 125, 130 (2004). Think of parents
and children, guardians and wards. In these special cases,
the logic goes, the plaintiff ’s interests are so aligned with
those of a particular right-holder that the litigation will pro-
ceed in much the same way as if the right-holder herself
were present.
Nothing like that exists here. In the first place, the plain-
tiff abortion providers identify no reason to think affected
women are unable to assert their own rights if they wish.
Instead, the plaintiffs merely gesture to a 1976 plurality
opinion suggesting that women seeking abortions “gener-
ally” face a hindrance in asserting their own rights. Single-
ton v. Wulff, 428 U. S. 106, 118 (1976). But whatever the
supposition of a 1976 plurality, in the years since interested
women have challenged abortion regulations on their own
behalf in case after case. See, e.g., McCormack v. Herzog,
788 F. 3d 1017 (CA9 2015); Jane L. v. Bangerter, 102 F. 3d
1112 (CA10 1996); Margaret S. v. Edwards, 794 F. 2d 994Cite as: 591 U. S. ____ (2020) 7
GORSUCH, J., dissenting
(CA5 1986); see also Whole Woman’s Health v. Hellerstedt,
579 U. S. ___, ___ (2016) (THOMAS, J., dissenting) (slip op.,
at 4) (collecting additional examples). And no one suggests
this suit differs from those cases in any meaningful way.
The truth is transparent: The plaintiffs hardly try to carry
their burden of showing a hindrance because they can’t.
Separately and additionally, the abortion providers can-
not claim a “close relationship” with the women whose
rights they assert. Normally, the fact that the plaintiffs do
not even know who those women are would be enough to
preclude third-party standing. This Court has held, for ex-
ample, that a future “hypothetical attorney-client relation-
ship” (as opposed to an “existing” one) cannot confer third-
party standing. Kowalski, 543 U. S., at 131. Likewise, this
Court has held that a pediatrician lacks standing to defend
a State’s abortion laws on the theory that fetuses are his
future potential patients. Diamond v. Charles, 476 U. S.
54, 66 (1986). If standing isn’t present in cases like those,
it is hard to see how it might be present in this one.
Nor is that the end of the plaintiffs’ standing problems.
Even when a plaintiff can identify an actual and close rela-
tionship, this Court will normally refuse third-party stand-
ing if the plaintiff has a potential conflict of interest with
the person whose rights are at issue. See Elk Grove Unified
School Dist. v. Newdow, 542 U. S. 1, 15, 17–18 (2004). And
it’s pretty hard to ignore the potential for conflict here. Af-
ter all, Louisiana’s law expressly aims to protect women
from the unsafe conditions maintained by at least some
abortion providers who, like the plaintiffs, are either un-
willing or unable to obtain admitting privileges. Cf. ante,
at 25–27 (ALITO, J., dissenting).
Seeking to set all these difficulties aside, today’s decision
contends that Louisiana has waived its prudential standing
arguments. But in doing so, today’s decision mistakes three
more legal principles. First, what the plurality character-
8 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
izes as a waiver arises from the State’s admission that ap-
plicable circuit law allowed the plaintiffs standing. At
worst, that reflects a forfeiture of, or a failure to pursue, a
possible argument against standing, not an affirmative
waiver of the argument, or an intentional relinquishment
of any interest in the issue. Cf. ante, at 24–25 (ALITO, J.,
dissenting). Second, this Court typically relies on a forfei-
ture or even a waiver only if the issue was “ ‘not pressed or
passed upon’ ” in the lower courts. United States v. Wil-
liams, 504 U. S. 36, 41 (1992). That rule’s disjunctive
phrasing is no accident—it “permit[s] review of an issue not
pressed so long as it has been passed upon” below. Ibid.Here, the Fifth Circuit did pass upon the standing ques-
tion—so forfeiture or waiver presents no impediment to our
review. See June Medical Services, L.L.C. v. Gee, 814 F. 3d
319, 322–323 (2016). Finally, this Court has held that even
truly forfeited or waived arguments may be entertained
when structural concerns or third-party rights are at issue.
Freytag v. Commissioner, 501 U. S. 868, 878–880 (1991).
Both conditions are present here.
