New State Hurdles to Standing Threaten Abortion Ban Challenges

One of the most important state cases on reproductive rights may hinge not on abortion protections offered by the state constitution, but instead on whether the medical providers and abortion rights groups have the right to bring the lawsuit.

Last month, the Georgia Supreme Court remanded a challenge to Georgia’s six-week abortion ban to the trial court, instructing it to evaluate the case, Georgia v. SisterSong, in light of a January state high court decision that eliminated third-party standing in Georgia courts. This latest development in SisterSong exemplifies how state supreme courts are imposing new limits on standing, with unpredictable effects for conservative and progressive movements alike.

In July 2022 — shortly after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization paved the way for the abortion ban the Georgia legislature passed in 2019 to go into effect — SisterSong, as well as other reproductive rights groups and medical providers, sued, arguing the Georgia ban violated state constitutional provisions on privacy, equality, and equal protection. A separate claim that the ban was void because it was enacted when abortion was still federally protected pre-Dobbs was litigated first and rejected by the Georgia Supreme Court in October 2023. On remand to consider the rights claims, a district court in September 2024 declared the ban unconstitutional and enjoined its enforcement. The following month, the Georgia Supreme Court stayed that ruling, allowing the ban to go back into effect while the litigation continued.

The high court was scheduled to hear oral arguments in SisterSong mid-March, but its January ruling in a separate case, Wasserman v. Franklin County, resulted in the February return of the abortion ban litigation to the trial court.

The Wasserman decision revolutionized the rules that apply when anyone brings a claim on another’s behalf, known as third-party standing. Wasserman involved a strange set of facts: Sherran Wasserman had struck a deal with Anthony Pham to sell him property, contingent on Pham being able to place chicken houses on the property. Pham petitioned for permission to do so, but the Franklin County Board of Commissioners voted against him. Wasserman sued the board on Pham’s behalf. The Georgia Supreme Court sided against Wasserman, holding that third-party standing was no longer valid in Georgia state courts.

In its opinion, the court stressed it had been a mistake to “uncritically import” rules from federal courts, including on issues of third-party standing. Considering Georgia’s history and tradition, the justices identified a practice of allowing parties to sue only to vindicate their own rights — a conclusion in line with most case law in the state. The factors of stare decisis, which requires some deference to a court’s past precedents, did not require a different outcome, the court said. 

When the high court remanded SisterSong, it asked the trial court to address whether any of the plaintiffs were seeking to defend their own rights rather than relying on third-party standing to protect the rights of others. It is quite possible that the SisterSong litigation will be dismissed on standing grounds and any challenge to the state’s law will need to start over.

Standing Challenges in Other States

Standing hurdles have already blocked challenges to Kentucky’s abortion ban. In 2023, the Kentucky Supreme Court held in Cameron v. EMW Surgical Center that abortion providers lacked third-party standing to bring claims on behalf of their patients. The court spotlighted dicta from Dobbs suggesting that Roe v. Wade (which Dobbs reversed) had distorted third-party standing doctrine. The providers in Cameron, the court reasoned, had failed to show either a close relationship with their patients or an obstacle that prevented the patients from seeking to vindicate their own rights. A later suit filed by Jewish women challenging the state’s ban on religious liberty grounds was rejected by a trial judge for lack of standing because none of the plaintiffs were currently pregnant or undergoing IVF. The judge ruled any potential harm to them was too speculative.

Not every state has narrowed its approach to standing — even some that have upheld stringent abortion bans. The Idaho Supreme Court, for example, upheld the state’s ban in 2023, but simultaneously found that a group of physicians had standing because they could face future criminal consequences under the state’s ban.

Ongoing challenges to other states’ abortion bans have continued without special concern about standing. A group of providers challenged the constitutionality of Utah’s abortion ban, arguing it violated state constitutional rights to equality, bodily integrity, and the right to care for one’s family. In 2024, the Utah Supreme Court held that providers had third-party standing to challenge the constitutionality of the state’s ban on behalf of their patients because of the practical obstacles to bringing suits faced by patients themselves — detailed in affidavits from several patients — and because disallowing providers from suing threatened to dilute any rights the constitution protected. The court kept in place an injunction against enforcement of Utah’s law as the constitutional challenge continues.

The North Dakota Supreme Court likewise has said abortion providers’ standing is not an issue in Access Independent Health Services v. Wrigley. The state supreme court had previously enjoined a state ban before the state legislature passed a virtually identical measure. The plaintiffs challenging the current ban have argued, among other things, that the law is impermissibly vague. Denying the state’s request to pause a trial court ruling striking the new law, the North Dakota high court found that the plaintiffs had adequately established standing based on their own conduct by arguing that the law impedes their ability to provide patient care. It didn’t matter to the court that the law had never been enforced; the threat of injury was real enough that it rose beyond speculation.

Unintended Consequences

Rulings narrowing standing won’t always cut the same way when it comes to reproductive rights, a lesson arising from litigation in Mississippi. That state already bans abortion, but a group of doctors affiliated with the American Association of Pro-Life Obstetricians and Gynecologists sued to overturn a 1998 Mississippi Supreme Court ruling implying the state constitution protects a right to abortion. A trial judge in Hinds County, home to state capital Jackson, ruled the physicians didn’t have standing because they couldn’t trace an injury to the 1998 decision — Mississippi was, after all, already enforcing its ban.

An unrelated ruling on third-party standing from the Mississippi Supreme Court may also make it harder for both conservative and progressive organizations to bring abortion cases in the future. That 2024 case involved a group of parents challenging the constitutionality of a state-created program designed to provide grants to independent and private schools. The parents relied on the idea of associational standing, suggesting that the members of the group would have standing to sue because their children attended public schools and might be impacted by the diversion of resources. The Mississippi Supreme Court offered a narrow interpretation of associational standing requiring a “present” interest. The parents, the court suggested, could only speculate about “a future threatened harm” in the form of “a competitive disadvantage for Mississippi public schools.”

It’s too soon to know what role standing will play in reproductive rights cases unfolding in other state courts across the country. But the ruling in SisterSong is a reminder of how much standing rules will shape the next chapter of struggles over state abortion bans — and how procedural hurdles may prove as important as the interpretation of state constitutions themselves.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. 

Suggested Citation: Mary Ziegler, In Reproductive Rights Litigation, New State Hurdles to Standing, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 05, 2025), https://statecourtreport.org/our-work/analysis-opinion/reproductive-rights-litigation-new-state-hurdles-standing