Hellerstedt and Standing: A Comparative View

—Stefanus Hendrianto, University of Notre Dame

The issue of standing appears to be relatively marginal in comparative constitutional law, because comparative constitutional scholars tend to see standing as a technical issue. For instance, in analyzing the recent U.S. Supreme Court decision, Whole Women’s Health v Hellerstedt,[1]  many legal analysts have missed an important aspect of the case; the question of standing, which became one of the central arguments in Justice Thomas’s dissent.  Hellerstedt raises an important discussion on standing from a comparative constitutional law perspective.  More importantly, it raises bigger issues of judicial role.

One of the central concerns of Justice Thomas in his dissent was that the majority did not question whether doctors and abortion clinics should be allowed to sue on behalf of Texas women seeking abortions. In Justice Thomas’s view, the Court allowed abortion clinics and doctors to invoke a constitutional right that did not belong to them.[2] Justice Thomas thus raised an issue of third party standing. In the U.S. constitutional realm, a principle generally prevents standing when the asserted harm is a generalized grievance shared by all or a large class of citizens.[3] This principle prevents an individual from challenging a statute by asserting someone else’s constitutional rights.  Justice Thomas argues that the Court has shown a particular willingness to undercut restrictions on third party standing when the right to abortion is at stake.[4]

From a comparative constitutional law perspective, third party standing is not uncommon. There are variety terms to describe this mechanism such as actio popularis, jus tertii, or public interest standing. In many jurisdictions, anyone regardless of his or her own injury may file a challenge to a law that affects the public at large. In Israel, the Supreme Court has adopted the view that when the claim alleges a major violation of the rule of law (in its broad sense), every person in Israel has legal standing to sue.[5] The Indian Supreme Court has been well-known for developing procedural rules for third party standing since the 1970s.[6] The Indonesian Constitutional Court in its infancy ruled that anyone could come to the Court as a taxpayer,[7] public defender [8] and has even held that every citizen has standing to raise constitutional issues.[9]

An apt example of the application of third party standing with regard to abortion litigation can be found in Colombia. In Colombia, any citizen may file challenges to laws, constitutional amendments, and decrees issued by the government in exercise of delegated legislation powers or during states of exception.[10] The 1991 Constitution created two types of third party standing: abstract and concrete review of constitutionality. The first one is the public action of unconstitutionality by virtue of which any citizen can demand the Court that a law or decree be declared unconstitutional, without him or her being a lawyer or having any particular interest in the issue.[11] The second one is the tutela action, in which any person may directly request any judge to protect his or her fundamental rights when they are being violated by a state agent or an individual.[12] The Court’s rules on standing, even in concrete review cases, are relatively flexible.

On March 14, 2005, Women’s Link Worldwide publicly launched an initiative to challenge the abortion laws of Colombia. Women’s Link Worldwide is an international human rights non-profit organization working to ensure that gender equality is a reality worldwide, and it has a main office in Bogota, Colombia. The initial petition was filed by Monica Roa, the director of the Gender Justice Program at Women’s Link Worldwide. Roa challenged the constitutionality of Colombia’s abortion law, which categorically prohibited abortion, on abstract review. Roa argued that the Constitution of Colombia required exceptions to the prohibition of abortion that protect a woman’s fundamental rights to life, health, privacy, and dignity.[13] On May 26, 2006, the Colombian Constitutional Court issued a decision and ruled that abortion must not be considered a crime under three circumstances: when the life or health (both physical and mental) of the woman is in danger; when pregnancy is a result of rape or incest; when grave fetal malformations make life outside the uterus nonviable.[14]

Despite the rich comparative materials available, Justice Breyer’s majority opinion in Hellerstedt, did not cite any foreign cases on third party standing. After the flap in Knight v. Florida, in which he cited the Zimbabwe Supreme Court decision, perhaps Justice Breyer has become more cautious in citing foreign cases.[15]  Justice Breyer may not have wanted to let Justice Thomas write an opinion ridiculing his approach to foreign law, as he did in Knight.[16] Despite the absence of foreign cases citation on third party standing, Hellerstedt is essentially employing a similar approach to third party standing as that found in many foreign jurisdictions.

