June 6, 2019

Schaerr|Jaffe Attorneys File Conditional Cross-Petition in Major Abortion Case

In May, partner Stephen Schwartz and other Schaerr | Jaffe Attorneys, including partners Gene Schaerr and Erik Jaffe, assisted the Louisiana Attorney General in filing a conditional cross-petition for certiorari in a major U.S. Supreme Court abortion case. The original petition in the case concerns whether a Louisiana health and safety law unduly burdens the decision to obtain an abortion.  But the petition was filed by abortion providers who have a conflict of interest with the women they purport to serve: Abortion providers have an interest in less regulation and larger profits, while their patients have an interest in health and safety. Worse, there is evidence that the abortion providers have a history of providing sub-standard medical care. The question whether abortion providers can be presumed to have “third-party standing” to represent their patients raises questions fundamental to litigation in federal courts. 

As the petition explains, “Under the ordinary rules for third-party standing, representative plaintiffs would have to provide evidence establishing that their interests are aligned with those they purport to represent and that there is some barrier preventing the actual rights-holder from asserting their own interests. There should be no assumed ‘abortion’ exception to those ordinary jurisdictional rules, and if this Court accepts Plaintiffs’ Petition, it should also grant the Conditional Cross-Petition to address that underlying issue.”

The Cross-Petition was highlighted by Ed Whelan on the legal blog Bench Memos. The blog post observed that the Cross-Petition meant that those who filed the original petition “might come to regret what they are asking for.” In other words, the Cross-Petition allows Schaerr | Jaffe to more fully protect the interests of its clients, protecting Louisiana’s health and safety laws from attack.