*
Next consider our rules about facial challenges. Gener-
ally, courts decide the constitutionality of statutes as ap-
plied to specific people in specific situations and disfavor
facial challenges seeking to forestall a law’s application in
every circumstance. The reasons for this rule are many.
Not least, when a court focuses on the parties before it, it is
able to assess the law’s application within a real factual
context, rather than left to imagine “every conceivable situ-
ation which might possibly arise in the application of com-
plex and comprehensive legislation.” Barrows v. Jackson,
346 U. S. 249, 256 (1953). Importantly, too, as-applied chal-
lenges reduce the risk that a court will “short circuit the
democratic process” by interfering with legislation any
Cite as: 591 U. S. ____ (2020) 9
GORSUCH, J., dissenting
more than necessary to remedy a complaining party’s in-
jury. Washington State Grange v. Washington State Repub-
lican Party, 552 U. S. 442, 451 (2008).
As a result, the path for a litigant pursuing a facial chal-
lenge is deliberately difficult. Typically, a plaintiff seeking
to render a law unenforceable in all of its applications must
show that the law cannot be constitutionally applied
against anyone in any situation. United States v. Stevens,
559 U. S. 460, 472–473 (2010). This Court has carved out
an exception to this high bar for overbreadth challenges un-
der the First Amendment. Some suggest this exception is
ill-advised. United States v. Sineneng-Smith, 590 U. S. ___,
___–___ (2020) (THOMAS, J., concurring) (slip op., at 5–6).
But even in First Amendment overbreadth challenges, a
plaintiff still must show that the law in question has “ ‘a
substantial number of . . . applications [ that] are unconsti-
tutional, judged in relation to the statute’s plainly legiti-
mate sweep.’ ” Stevens, 559 U. S., at 473 (quoting Washing-
ton State Grange, 552 U. S., at 449, n. 6); see also Stevens,
559 U. S., at 481–482 (holding law unconstitutional under
First Amendment where “impermissible applications . . .
far outnumber[ed] any permissible ones”).
Today, it seems any of these standards would demand too
much. Instead of asking whether the law has a “substantial
number of unconstitutional applications” compared to its
“legitimate sweep,” the plurality asks whether the law will
impose a “ ‘substantial obstacle’ ” for a “ ‘large fraction’ ” of
“ ‘those women for whom the provision is an actual rather
than an irrelevant restriction.’ ” Ante, at 39. Concededly,
the two tests sound similar—after all, who could say
whether a “substantial number” is more or less than a
“large fraction”? But notice the switch at the end, where
the plurality limits our focus to women for whom the law is
an “actual” restriction. Because of that limitation, it doesn’t
matter how many women continue to have convenient ac-
10 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
cess to abortions: Any woman not burdened by the chal-
lenged law is deemed “irrelevant” to the analysis. So in-
stead of asking how the law’s unconstitutional applications
compare to its legitimate sweep, the plurality winds up ask-
ing only whether the law burdens a very large fraction of
the people that it burdens. The words might sound famil-
iar, but this circular test is unlike anything we apply to fa-
cial challenges anywhere else.
Abandoning our usual caution with facial challenges
leads, predictably, to overbroad conclusions. Suppose that
for a substantial number of women Louisiana’s law imposes
no burden at all. These women might live in an area well-
served by well-qualified abortion providers who can easily
obtain admitting privileges. No one could dispute the law
is constitutional as applied to these women and providers.
But suppose the law makes it difficult to obtain an abortion
on the other side of the State, where qualified providers are
fewer and farther between. Under the standard applied to-
day, it seems the entire law would fall statewide, notwith-
standing its undeniable constitutionality in many applica-
tions.
Nor is this possibility farfetched. Today’s decision de-
clares the admitting privileges requirement unconstitu-
tional even as applied to Does 3 and 5, each of whom holds
admitting privileges. Not a single woman would be bur-
dened by requiring these doctors to maintain the privileges
they already have. Yet the State may not enforce the law
even against them. In effect, the standard for facial chal-
lenges has been flipped on its head: Rather than requiring
that a law be unconstitutional in all its applications to fall,
today’s decision requires that Louisiana’s law be constitu-
tional in all its applications to stand.
