*1 Dеpartment services, of the Oklahoma property or sioner concerning goods, at the time of Mental Health and Substance known which information was Services; Halligan, Dr. or sale if such failure Abuse James advertisement of an capacity was intended such information in his official as President of to disclose to enter into a University; the consumer to induce David L. Oklahoma State 6-l-105(u). transaction,” §. Because id. Boren, capacity in his official as explanations prior University State Farm’s UM/ President of the of Okla in- coverage reflected a UIM homa, Defendants-Appellants, reasonable law, existing case it did terpretation representations which not either make to be false or should have known knew capacity Fogarty, Mike official his as Further- disregard. aсt reckless Chief Executive Officer of the Okla
more, Farm cannot be said to have State Authority, homa Health Care Defen fact that was not known failed to disclose a dant. therefore failed at the time. Anderson has for violations the CCPA
to state claim true, because, alleged accepting all facts Seventy-Six Oklahoma State deceptive in a engage Farm did not State Legislators, Amicus practice. trade Curiae.
V, CONCLUSION No. 02-5094. above, the dis- reasons set out For the Appeals, United States Court of Anderson’s com-
trict court’s dismissal Tenth Circuit. AF- state a claim is plaint for failure to FIRMED.5 July SYSTEMS, doing HEALTH busi
NOVA Services, Reproductive on be
ness as itself, patients, and its
half of its staff
Plaintiff-Appellee, GANDY, capacity official
Dean in his Director of the
as Executive Universi Terry Cline,
ty Authority; Hospital L. capacity as Commis his official doctrine the filed rate claims are barred disposition this case makes it unnec- 5. Our reme- to exhaust administrative arguments and a failurе essary address Anderson’s n or State dies. Farm's assertion that Anderson’s *3 EBEL, Before BRISCOE TYMKOVICH, Judges. Circuit ORDER Appellee’s We GRANT Petition Pan- el Rehearing for the purpose limited withdrawing previous panel opinion and concurring/dissenting opinion and sub- stituting panel opinion revised con- curring/dissenting opinion. In all other regards, the Petition for Rehearing Panel is DENIED.
A judge of the court called for a vote on the petition for rehearing en banc. A vote taken, was majority and the active judges of the court failed to for vote en 35(f). banc Fed. rehearing.1 App. R. P. Therefore, suggestion for en re- banc hearing is DENIED.
ABEL, Judge. Circuit An Oklahoma statute makes abortion providers any for subsequent liable medi- cal costs may that be required because of an abortion performed on a minor without parental cоnsent or knowledge. Seeking to challenge the constitutionality of that statute, Nova (“Nova”), Health Services an provider, abortion brought this action for injunctive and declaratory against relief various officials who public oversee certain health care facilities in Oklahoma. These public officials attempted have not to re- cover medical costs from Nova under the challenged statute, although it possi- ble they may that seek to do so sometime in the future. Collett, Teresa Houston, TX, Stanton for The district court held that
Amicus Curiae in there was a support of Defendants- (Elizabeth justiciable case or Appellants Sharroek, controversy R. between the Assis- Attorney General, parties tant and Oklahoma entered summary City, judgment OK, for Defendants-Appellаnts against on the the defendants. The court issued briefs). declaratory injunctive against relief defendants, declaring that Anderson, the Okla-
Bebe J. Reproduc- Center for homa (M.M. statute Rights, York, imposed an NY, tive New unconstitutional Hard- wick, Tulsa, OK, briefs) burden on a ability her on the woman’s to obtain for Plaintiff-Appellee. abortion and excessively vague. was voting 1. Those in favor of en banc reconsider- from this case did sugges- not vote on the Briscoe, Judges Seymour, were ation Murphy tion rehearing. for en banc Judge and Lucero. Henry recused himself require because might standing Nova lacked hold nowWe not it has because bring this lawsuit to abortion. have suffered may that the
shown Although this § 1-740. tit. Okla. Stat. law was challenged Oklahoma due performed to abortions only applies law defendants particular by these caused “consent or without minors by judgment be redressed it would rec- Indeed, in the nothing by deciding responded knowledge,” them. distinguishes ord future, minors that, it would require in the day have might one party who any other parental consent in-person produce dam- compensatory to seek the occasion an abortion there. Since to obtain order as a civil statute under the ages effect, alleges came § 1-740 into a tort not attack may party A plaintiff. women who away young it has “turnfed] naming simply court in federal statute not reasons for compelling have valid and someday might anyone as a defendant decision.” parents their involving their the chal- of action a cause have that be- Nova asserts specifically, More law. lenged January 2002 at least July 2001 and tween controversy case or genuine Absent not minors declared it is constitution- parties, between give con- the clinic to bring parent courts the federal permissible ally Accordingly, *5 presented. the issues decide sent.3 court the order of district the VACATE
