Rethinking Standing to Litigate a Chilling Effect in Abortion Cases and Beyond

My latest Verdict column discusses last week's ruling by a state appeals court upholding a preliminary injunction against the application of Indiana's restrictive abortion law to plaintiffs who claim that under certain circumstances it would violate their religious freedom. The decision rests on the state's Religious Freedom Restoration Act (RFRA), which, as I explain in the column, is materially identical to the federal RFRA. The column focuses chiefly on the court's substantive analysis, but much of the opinion addresses procedural issues. In today's essay, I'll say a bit more about one of those issues: legal standing based on a law's chilling effect.

The state objected to the plaintiffs' standing by pointing out that none of them was pregnant and thus none of them was currently seeking an abortion. This objection could be characterized as going to standing--which typically requires a reasonable fear of an imminent injury as the basis for standing for an injunction--or as going to ripeness--which amounts to more or less the same thing.

Or at least that's how I understand the requirement of imminence/ripeness in federal court, where the issue is framed as a constitutional limit on the federal courts to hear only what Article III calls "cases" and "controversies." If the plaintiff alleges a potential future injury that is not yet imminent, then for a court to resolve the issue presented would be a forbidden advisory opinion.

Article III is a limit on the jurisdiction of federal courts, not state courts, but many states have similar limitations as a matter of state law. The Indiana appeals court noted similarities between federal and Indiana ripeness doctrine but made clear that despite sprinkling in a few SCOTUS precedents, it was analyzing the issue as a matter of state law. It rejected the they're-not-pregnant objection in part because of the effect that the restrictive abortion law was having on the plaintiffs' current behavior:

Due to their inability to obtain an abortion as their religious beliefs dictate, Anonymous Plaintiffs 1, 4, and 5 have alleged they are not attempting to become pregnant when they otherwise would. Anonymous Plaintiffs 1 and 2 report that they have severely decreased their sexual intimacy with their husbands due to concerns about becoming pregnant while the Abortion Law’s restrictions are in effect. Some members of [a plaintiff association that sued on behalf of its members] also have altered their sexual and reproductive practices in response to the Abortion Law. We agree with Plaintiffs and the trial court that these changes show a substantial burdening of the religious exercise of Plaintiffs and that these allegations of existing harm from the Abortion Law render Plaintiffs’ lack of pregnancy irrelevant to ripeness.

Put differently, the plaintiffs alleged a ripe/imminent injury because they are already taking measures to their detriment as a result of the law. Their injury is not just imminent but ongoing. Would that work in federal court? I think the answer is probably not, but perhaps it should.

Why do I say that kind of allegation of current injury would not satisfy Article III for a similar case in federal court? Because Justice Gorsuch, writing for the Court in the infamous S. B. 8 case from Texas in December 2021, said more or less as much. The Texas "heartbeat" law bans abortions after six weeks but also purports to cut all state officials out of enforcing the law by substituting civil suits with enormous liability attached. By taking state law enforcement officials out of the equation, Texas sought to render a pre-enforcement lawsuit for injunctive relief impossible, because there would be no proper defendant to sue. Justice Sotomayor, in dissent on this point, argued that the Court should allow litigation to prevent Texas's obvious attempt to defy the supremacy of federal law and noted that the law was already causing injury because medical personnel and others in Texas were understandably afraid to exercise what were, at that point six months prior to the Dobbs ruling, still their constitutional rights.

Phooey, said Justice Gorsuch. Okay, what he actually said (minus citations) was this:

Justice Sotomayor contends that S. B. 8 “chills” the exercise of federal constitutional rights. If nothing else, she says, this fact warrants allowing further relief in this case. [H]owever, it turns out that the Court has already and often confronted—and rejected—this very line of thinking. As our cases explain, the “chilling effect” associated with a potentially unconstitutional law being “ ‘on the books’ ” is insufficient to “justify federal intervention” in a pre-enforcement suit.

Steps that a person subject to a law might reasonably take to avoid being ensnared by the law--such as declining to become pregnant despite wishing to have more children--presumably also don't make the cut because they amount to what Justice Alito, writing for the Court in Clapper v. Amnesty Int'l, USA, derided as "self-inflicted injuries."

It's sensible to deny standing to someone who, without any reasonable fear that a law would be applied to them, takes self-harming measures to avoid the law's consequences. Allowing such a case to go forward truly would call for an advisory opinion or privilege the paranoid. But where someone has a reasonable fear and reasonably takes measures in response to a law's coverage, that does seem like a concrete injury.

To give an example with a different ideological valence, consider the California law, modeled expressly on S. B. 8's enforcement provisions, that cuts out state enforcement but authorizes severe civil suit consequences for violating certain restrictions on the manufacture and transfer of certain firearms under certain circumstances. Suppose that someone subject to the law, in reasonable anticipation of its application to them, forgoes otherwise lucrative opportunities to sell firearms or, if we imagine a slightly different version of the California law, forgoes carrying a firearm for self-defense. Perhaps even in these cases--as with S. B. 8--there is no one to sue, but even if so, that doesn't mean that the law causes no injury, which is what it appears Justice Gorsuch in the S. B. 8 case and Justice Alito in Clapper were saying. (No one to sue? Eight Justices in the S. B. 8 case said that certain licensing officials had enforcement responsibilities and thus could be sued, but on remand, the Fifth Circuit asked the Texas Supreme Court, and--unsurprisingly--it said the licensing officials had no enforcement responsibilities and thus could not be sued after all.)

Disallowing lawsuits to vindicate the rights of people who are reasonably chilled from exercising their rights and/or reasonably taking actions to their detriment for fear of  resulting liability is especially odd, given that in some free speech cases, the chilling effect is said to authorize lawsuits by third parties. As SCOTUS explained in Sec'y of State of Md. v. Munson: "Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society -- to prevent the statute from chilling the First Amendment rights of other parties not before the court."

The scope of overbreadth doctrine has long been a subject of contestation. Prof Richard Fallon and I (separately) have argued that the Court's cases allow more facial and overbreadth challenges than is commonly asserted and that this makes sense. But even setting aside the debate over the scope of overbreadth doctrine, there is little doubt that it exists in at least some class of cases or that part of its justification is to combat a chilling effect.

My simple point for today is that if the chilling effect suffices to permit third-party standing, surely it ought to suffice to allow first-party standing.