*
Cite as: 591 U. S. ____ (2020) 11
GORSUCH, J., dissenting
Even when it comes to assessing the law’s effects on the
subset of women deemed “relevant,” this case proves unu-
sual. Normally, to obtain a prospective injunction like the
one approved today, a plaintiff must show that irreparable
injury is not just possible, but likely. O’Shea v. Littleton,
414 U. S. 488, 501–502 (1974); Winter v. Natural Resources
Defense Council, Inc., 555 U. S. 7, 22 (2008). Yet, nothing
like that standard can be found at work today.
The plaintiffs allege that statewide enforcement of Act
620 would irreparably injure Louisiana women by making
it difficult for them to obtain abortions. To justify injunc-
tive relief on that theory, however, it can’t be enough to
show that the law would induce any particular doctor or
clinic to stop providing abortions. Instead, the plaintiffs
would have to show that a sufficient number of clinics
would close (without enough new clinics opening) so that
supply would no longer meet demand for abortion in the
State. And when assessing claims like that, we usually pro-
ceed with caution, aware of the “the difficulties and uncer-
tainties involved in determining how [a] relevant market”
would behave in response to changed circumstances. Illi-
nois Brick Co. v. Illinois, 431 U. S. 720, 743 (1977). At a
minimum, we expect one change in a marketplace—such as
the introduction of a new regulation—will induce other re-
sponsive changes. General Motors Corp. v. Tracy, 519 U. S.
278, 307–309 (1997). When “the claim is one that simply
makes no economic sense,” too, the plaintiffs “must come
forward with more persuasive evidence to support their
claim than would otherwise be necessary.” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574,
587 (1986).
Rather than follow these rules, today’s decision proceeds
to accept one speculative proposition after another to arrive
at what can only be called a worst case scenario. Take the
question whether existing providers will be able to continue
12 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
their existing practices. On its way to predicting dire re-
sults, the plurality uncritically accepts that, if Act 620 went
into effect, Doe 5 would be unable to obtain admitting priv-
ileges in Baton Rouge. The plurality does so even though it
is undisputed that the sole remaining step for him to obtain
privileges is to find a doctor willing to cover for him—and
that Doe 5 gave up on that effort after asking only one doc-
tor. Similarly, the plurality takes it as given that Doe 2
would be denied admitting privileges even though he
dropped a pending application when the hospital simply
sent him a request for additional information. Maybe these
physicians didn’t feel it was worth putting in much effort to
obtain admitting privileges given their chances of prevail-
ing in this lawsuit. But it “taxes the credulity of the credu-
lous” to think they would have treated the process so lightly
if their livelihood depended on securing admitting privi-
leges. Maryland v. King, 569 U. S. 435, 466 (2013) (Scalia,
J., dissenting). Cf. ante, at 12–24 (ALITO, J., dissenting).
That example only begins to illustrate the remarkably
static view of the market on display here. Today’s decision
also appears to assume that, if Louisiana’s law took effect,
not a single hospital would amend its rules to permit abor-
tion providers easier access to admitting privileges; no
clinic would choose to relocate closer to a hospital that offers
admitting privileges rather than permanently close its
doors; the prospect of significant unmet demand would not
prompt a single Louisiana doctor with established admit-
ting privileges to begin performing abortions; and unmet
demand would not induce even one out-of-state abortion
provider to relocate to Louisiana.
All these assumptions are open to question. Hospitals
can (and do) change their policies in response to regula-
tions. Clinic operators have opened, closed, and relocated
clinics numerous times. There are hundreds of OB/GYNs
with active admitting privileges in Louisiana who could
Cite as: 591 U. S. ____ (2020) 13
GORSUCH, J., dissenting
lawfully perform abortions tomorrow. Millions of Ameri-
cans move between States every year to pursue their pro-
fession. Yet with conditions ripe for market entry and ex-
pansion, today’s decision foresees nothing but clinic
closures and unmet demand.
Not only questionable, the plurality’s assumptions are al-
ready contradicted by emerging evidence. For example, a
major hospital reacted to the law by developing a new type
of admitting privileges expressly for an abortion provider
seeking to comply with Act 620. Whether this type of priv-
ileges satisfies the statute is yet unknown—so, again as-
suming the worst, today’s decision simply ignores the pos-
sibility. If nothing else, this development belies the
prediction that hospitals statewide would stand idly by as
thousands upon thousands of requests for abortions go un-
fulfilled.