we § came than a week after Less and appeal,2 in this defendants the effect, the lawsuit filed instant into jurisdiction. for lack of DISMISS declaratory seeking court district federal BACKGROUND defendants relief. The four injunctive and 2001, abor- Nova offered to June Prior public officials are Oklahoma appeal in this that requiring minors without tions overseeing certain include functions whose Nova, According to parent. notify first alleged in institutions. Nova medical state minors a to two one approximately it “saw institutions each of these complaint that par- consulted had not who month treatment of medical some form provide aWhen their abortion.” regarding ent the services, detail record does not but the she patient stated minor prospective scope of their activities. the abor- parent to a about not talked had to do so tion, encourage her would Director of the Gandy is Executive Dean ultimately that decision leave but Authority, which University Hospitals the cases,” “many patient. and Hospital Memorial Oklahoma oversees awith choose to consult eventually would See Hospital of Oklahoma. Children’s the abortion. parent about 63, Terry § L. Cline 3204. tit. Stat. Okla. a law 2001, enacted Oklahoma In June De- of the Oklahoma the Commissioner that: providing Health and Substance partment Mental abortion рerforms who an Any person insti- Services, manages state which Abuse or consent parental a minor without illness treat mental designed to tutions for the cost be liable knowledge shall See dependency. and alcohol drug such and subsequent medical treatment at Nova with judgment obtained abortion opinion not disturb the 2. Our does below Forgarty, a defendant against Mike consent. against him. judgment appeal the did not many, if it is unclear how admits 3. Nova ultimately any, returned of these women 43A, (b)
Okla. Stat. tit. 2-102. David L. imminent, ticularized and actual or not Boren is the President of the University of conjectural hypothetical. Second, Id.
Oklahoma, which
University
includes the
there must
abe
causal connection between
of Oklahoma Health Science Center in Tul-
injury and
action of
University
sa and the
of Oklahoma Mеdi-
defendant—-the
“fairly
must be
cal Center in
City.
Oklahoma
See Okla.
defendant,
traceable” to the
and not the
70,
3103,
§§
Stat. tit.
3301. James Halli-
result of the independent action of some
gan is the President of Oklahoma State
party.
third
Id. Finally, it must
likely,
be
University, which includes the Oklahoma
merely
speculative, that a favorable
State University College
Osteopathic
judgment
plaintiffs
will redress the
injury.
Medicine and Surgery in Tulsa. See Okla.
Id.
vague. The argued, defendants among standing. Lujan, 504 U.S. at things, other that Nova failed to demon- S.Ct. 2130. At summary judgment strate Article III standing. The district stage, must set forth by affida court denied the defendants’ motions to vit or that, specific evidence facts if dismiss and motions for summary judg- true, taken as ment, establish each of these granted ele Nova’s motion for sum- ments. “AId. mary powerless federal court judgment. The listed *6 jurisdiction create its appealed. by above own For the embellish reasons dis- below, ing cussed otherwise deficient allegations we VACATE the judgments of standing.” Arkansas, defendants and Whitmore v. DISMISS 495 for 149, lack of standing.4 U.S. 1717, 110 S.Ct. 109 (1990).
L.Ed.2d 135 ANALYSIS Standing is determined as of the time the action brought. is See As an Smith v. irreducible constitutional Sperling, 91, minimum, 1, 354 U.S. 93 n. plaintiff 77 S.Ct. satisfy must three 1112, 1 (1957); criteria in L.Ed.2d 1205 order for there see also to be a “case or Earth, Friеnds the controversy” that may be Inc. v. by resolved Laidlaw the of Servs., federal Envtl. Lujan 167, 180, courts. v. 528 U.S. 120 S.Ct. Defenders of Wildlife, 555, 693, 145 560, (2000) (“[W]e 504 2130, 112 L.Ed.2d 610 S.Ct. have an (1992). 119 First, L.Ed.2d 351 obligation to plain the assure [plain ourselves that tiff must have suffered an “injury in had tiff] Article III standing at the outset fact”—an invasion of a legally protected the litigation.”) added); (emphasis Fo of (a) interest that is both concrete par- and cus on Family the v. Pinellas Suncoast Fogarty, 4. Mike the CEO and appealed Administrator him, has not judgment against the of the Authority, Oklahoma Health Care was and we therefore do judg- not disturb that also proceedings defendant in the before the ment. 1, district court. As noted Fogarty in footnote
