The Fifth Circuit began by addressing associational standing. At a high level of generality, the Fifth Circuit’s reasoning goes like this:
- Lots of women use mifepristone (p. 12).
- Statistically speaking, some fraction of those women will go to the emergency room (p. 13).
- Statistically speaking, some fraction of the women who go to the emergency room will see the plaintiff-doctors (p. 13).
- The plaintiff-doctors are harmed by seeing these women, because they have to devote “significant time and resources to caring” for them (p. 14), face “enormous stress and pressure” (p. 14), and face an “irreconcilable choice between performing their jobs and abiding by their consciences” (p. 16).
- “Given how many women those doctors have seen in emergency departments in the past, these doctors quite reasonably know with statistical certainty … that women will continue needing plaintiffs’ ‘emergency care.’” (p. 17). The panel characterizes this as a “crisis” that is “concededly ongoing.” (p. 18).
- “Even if one of the named doctors never sees another patient, it’s inevitable that one of the thousands of doctors in plaintiff associations will.” (p. 18).
Let’s start by explaining why this analysis is conceptually wrong, before turning to a more granular discussion of how the Fifth Circuit grossly distorts the record.
Conceptually, the Fifth Circuit’s analysis is irreconcilable with Summers v. Earth Island Institute , 555 U.S. 488 (2009), which, like the district court, the Fifth Circuit does not cite. I have adverted to this case in prior posts, but in view of the Fifth Circuit’s express reliance on the supposed “statistical certainty” of the plaintiff-doctors encountering patients suffering complications from mifepristone, a more detailed analysis is warranted.
The dissent, written by Justice Breyer and joined by Justices Stevens, Souter, and Ginsburg, would have held that this statistical certainty is enough. Justice Breyer asked: “How then can the Court deny that the plaintiffs have shown a ‘realistic’ threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, esthetic, and environmental interests of the plaintiffs’ members?” Of course, the plaintiffs could not pinpoint which member would be harmed or where the future salvage-timber sale would be, but Justice Breyer observed: “a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates.”
But the majority opinion—by Justice Scalia, and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—concluded that the plaintiff organizations lacked associational standing.
In their view, statistical certainty was not enough. The Court began by holding that the declaration of a specific individual, Jim Bensman, did not establish that Bensman suffered a concrete injury that could be remedied by the relief he sought. Although Bensman alleged past injury, this allegation was insufficient for standing because, among other things, “it relates to past injury rather than imminent future injury that is sought to be enjoined.” And although Bensman also alleged future injury, he lacked standing because he failed to “allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman’s to enjoy the national forests.”
Next, the Court rejected the dissent’s “statistical certainty” theory with reasoning that could be written for this case. Here’s what it said:
The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than “700,000 members nationwide, including thousands of members in California'" who use and enjoy the Sequoia National Forest,'” post, at 1154 (opinion of BREYER, J.), it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.
The Court then walked through several prior cases and explained: “This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity.”
Well, there you go. I don’t think that even the Fifth Circuit could say with a straight face that all members of the plaintiff organizations face a concrete risk of harm based on hypothetical patients entering emergency rooms, especially given that only a small number of members submitted declarations regarding alleged harms in the past. The Fifth Circuit instead reasoned that some unspecified percentage of doctors are statistically likely to encounter patients in the emergency room who suffered complications of mifepristone, which is exactly the reasoning rejected in Summers . The rule of law requires that legal principles be applied neutrally. Article III does not apply differently depending on whether the plaintiffs support progressive causes or conservative causes.
Moreover, conceptually, the Fifth Circuit’s approach would dramatically expand the law of standing. Any federal rule that could in some way be said to reduce “safety” could be challenged by a sufficiently motivated plaintiff organization. Suppose the National Highway Traffic Safety Administration relaxes some airbag requirement. Under the Fifth Circuit’s theory, the American Association of Pro-Car Safety Doctors could sue, on the theory that an unspecified additional number of people will be injured in car accidents and go to the E.R., and some unspecified number of doctor-members will have to treat their injuries, stressing them out.
Even non-safety rules could be challenged on similar theories. Suppose an agency passes a rule that will increase the number of immigrants. Statistically speaking, an E.R. doctor will see an immigrant benefiting from the new rule at some point in the future which might divert resources from other patients, so apparently doctor organizations would have standing to challenge the rule. Now, suppose an agency passes a rule that will decrease the number of immigrants. Statistically speaking, some doctor in private practice somewhere will lose out on an employee at some future point that he hypothetically would have hired, so doctors can apparently challenge that too under the Fifth Circuit’s logic. I doubt the Fifth Circuit would actually reach these conclusions, they are too crazy, but this analysis merely underscores that the Fifth Circuit is applying unique rules to this case because it’s about abortion.
