THE DOUBLE STANDARD FOR THIRD-PARTY STANDING: JUNE MEDICAL AND THE CONTINUATION OF DISPARATE STANDING DOCTRINE.

• Author: Winchel, Brandon L.

INTRODUCTION

No jurisdictional principle is more fundamental to the federal judiciary than the doctrine of standing. Before litigants may avail themselves of the tremendous power vested in the federal judiciary, plaintiffs must first establish that they are appropriately situated to assert a legal claim before a court. In analyzing whether a plaintiff possesses the requisite standing to maintain a legal challenge, the Supreme Court has stressed that a court's analysis must be blind to the underlying dispute: "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." (1) Unfortunately, an examination of the Supreme Court's application of standing doctrine suggests that the Court has peeked behind the veil to examine the underlying claims of litigants, applying standing doctrine in an inconsistent manner to legal challenges falling within a specific field of jurisprudence: abortion.

This Note contends that the Supreme Court has misapplied foundational principles of standing to suits brought by plaintiffs challenging state abortion regulations, departing from black letter standing requirements. In particular, this Note explains how the judiciary's continued practice of allowing abortion service providers and doctors to litigate the rights of nonlitigant, third-party women is at odds with the Supreme Court's prudential prohibition on third-party standing.

Part I lays out the current doctrinal framework of standing, noting the various constitutional and prudential requirements a plaintiff must meet to attain standing before a federal court. Part II examines the jus tertii exception to the general prohibition on third-party standing, emphasizing the Court's most recent and stringent pronouncement of the doctrine in Kowalski v. Tesmer. (2) Part III highlights the incompatibility of the jus tertii doctrine with the prevalent practice, reaffirmed in June Medical Services, L.L.C. v. Russo, (3) of granting standing to abortion service providers to litigate the interests of nonlitigant, third-party women. Part TV concludes by providing an overview of the effect that third-party standing has had on the jurisprudential landscape in abortion cases.

1. STANDING REQUIREMENTS

   Standing requirements are a matter of justiciability that center on the question of "whether [a] litigant is entitled to have the court decide the merits of the dispute or of particular issues." (4) The Supreme Court has characterized the "gist of the question of standing" as an inquiry meant to ensure that litigants before a court possess "such a personal stake in the outcome of the controversy as to assure that concrete adverseness... sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." (5) The doctrine of standing is rooted in both constitutional requirements and the exercise of prudential judicial restraint, (6) although the line between which requirements are compelled by Article III and which are self-imposed by the judiciary is not always clear. (7) The following overview traces the traditional outline of standing requirements, which previously comprised three constitutional and three prudential elements. (8) However, as will be illustrated in the discussion to follow, recent developments by the Court have altered this framework, resulting in a current formulation that entails four constitutional requirements and one prudential rule.

   1. Constitutional Requirements

      The irreducible constitutional requirements for standing derive from Article III, where the judicial power of the United States is authorized to "extend to all Cases... [and] to Controversies." (9) This "case or controversy" requirement ensures that the suit before a court is a justiciable matter properly within a court's constitutionally allocated power to entertain. (10) Despite the fact that a court's judgment may incidentally affect nonlitigants, the judicial power under Article III "exists only to redress or otherwise to protect against injury to the complaining party." (11) Were it otherwise, courts would be assuming a greater power than that which is constitutionally conferred to the judiciary, upsetting the delicate balance of power between coequal branches of government. (12) The constitutional dimensions of the standing requirement have been traditionally embodied in a threefold test. (13) The burden of proving the three elements of this constitutional test lies with the party invoking federal jurisdiction. (14)

      The first constitutional element requires the plaintiff to "have suffered an 'injury in fact'--an invasion of a legally protected interest." (15) This injury element is itself subject to two conditions--the injury must be "concrete and particularized," (16) and it must also be "actual or imminent, not 'conjectural' or 'hypothetical.'" (17) Regarding the first of these conditions, the Court has stated that "concrete" and "particularized" are conceptually distinct ideas. (18) A concrete injury is merely one that is real and not abstract; "it must actually exist." (19) A particularized injury is one that "affect[s] the plaintiff in a personal and individual way." (20) In other words, it is not enough that a cognizable interest is being injured; "the party seeking review [must] be himself among the injured." (21) The second condition of the "injury in fact" element--requiring the presence of an "actual or imminent harm"--introduces a probabilistic component that is designed to ensure that the alleged injury is not overly speculative, which would fail the Article III requirement that courts preside solely over actual cases or controversies. (22)

      The second constitutional factor requires the alleged injuries to share a causal relationship with the conduct complained of before the court. (23) This factor requires the injury 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 not before the court." (24) Like any causation requirement in law, the question of causation in standing raises intractable questions of degree and remoteness. (25) While "the indirectness of [an] injury does not necessarily deprive [a] person harmed of standing to vindicate his rights," such claims are "substantially more difficult" to maintain under Article III standing requirements, which require the plaintiff to show that the injury is a "consequence of the defendants' actions." (26)

      The third constitutional element centers on the redressability of the alleged injury. (27) To satisfy this prong of the test, it must be "likely" rather than merely "speculative" that a favorable ruling by the court will redress the injuiy. (28) While the plaintiff need not show with certainty that the injury would be remedied with a favorable ruling, the plaintiff must demonstrate "a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." (29) Additionally, the remedy cannot be unrelated to the injury suffered by the plaintiff--a mere "vindication of the rule of law"--but must rather work to redress a cognizable injury. (30) "Relief that does not remedy

      the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement." (31)

   2. Prudential Requirements

      In addition to the threshold constitutional requirements, the judiciary has crafted self-imposed limits "designed to deny standing as a matter of judicial prudence rather than constitutional command." (32) While prudential limits are "closely related to Art. III concerns," they are nevertheless "matters of judicial self-governance" (33) that can be waived by the Court or overridden by congressional acts that grant standing to sue. (34) The purpose of these prudential limitations is to ensure that courts are not "called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." (35) Traditionally, the Court has imposed three prudential limitations. (36) However, due to the Court's recent reformations in standing doctrine, only one of the three factors--the prohibition on third-party standing--remains as a prudential standing requirement. (37)

      The first prudential requirement prohibited the "adjudication of generalized grievances more appropriately addressed in the representative branches." (38) A generalized grievance is one where the alleged injury affects "every citizen's interest in proper application of the Constitution and laws," and the relief sought "no more directly and tangibly benefits [the plaintiff] than it does the public at large." (39) Previously conceived as a prudential limitation, (40) the Court recently recast the issue as a constitutionally mandated requirement, declaring that suits over generalized grievances "do not present constitutional 'cases' or 'controversies.'" (41)

      The second prudential limitation required that "a plaintiffs complaint fall within the zone of interests protected hy the law invoked." (42) In essence, the zone-of-interest test was meant to determine whether the interest sought to be protected by the plaintiff was an interest that was "protected or regulated by the statute or constitutional guarantee in question." (43) While the zone-of-interest test was traditionally characterized as a prudential limitation on standing, (44) the Court has departed from this characterization of the issue. In Lexmark International, Inc. v. Static Control Components, Inc., the Court recast the zone-of-interest inquiry as a question of statutory interpretation meant to determine "whether a legislatively conferred cause of action encompasses a particular plaintiff's claim."...