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

Cite as: 591 U. S. ____ (2020) 15

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-

Cite as: 591 U. S. ____ (2020) 19

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;

Cite as: 591 U. S. ____ (2020) 21

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,

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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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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

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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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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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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-

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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.,

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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,

Cite as: 591 U. S. ____ (2020) 15

ROBERTS , C. J., ,concurring

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”

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