What’s more, as this suit was in progress, the State dis-
covered two additional Louisiana abortion providers not re-
flected in the district court’s opinion. No one disputes the
accuracy of the State’s information about these two provid-
ers. Nor could anyone deny the importance of this infor-
mation, when so much of today’s decision seems to turn on
the exact quantity and distribution of a relatively small
number of abortion providers. Normally, this Court might
hesitate to deliver a fact-bound decision premised on facts
we know to be incorrect. But today’s decision, assuming the
worst once more, simply proceeds as if these providers
didn’t exist.
If there is a silver lining, though, it may be here. This
Court generally recognizes that facts can change over
time—and that, when they do, legal conclusions based on
them may have to change as well. Even so-called “perma-
nent injunctions” are actually provisional—open to modifi-
cation “to prevent the possibility that [they] may operate
injuriously in the future.” Glenn v. Field Packing Co., 290
U. S. 177, 179 (1933) (per curiam). After all, when the facts
14 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
change, the law cannot pretend nothing has happened. For
that reason, we have instructed lower courts to reconsider
injunctions “when the party seeking relief . . . can show a
significant change either in factual conditions or in law.”
Agostini v. Felton, 521 U. S. 203, 215 (1997) (internal quo-
tation marks omitted). And, given the fact-intensive nature
of today’s analysis, the relief directed might well need to be
reconsidered below if, for example, hospitals start offering
qualifying admitting privileges to abortion providers, a
handful of abortion providers relocate from other States, or
even a tiny fraction of Louisiana’s existing OB/GYNs decide
to begin performing abortions. Given the post-trial devel-
opments Louisiana has already identified but no court has
yet considered, there’s every reason to think the factual con-
text here is prone to significant changes.
*
Another background rule, another exception. When it
comes to the factual record, litigants normally start the case
on a clean slate. While a previous case’s legal rules can cre-
ate precedent binding in the current dispute, earlier “fact-
bound” decisions typically “provide only minimal help when
other courts consider” later cases with different factual “cir-
cumstances.” Buford v. United States, 532 U. S. 59, 65–66
(2001). We’ve long recognized that this arrangement is re-
quired by due process—because while the law binds every-
one equally, parties are normally entitled to the chance to
present evidence about their own unique factual circum-
stances. See Blonder-Tongue Laboratories, Inc. v. Univer-
sity of Ill. Foundation, 402 U. S. 313, 329 (1971).
No hint of these rules can be found in today’s decision.
From beginning to end, the plurality treats Whole Woman’s
Health’s fact-laden predictions about how a Texas law
would impact the availability of abortion in that State in
2016 as if they obviously and necessarily applied to Louisi-
ana in 2020. Most notably, the plurality cites Whole
Cite as: 591 U. S. ____ (2020) 15
GORSUCH, J., dissenting
Woman’s Health for the proposition that admitting privi-
leges requirements offer no benefit when it comes to patient
safety or otherwise. But Whole Woman’s Health found an
absence of benefit based only on the particular factual rec-
ord before it. Nothing in the decision suggested that its con-
clusions about the costs and benefits of the Texas statute
were universal principles of law, medicine, or economics
true in all places and at all times. See, e.g., 579 U. S., at
___–___, ___, ___–___ (slip op., at 22–23, 26, 31–32). Yet
that is exactly how the plurality treats those conclusions—
all while leaving unmentioned the facts Louisiana amassed
in an effort to show that its law promises patient benefits
in this place at this time.
Not only does today’s decision treat factual questions as
if they were legal ones, it treats legal questions as if they
were facts. We have previously explained that it would “be
inconsistent with the idea of a unitary system of law” for
the Supreme Court to defer to lower court legal holdings.
Ornelas v. United States, 517 U. S. 690, 697 (1996). Yet,
the plurality today reviews for clear error not only the dis-
trict court’s findings about how the law will affect abortion
access, but also the lower court’s judgment that the law’s
effects impose a “substantial obstacle.” The plurality defers
not only to the district court’s findings about the extent of
the law’s benefits, but also to the lower court’s judgment
that the benefits are so limited that the law’s burden on
abortion access is “undue.” By declining to apply our nor-
mal de novo standard of review to questions of law like
these, today’s decision proceeds on the remarkable premise
that, even if the district court was wrong on the law, a duly
enacted statute must fall because the lower court wasn’t
clearly wrong.