Aharon Barak, a former Chief Justice of the Israel Supreme Court, argues that how a judge applies the rules of standing is determined by his approach to the judicial role.[17] A judge who regards his role as limited to deciding a dispute between persons with rights will tend to emphasize the need for strict standing. By contrast, a judge who regards his judicial role as bridging the gap between law and society will tend to expand the rules of standing, because liberal rules of standing enable courts to hear matters that ordinarily would not find their way before a court. In other words, standing determines the extent to which a judge is willing to interfere in fundamental constitutional issues. If judges see their mission as being the reconstruction of society, one way to achieve that objective would be through the expansion of standing rules.

Perhaps in Justice Breyer’s view, the social significance of an abortion case like Hellersted required an expansion in a Court’s standing rules. If that were the case, then Justice Thomas is correct with his assertion that the Court has been especially forgiving in third-party standing when the right to abortion is at stake.

In sum, standing is not simply about technical or local issues; it is a litmus test for determining how a judge sees his or her judicial role. Standing is thus more of a central concern for comparative constitutional law than is usually assumed.

Suggested citation: Stefanus Hendrianto, Hellerstedt and Standing: A Comparative View, Int’l J. Const. L. Blog, Aug. 23, 2016, at: http://www.iconnectblog.com/2016/08/hellerstadt-and-standing-a-comparative-view/

---

[1] Whole Woman’s Health v. Hellerstedt, 195 L. Ed. 2d 665, 2016 U.S. LEXIS 4063, 84 U.S.L.W. 4534, 26 Fla. L. Weekly Fed. S 360 (U.S. 2016).

[2] Id. at 71.

[3] See Frothingham v. Mellon, 262 U.S. 447 (1923); United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservist Committee to Stop the War, 418 U.S. 208 (1974); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006); Hein v. Freedom from Religion Foundation., Inc., 551 U.S. 587 (2007); Ex Parte Levitt, 302 U.S. 633 (1937); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); however, it should be noted in subsequent cases the Court slightly change its approach in addressing the generalized grievance doctrine, please see  Federal Election Commission v. Akins, 524 U.S. 11 (1998); Massachusetts v. EPA, 549 U.S. 497 (2007).

[4] Whole Woman’s Health v. Hellerstedt, supra note 1, at 74.

[5] Aharon Barak, “A Judge on Judging: The Role of A Supreme Court In A Democracy,” 116 Harv. L. Rev. 16 (November, 2002), 107 – 108.

[6] In 1976, the Indian Supreme Court began to open its door to relax standing rules in Maharaj Singh v. State of Utar Pradesh (1976) 1 SCR 1072.

[7] See the Indonesian Constitutional Court decision no. 003/PUU-I/2003 (the Government Securities Law case); the Constitutional Court decision no. 001-021-022/PUU-I/2003 (The Electricity Law case).

[8] See the Indonesian Constitutional Court decision no. 002/PUU-I/2003 (the Oil & Gas Law I case).

[9] See the Indonesian Constitutional Court decision no. 058-059-060-063/PUU-II/2004 (the Water Resources Law I case).

[10] See the 1991 Colombian Constitution, article 241

[11] See the 1991 Colombian Constitution, article 242 (1)

[12] See the 1991 Colombian Constitution, article 86

[13] Challenging Abortion Law in Colombia: An Interview with Monica Roa, WHRNet, July 2005

http://www.womenslinkworldwide.org/pdf_programs/prog_rr_col_articles_25.pdf.

[14] Sentencia C-355 de 2006 Corte Constitucional  [C-355/2006 case], available online at www.constitucional.gov.co/corte/.  For an English Translation, see C-355/206: Excerpts of the Constitutional Court’s Ruling that Liberalized Abortion in Colombia (Women’s Link Worldwide, 2007) (C-355 Translation); see also Monica Roa, “From Constitutional Court Success to Reality: Issues and Challenges in the Implementation of the New Abortion Law in Colombia.” IDS bulletin 39, no. 3 (2008): 83-87.

[15] Knight v. Florida 528 U.S. 990, 996 (Breyer J, dissenting)

[16]  Knight v. Florida 528 U.S. 990 (Thomas J, concurring)

[17] See Aharon Barak, The Judge In A Democracy (Princeton, New Jersey: Princeton University Press, 2006), 192.