Why Third-Party Standing in Abortion Suits Deserves a Closer Look

INTRODUCTION Scholarship abounds on the confused and confusing nature of standing law in general, and third-party standing in particular. (1) While formulations of the general rule flow effortlessly from the pens of judges and Justices everywhere, (2) contrary results follow just as effortlessly only a few pages later. (3) Academics have attempted to reconcile or reconstruct the U.S. Supreme Court's disparate efforts into a coherent doctrinal framework, (4) but until the Court adopts such reconceptions or clarifies the doctrine, federal judges and litigators have to deal with the law as it "stands." (5) This Note aims to help those judges and lawyers apply standing doctrine correctly in a small but important area of litigation: suits brought in federal courts by abortion providers and abortion-performing doctors who assert the interests of their patients, often in addition to their own. (6) Courts need to reexamine their application of standing precedent in this area. Indeed, if lower courts actually believe what the Court has said, most abortion providers should not be able to assert the claims of their patients. Part I lays out the current state of standing law in both Article III and prudential aspects. Part II sketches the history and purpose of standing law--how this doctrine developed and what purposes it is supposed to serve. Part III traces the line of relevant jus tertii precedent before Kowalski v. Tesmer (7) to determine the state of the law, such as it was, before that case. Part IV compares Singleton v. Wulff, (8) which is generally (and incorrectly) considered the controlling decision on abortion provider-jus tertii standing, and Kowalski, a decision that is more consistent with modern standing doctrine and more applicable to abortion cases than Singleton. Finally, Part V addresses some practical implications for litigators if Kowalski is adopted as the standard in abortion standing jurisprudence. If successful, the reader, and perhaps some judges, should see that abortion providers, in the general case, fail to meet the prudential requirements for asserting the claims of their patients and should be left, like everyone else, with only their own rights to "complain" about. I. CURRENT STANDING DOCTRINE A. Article III Standing Requirements Standing is a preliminary jurisdictional requirement applied to every claim in federal court. With it, courts attempt to limit themselves to hearing only the "Cases" and "Controversies" given them by both Article III of the Constitution and Congress. (9) The Supreme Court has historically been concerned in this area with whether the plaintiff has made out an actual "case" or "controversy" between himself and the named defendant within the understanding of that article. (10) Article III judicial power exists only to redress or otherwise protect against injury to the complaining party, and can only be invoked when the plaintiff himself has suffered some actual or threatened injury resulting from the putatively illegal action. (11) While trying to administer this cryptic mandate, the Court has formulated three elements as the "irreducible constitutional minimum." (12) First, there must be an "injury in fact," which is "an invasion of a legally protected interest." (13) That invaded interest must be "(a) concrete and particularized, and (b) 'actual or imminent, not conjectural or hypothetical.'" (14) Second, "'there must be a causal connection between the injury and the conduct complained of--the injury has to be 'fairly ... trace [able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party.'" (15) Third, "it must be 'likely,' as opposed to 'speculative,' that the injury will be 'redressed by a favorable decision.'" (16) Stated succinctly, a federal court must ask whether a plaintiff "has suffered an injury in fact that is fairly traceable to the defendant's conduct and that is likely to be redressed by a decision in the plaintiff's favor. …