*
After so much else, one might at least hope that the legal
test lower courts are tasked with applying in this area turns
16 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
out to be replicable and predictable. After all, “[l]iving un-
der a rule of law entails various suppositions, one of which
is that ‘all persons are entitled to be informed as to what
the State commands or forbids.’ ” Papachristou v. Jackson-
ville, 405 U. S. 156, 162 (1972) (quotation modified). The
existence of an administrable legal test even lies at the
heart of what makes a case justiciable—as we have put it,
federal courts may not entertain a question unless there are
“ ‘judicially discoverable and manageable standards for re-
solving it.’ ” Rucho v. Common Cause, 588 U. S. ___, ___
(2019) (slip op., at 11). Nor does the need for clear rules
dissipate as the stakes grow. If anything, the judicial re-
sponsibility to avoid standardless decisionmaking is at its
apex in “ ‘the most heated partisan issues.’ ” Id., at ___ (slip
op., at 15).
Consider, for example, our precedents involving the First
Amendment’s right to free speech. In an effort to keep
judges from straying into the political fray, this Court has
provided a detailed roadmap: A court must determine
whether protected speech is at issue, whether the re-
striction is content based or content neutral, whether the
State’s asserted interest is compelling or substantial, and
whether the State might rely on less restrictive alternatives
to achieve the same goals. At no point may a judge simply
“ ‘balanc[e]’ the governmental interests . . . against the First
Amendment rights” at stake because, as we have recog-
nized, it would be “inappropriate” for any court “to label one
as being more important or more substantial than the
other.” United States v. Robel, 389 U. S. 258, 268, n. 20
(1967). Any such raw balancing of competing social inter-
ests must be left to the legislature—“our inquiry is more
circumscribed.” Ibid. Nor is this idea unique to the First
Amendment context. This Court has consistently rejected
the idea that courts may decide constitutional issues by re-
lying on “abstract opinions . . . of the justice of the decision”
Cite as: 591 U. S. ____ (2020) 17
GORSUCH, J., dissenting
or “of the merits of the legislation” at issue. Davidson v.
New Orleans, 96 U. S. 97, 104 (1878).
By contrast, and as today’s concurrence recognizes, the
legal standard the plurality applies when it comes to admit-
ting privileges for abortion clinics turns out to be exactly
the sort of all-things-considered balancing of benefits and
burdens this Court has long rejected. Really, it’s little more
than the judicial version of a hunter’s stew: Throw in any-
thing that looks interesting, stir, and season to taste. In
another context, this Court has described the sort of deci-
sionmaking on display today as “inherently, and therefore
permanently, unpredictable.” Crawford v. Washington, 541
U. S. 36, 68, n. 10 (2004). Under its terms, “[w]hether a
[burden] is deemed [undue] depends heavily on which fac-
tors the judge considers and how much weight he accords
each of them.” Id., at 63.
What was true there turns out to be no less true here.
The plurality sides with the district court in concluding that
the time and cost some women might have to endure to ob-
tain an abortion outweighs the benefits of Act 620. Perhaps
the plurality sees that answer as obvious, given its appar-
ent conclusion that the Act would offer the public no bene-
fits of any kind. But for its test to provide any helpful guid-
ance, it must be capable of resolving cases the plurality
can’t so easily dismiss. Suppose, for example, a factfinder
credited the State’s evidence of medical benefit, finding that
a small number of women would obtain safer medical care
if the law went into effect. But suppose the same factfinder
also credited a plaintiff ’s evidence of burden, finding that a
large number of women would have to endure longer wait
times and farther drives, and that a very small number of
women would be unable to obtain an abortion at all. How
is a judge supposed to balance, say, a few women’s emer-
gency hysterectomies against many women spending extra
hours travelling to a clinic? The plurality’s test offers no
18 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
guidance. Nor can it. The benefits and burdens are incom-
mensurable, and they do not teach such things in law
school.
