Who Can Challenge State Abortion Bans? It’s Not So Clear Cut. 

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization took away more than the right to an abortion. It also limited who can sue over abortion restrictions. Some states have followed suit, declining to find abortion providers have standing to challenge bans on the procedure — and magnifying the ruling’s devastating impact on pregnant people in those states.

Standing is a litigant’s right to have a court rule upon the merits of the claims for which they seek judicial relief. For a party to establish standing in federal court, they must show that they have personally suffered (or will imminently suffer) a “concrete and particularized injury,” caused by the unlawful actions of the opposing party, that can be fixed by a favorable judicial decision. The standing doctrine ensures that courts do not exercise the judicial power — which can significantly affect people’s lives, liberty, and property — to resolve generalized grievances brought primarily for the benefit of “concerned bystanders” who seek to vindicate abstract ideological interests. A litigant’s failure to establish standing to sue generally results in dismissal of his claims.

In June, the U.S. Supreme Court held in Food and Drug Administration v. Alliance for Hippocratic Medicine that the plaintiffs — an association of anti-abortion physicians and its individual members — did not have standing to sue. The Court explained that they had not suffered the requisite injury required to challenge the FDA’s decisions on dosing and availability of the abortion pill mifepristone, which blocks progesterone that is needed for a pregnancy to continue. By disposing of the case on standing grounds, the Court kept mifepristone available for safe medication abortions without addressing FDA’s authority to approve or regulate the drug.

While this ruling seemingly follows the general principles of standing, the reality is not so straightforward.

In 2020, the Court allowed third-party standing — a doctrine that lets a party file a lawsuit asserting the rights of another person or entity — for abortion providers in June Medical Services v. Russo. The Court concluded that providers could assert claims on behalf of their patients because the challenged laws regulated the providers’ conduct, including by threat of sanctions. The providers had every incentive to resist efforts at restricting their operations, the Court explained, and were far better positioned than their patients to challenge the restrictions.

Third-party standing for doctors in abortion cases goes back much further than June Medical. In 1976’s Singleton v. Wulff, Justice Harry Blackmun wrote that “aside from the woman herself, the physician is uniquely qualified, by virtue of his confidential, professional relationship with her, to litigate the constitutionality of the state’s interference with, or discrimination against, the abortion decision.” Singleton recognized that women may be fearful to assert their abortion rights out of concern for their privacy. In Singleton, the Court announced that third-party standing was allowed when “the interests of the litigant and the third party are aligned” and “there is an obstacle to the third party asserting her own rights.”

But in 2022’s Dobbs, which overturned decades of precedent to declare there is no federal right to abortion, the Court called its previous practice of granting abortion providers third-party standing on behalf of their patients to challenge state abortion statutes a misapplication of its third-party standing doctrine. 

Dobbs left each state to decide for itself whether and under what circumstances abortions are available within their borders, creating an upswell of litigation over abortion restrictions in state courts. But Dobbs also gave states reason to limit providers’ ability to bring that litigation.

Many states have long followed federal standing standards. Unsurprisingly, then, some states have signaled receptivity to arguments against providers’ third-party standing post-Dobbs. In Florida, for example, a state appellate court called into question providers’ ability to sue on behalf of patients in a decision refusing to block a law that banned abortion after 15 weeks. The Florida Supreme Court has since upheld the law, overruling decades-old precedent that the state constitution’s privacy protections applied to abortion. The decision triggered a 6-week ban, which is now in effect. The high court’s majority opinion did not address the standing question.

In Kentucky, the state supreme court last year held that abortion providers did not carry their burden to demonstrate that they had third-party standing. Abortion clinics — the only two left in Kentucky at the time — challenged the state’s six-week ban and a separate trigger law, which banned nearly all abortions with no exception for rape or incest.

The providers argued that the Kentucky Constitution’s rights to privacy, bodily autonomy, and self-determination protect the right to abortion. The justices didn’t resolve larger constitutional questions about whether access to abortion should be legal. Rather, they disposed of the case on standing grounds. (A second challenge to Kentucky’s abortion ban also nixed on standing earlier this summer, when a lower court dismissed claims by three Jewish women seeking to challenge Kentucky’s abortion ban on religious grounds without analyzing the merits of their claims.)

When the ability of providers and clinics to bring challenges to courts is curtailed, it is more difficult for these challenges to proceed successfully. Justice is necessary limited if only those who are seeking abortions are permitted to sue — while balancing medical appointments, the physical limitations that frequently accompany pregnancy, and perhaps the logistics of seeking an abortion out of state, which generally must be performed in the first few months of pregnancy. They also must wait for a ruling that is likely to come too late to remedy their situation, even if it is favorable. And, as the Court in Singleton noted, pregnant people may be fearful of bringing these cases in the first place, out of concern for their privacy.

It’s no surprise, then, that in Kentucky, no pregnant person seeking an abortion has yet to file a lawsuit and fully litigate the constitutionality of the law. (Late last year, a pregnant woman filed a lawsuit challenging Kentucky’s strict abortion laws as “Jane Doe,” but dismissed it just nine days later.)

Abortion restrictions cause, pain, trauma, and irreparable harm to patients who are forced to bear children they don’t want or to travel out of state for the medical care they need. What’s more, the laws disproportionately harm people of color, as social and economic inequities increase the challenges to accessing abortions and exacerbate existing disparities in maternal and infant health. Preventing abortion providers from having third-party standing for their patients amplifies the damage to the lives and liberty of countless people who cannot obtain the abortion care they need.

Christine L. Stanley is the Chief Legal Counsel of Planned Parenthood of Great Northwest, Hawaii, Alaska, Indiana and Kentucky.