Today, the Supreme Court unanimously held that anti-abortion doctors have no standing to challenge the Food and Drug Administration’s decision to relax regulation of mifepristone. Justice Thomas wrote separately to reiterate his objections to third-party status and to challenge the Court’s long-standing acceptance of association status (and the general injunction). His views are worth noting given the current pressure to rethink aspects of standing doctrine.
In his opinion, Justice Thomas reiterated his objection to third-party status.
Our standing third-party precedent allows a plaintiff to assert the rights of another if he or she has a “close relationship with the person who holds the right” and “the right holder’s ability to protect his or her own interests is hindered.” . . . . Applying these precedents, the court explained that a physician cannot establish third-party standing to sue for a violation of a patient’s rights without proving that he or she was harmed. . . But there is a simpler reason for rejecting this theory: our third-person position principle is wrong. As I explained before, a plaintiff cannot establish an Article III case or dispute by asserting the rights of others. . . .. Therefore, just as abortionists lack the standing to defend the rights of their clients, anti-abortion doctors are in no position to defend the rights of their patients.
He then goes on to argue that association status (as opposed to organizational status, where an organization asserts status in order to defend its interests as an organization) can be considered a third-party status and suffers from some of the same issues.
Association status raises constitutional issues by relaxing the injury and remediability requirements of Article III status. It also disturbs other legal principles.
First, association status conflicts with Article 3 because an association allows the association to assert damages against its members rather than itself. . . . Article III does not allow a plaintiff to seek to defend another person’s injury. . . . It is difficult to see why this logic should not apply to associations in the same way it applies to any other plaintiff. Therefore, I have serious doubts about the association’s standing to indirectly assert the harm suffered by its members. . . .
Second, our associational status doctrine appears inconsistent with the requirement that a plaintiff allege harm that can be corrected by a court. . . . The party requiring redress—the injured member—is not in court. Without these members being parties to the proceedings, it is questionable “whether the relief … to these non-parties would be excessive”.[s] … Since no party should be allowed to obtain an injunction in favor of a non-party, I have a hard time seeing why an association should be allowed to do so for its members. Association status therefore seems to distort our traditional understanding of organizations. .
As Justice Thomas noted, one way for courts to address concerns about providing relief beyond what individual plaintiffs are entitled to is through general injunctions, but this does not really address potential Article III issues.
Our precedents provide a solution to this obvious problem of redress through the invention of the so-called “general injunction.” A general injunction generally “prohibits the government from enforcing policy against anyone.” . . . By providing relief to parties other than parties to the case, such a remedy is “legally and historically questionable.” . . . The emergence of corporate status in the 1960s [this] The “remedial phenomenon” is of an equally questionable nature… Since no party should be allowed to obtain an injunction in favor of a non-party, I find it difficult to see why an association should be allowed to do so for its members. Distorting our traditional understanding of judicial power.
Thomas noted that reliance on association status and general relief “subverts the class action mechanism” by providing workarounds to class action rules and requirements and “creates the possibility of asymmetric exclusions.”
Association status may be reasonable and reconciled with the restrictions of Article III, but as Justice Thomas noted, such justification and reconciliation are not to be found in the Court’s jurisprudence: “While courts continue to rely on association status, But the court has yet to explain how this principle complies with Article 3.
Justice Thomas was not the only one to question the association’s status. Andrew Hessick and Michael Morley raise objections in a forthcoming report University of Chicago Law Review The title of the article is apt: “Against associational status”.
Judge Thomas concluded:
No political party today challenges our principle of corporate status. This is understandable; courts have consistently applied the principle and only discuss the details of its operation. See, for example, Students for Fair Admissions, Inc. v. President and Fellows of Harvard University, 600 US 181, 199–201 (2023). In this lawsuit, rejection of our associational standing doctrine does not require a conclusion that plaintiff lacks standing. However, where appropriate, the court should address whether the association’s status complies with Article 3’s requirement that the court respect the boundaries of its judicial powers.