When judges take it upon themselves to assess the raw
costs and benefits of a new law or regulation, it can come as
no surprise that “[s]ome courts wind up attaching the same
significance to opposite facts,” and even attaching the oppo-
site significance to the same facts. Ibid. It can come as no
surprise, either, that judges retreat to their underlying as-
sumptions or moral intuitions when deciding whether a
burden is undue. For what else is left?
Some judges have thrown up their hands at the task put
to them by the Court in this area. If everything comes down
to balancing costs against benefits, they have observed, “the
only institution that can give an authoritative answer” is
this Court, because the question isn’t one of law at all and
the only “balance” that matters is the one this Court strikes.
Planned Parenthood of Ind. & Ky. v. Box, 949 F. 3d 997, 999
(CA7 2019) (Easterbrook, J., concurring in denial of rehear-
ing en banc). The lament is understandable. Missing here
is exactly what judges usually depend on when asked to
make tough calls: an administrable legal rule to follow, a
neutral principle, something outside themselves to guide
their decision.
*
Setting aside the other departures from the judicial pro-
cess on display today, the concurrence suggests it can rem-
edy at least this one. We don’t need to resort to a raw bal-
ancing test to resolve today’s dispute. A deeper respect for
stare decisis and existing precedents, the concurrence as-
sures us, supplies the key to a safe way out. Unfortunately,
however, the reality proves more complicated.
Start with the concurrence’s discussion of Whole
Woman’s Health. Immediately after paying homage to stare
Cite as: 591 U. S. ____ (2020) 19
GORSUCH, J., dissenting
decisis, the concurrence refuses to follow the all-things-con-
sidered balancing test that decision employed when strik-
ing down Texas’s admitting privileges law. In the process,
the concurrence rightly recounts many of the problems with
raw balancing tests. But then, switching directions again,
the concurrence insists we are bound by an alternative hold-
ing in Whole Woman’s Health. According to the concur-
rence, this alternative holding declared that the Texas law
imposed an impermissible “substantial obstacle” to abor-
tion access in light only of the burdens the law imposed—
“independent of [any] discussion of [the law’s] benefits.”
Ante, at 11 (ROBERTS, C. J., concurring in judgment). And,
the concurrence concludes, because the facts of this suit
look like those in Whole Woman’s Health, we must find an
impermissible substantial obstacle here too.
But in this footwork lie at least two missteps. For one,
the facts of this suit cannot be so neatly reduced to Whole
Woman’s Health redux. See ante, at 2–5; ante, at 9–11, 15–
24 (ALITO, J. dissenting). For another, Whole Woman’s
Health nowhere issued the alternative holding on which the
concurrence pins its argument. At no point did the Court
hold that the burdens imposed by the Texas law alone—di-
vorced from any consideration of the law’s benefits—could
suffice to establish a substantial obstacle. To the contrary,
Whole Woman’s Health insisted that the substantial obsta-
cle test “requires that courts consider the burdens a law im-
poses on abortion access together with the benefits th[e]
la[w] confer[s].” 578 U. S., at ___–___ (emphasis added)
(slip op., at 19–20). And whatever else respect for stare de-
cisis might suggest, it cannot demand allegiance to a non-
existent ruling inconsistent with the approach actually
taken by the Court.
The concurrence’s fallback argument doesn’t solve the
problem either. So what if Whole Woman’s Health rejected
the benefits-free version of the “substantial obstacle” test
the concurrence endorses? The concurrence assures us that
20 JUNE MEDICAL SERVICES L.L.C. v. RUSSO
GORSUCH, J., dissenting
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), specified this form of the test, so we must (or at
least may) do the same, whatever Whole Woman’s Health
says.
But here again, the concurrence rests on at least one mis-
taken premise. In the context of laws implicating only the
State’s interest in fetal life previability, the Casey plurality
did describe its “undue burden” test as asking whether the
law in question poses a substantial obstacle to abortion ac-
cess. 505 U. S., at 878. But when a State enacts a law “to
further the health or safety of a woman seeking an abor-
tion,” the Casey plurality added a key qualification: Only
“[u]nnecessary health regulations that have the purpose or
effect of presenting a substantial obstacle to a woman seek-
ing an abortion impose an undue burden on the right.” Ibid.(emphasis added). That qualification is clearly applicable
here, yet the concurrence nowhere addresses it, applying
instead a new test of its own creation. In the context of
medical regulations, too, the concurrence’s new test might
even prove stricter than strict scrutiny. After all, it's possi-
ble for a regulation to survive strict scrutiny if it is narrowly
tailored to advance a compelling state interest. And no one
doubts that women’s health can be such an interest. Yet,
under the concurrence’s test it seems possible that even the
most compelling and narrowly tailored medical regulation
would have to fail if it placed a substantial obstacle in the
way of abortion access. Such a result would appear to cre-
ate yet another discontinuity with Casey, which expressly
disavowed any test as strict as strict scrutiny. Id., at 871.
