In deciding Dobbs v. Jackson Women’s Health, the Supreme Court issued a momentous constitutional ruling while suggesting that it lacked jurisdiction to do so. In particular, the Dobbs majority appears to state that the abortion providers who brought the case lacked standing to assert their patients’ abortion rights.
This point came up in a roundabout way. When making its case to overrule, the Court stated that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” As one salient example, the Court observed: “The Court’s abortion cases .… have ignored the Court’s third-party standing doctrine.” The Court then dropped the following footnote (with citations shortened):
“Compare Warth v. Seldin, 422 U.S. 490, 499 (1975), and Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 15, 17-18 (2004), with June Medical, 591 U.S., at ___ (ALITO, J., dissenting), id., at ___ – ___ (GORSUCH, J., dissenting) (collecting cases), and Whole Woman’s Health, 579 U.S. at 632, n. 1 (THOMAS, J., dissenting).”
The clear import of this passage is that abortion providers should not be afforded third-party standing to assert the rights of their patients. More specifically, the Court indicates that the June Medical and Whole Woman’s Health majorities were wrong to find that the abortion providers had standing. The dissenters in those cases, it seems, now hold sway. And, in fact, all three cited dissenters—Alito, Gorsuch, and Thomas—joined the Dobbs majority.
But Dobbs itself was a third-party standing case brought by an abortion provider on behalf of its patients. So if the Dobbs majority didn’t believe that there’s third-party standing in these types of abortion disputes, how could it reach the merits—much less overrule decades of precedent and install a completely different doctrinal rule?
One possibility is that the majority felt that it could rely on third-party standing precedents that it disagreed with. This solution must lean quite hard on the idea that following precedent is always or almost always permissible. If the Court is ever subject to an obligation to overrule case law, after all, that duty would probably arise when the majority itself concludes that the very precedents essential to its present use of jurisdiction are incorrect.
Moreover, the Court’s overall discussion of precedent seems inconsistent. How could the Court have permission to rely on admittedly erroneous third-party standing precedents even as it insisted that Roe and Casey had to be overruled?
Another possibility is that most members of the majority believed both that the third-party standing problem was prudential and that case-specific prudential factors supported overlooking the problem. Perhaps the state defendants didn’t do enough to challenge third-party standing, or the courts below didn’t adequately opine on the issue, or the Court could rely on its own discretionary decision to decline review of this question.
But, consistent with case law, the relevant justices have emphatically agreed that third-party standing rules exist primarily to protect the interests of the asserted rights holders. So it would be very strange if the choices of non-rights holders, namely third-party litigants and courts, could deprive rights holders of the ability to protect their own rights.
Underscoring this point, the Dobbs majority ultimately relied on the specific merits claims and concessions that the third-party litigants made. For instance, the Court repeatedly cited the abortion providers’ dubious claim that no half measures were available. Would the actual rights-holders have been as eager to raise the stakes in that way?
A final possibility is that the majority felt that it could hold the Dobbs dissenters to their jurisdictional views. After all, the dissenting justices have insisted that there is third-party standing in cases like this one. But is jurisdictional turnabout fair play?
It’s especially hard to see how Justice Thomas, whose vote was critical to the outcome, could exercise jurisdiction in Dobbs. In the past, Thomas has argued that this kind of jurisdictional defect is constitutional in nature and, therefore, both non-waivable and non-prudential. In a pre-Dobbs post, I suggested, based on his prior opinions, that Thomas might accept the jurisdictional conclusion of most justices. Again, however, it seems that most of the Court saw a jurisdictional problem in this kind of case.
Does all this mean that Dobbs is extra-jurisdictional and, therefore, not a valid precedent? Perhaps—or perhaps not, depending on one’s views of standing and precedent.
I’m more confident about two related points. First, Dobbs’s willingness to exercise jurisdiction makes sense only if there’s a lot of discretion at work here, either at the level of precedent or internal to the doctrine of third-party standing (or both). Second, the majority’s apparent use of discretion is both unexplained and objectionable, based on what those very justices have previously argued.
Re’s Judicata 