*
To arrive at today’s result, rules must be brushed aside
and shortcuts taken. While the concurrence parts ways
with the plurality at the last turn, the road both travel leads
us to a strangely open space, unconstrained by many of the
Cite as: 591 U. S. ____ (2020) 21
GORSUCH, J., dissenting
neutral principles that normally govern the judicial pro-
cess. The temptation to proceed this direction, closer with
each step toward an unobstructed exercise of will, may be
always with us, a danger inherent in judicial review. But
it is an impulse this Court normally strives mightily to re-
sist. Today, in a highly politicized and contentious arena,
we prove unwilling, or perhaps unable, to resist that temp-
tation. Either way, respectfully, it is a sign we have lost our
way.
Cite as: 591 U. S. ____ (2020) 1
KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1323 and 18–1460
_________________
JUNE MEDICAL SERVICES L. L. C., ET AL.,
PETITIONERS
18–1323 v.
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
STEPHEN RUSSO, INTERIM SECRETARY,
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS, PETITIONER
18–1460 v.
JUNE MEDICAL SERVICES L. L. C., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 29, 2020]
JUSTICE KAVANAUGH, dissenting.
I join Parts I, II, and III of JUSTICE ALITO’s dissent. A
threshold question in this case concerns the proper stand-
ard for evaluating state abortion laws. The Louisiana law
at issue here requires doctors who perform abortions to
have admitting privileges at a hospital within 30 miles of
the abortion clinic. The State asks us to assess the law by
applying the undue burden standard of Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833(1992).1 The plaintiffs ask us to apply the cost-benefit
standard of Whole Woman’s Health v. Hellerstedt, 579 U. S.
___ (2016).
Today, five Members of the Court reject the Whole
——————
1 The State has not asked the Court to depart from the Casey standard.
2 JUNE MEDICAL SERVICES L. L. C. v. RUSSO
KAVANAUGH, J., dissenting
Woman’s Health cost-benefit standard. Ante, at 4–11
(ROBERTS, C. J., concurring in judgment); ante, at 14–20
(THOMAS, J., dissenting); ante, at 4 (ALITO, J., joined by
THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting);
ante, at 15–18 (GORSUCH, J., dissenting). A different five
Members of the Court conclude that Louisiana’s admitting-
privileges law is unconstitutional because it “would restrict
women’s access to abortion to the same degree as” the Texas
law in Whole Woman’s Health. Ante, at 12 (opinion of
ROBERTS, C. J.); see also ante, at 16–40 (opinion of BREYER,
J., joined by GINSBURG, SOTOMAYOR, and KAGAN, JJ.).
I agree with the first of those two conclusions. But I re-
spectfully dissent from the second because, in my view, ad-
ditional factfinding is necessary to properly evaluate Loui-
siana’s law. As JUSTICE ALITO thoroughly and carefully
explains, the factual record at this stage of plaintiffs’ facial,
pre-enforcement challenge does not adequately demon-
strate that the three relevant doctors (Does 2, 5, and 6) can-
not obtain admitting privileges or, therefore, that any of the
three Louisiana abortion clinics would close as a result of
the admitting-privileges law. I expressed the same concern
about the incomplete factual record more than a year ago
during the stay proceedings, and the factual record has not
changed since then. See June Medical Services, L.L.C. v.
Gee, 586 U. S. ___ (2019) (opinion dissenting from grant of
application for stay). In short, I agree with JUSTICE ALITO
that the Court should remand the case for a new trial and
additional factfinding under the appropriate legal stand-
ards.2
——————
2 In my view, the District Court on remand should also address the
State’s new argument (raised for the first time in this Court) that these
doctors and clinics lack third-party standing.