1155 have ex- volvement, certainly could (11th Nova 1263, 1275 Auth., F.3d 344 Transit new some business to lose pected be Cir.2003) (“Article standing must III in- obtain demanding that minors policy at which time of the determined Further, there is consent. parental person filed.”); v. Carr complaint plaintiffs actually in record that evidence 1055, Indus., Inc., F.2d 931 Alta Verde sought minors abor- away 31 turned Cir.1991) (“As questions all (5th 1061 2002, January July 2001 and between tions except moot jurisdiction subject matter of effect, because came into after date as of the determined ness, standing is new with Nova’s comply they, refused Accord complaint.”). of the filing policy. consent whether, as face we ingly, question summary enough, a concrete This evidence faced of June support conclu purposes, judgment in fact that was injury or imminent actual time Nova at the it imminent that was case and sion in this by caused would lose some that it brought this action judi by a favorable that was redressable Wulff, Singleton v. patients. cial order.5 106, 113, 49 96 S.Ct. 428 U.S. (1976) (identifying аbortion L.Ed.2d Fact Injury In
A. im a direct financial injury as providers’ Bolton, 410 v.Doe practice); on their pact in fact above, injury noted As 739, L.Ed.2d 201 179, 188, imminent, conjectur U.S. must be actual injury in (1973) may establish (physicians at Lujan, 504 U.S. hypothetical. al or regulations challenging abortion when fact possible “Allegations 2130. S.Ct. direct “sufficiently threat showing a satisfy require injury do not future Inn, detriment”); Inc. Salem personal injury threatened III. A ments of Art. (2d n. 10 Cir. Frank, F.2d to constitute ‘certainly impending’ must be 1975) when established (standing Whitmore, 495 U.S. injury fact.” compliance loss due economic suffered injury Article III “An 158, 110 ordinance). with a possibility.... more than ... must be both real sufficiently be dem- must The threat Nova has Accordingly, Essence, City Fed litigation Inc. stage immediate.” at this onstrated F.3d Heights, 285 and imminent eral a concrete faced *7 omitted). 2001, Cir.2002) of June specifically, (quotation More fact. it likelihood that imminent an faced
Nova seeking patients minor in the record lose some is evidence would There effect, one into that, § 1-740 came abortions.6 before seek would each month
or two minors B. Causation consulting first without Nova abortions at de this past light parent. We next turn to whether Nova's awith in- injury parental abortions without mand for in fact-the imminent threat that 381, FEC, v. 230 F.3d Becker ness issue. See v. Bab- Council Res. River Basin 5. In Powder Cir.2000). (1st 3 386 n. bitt, stand- plaintiff had "lost we stated 54 F.3d a lawsuit. ing” in middle of by Cir.1995). (10th Although we be redressable 1477, past injury would not Any 1484-85 sought in this Nova has prospective that this relief terminology, it seems standing used Rights County Diego Gun courts See San case. question. Other really a mootness was 1121, Reno, Cir. 1126 F.3d 98 using v. stand- Comm. River for Powder have criticized declaratory ("Because 1996) plaintiffs seek really a wаs moot- terminology ing for what 1156 chusetts, 788, 803, patients 2767, 505 U.S. 112 S.Ct.
Nova would lose some minor
seek-
(1992);
and these defendants. above, As explained § 1-740 makes abortion providers. any liable for subse- To invoke jurisdiction, federal quent medical costs by necessitated must show that his or injury her abortion performed that was without pa- “fairly traceable to the challenged action rental consent or knowledge. Okla. Stat. defendant, and not the result of the 63, § tit. 1-740. In addition to allowing independent action of party some third certain right minors the to recover their before the court.” Lujan, 504 U.S. at post-abortion expenses, medical appears omitted). S.Ct. (quotation As that the statute also enables suits medi- noted, courts have Article Ill’s cau cal facilities that incur certain treatment sation requirement “something demands costs that patients their fail to reimburse.7 less than concept ‘proximate ” cause.’ See Focus on the Family, produced has some evidence that F.3d at 1273. Yet Article III does at least § the enactment of 1-740 coerced it into require proof of a substantial likelihood requiring at least sort of parental some that the defendant’s conduct caused plain prior involvement to performing an abor- Evans, tiffs in fact. See Utah v. turn, tion on a minor. In there is evidence 452, 464, 536 U.S. 153 that Nova’s policy new made it imminent L.Ed.2d (2002); Franklin v. Massa- it would lose some minor patients.8 injunctive only relief ... it is applies only insufficient performed to abortions on mi- for them to only past demonstrate injury.”). “parental nors without consent or knowl- edge,” responded by requiring all mi- Additionally, possible Nova’s mere future in-person nors to parental obtain exposure consent. liability to civil § under 1-740 is too plain Under language paren- remote to constitute an actual imminent knowledge requirement tal injury in would have fact. Nova only could avoid- subject be prospective ed liability liability civil under the performs if it statute an abor- just as tion on a well. It would parental likely minor without have also re- consent or knowledge, duced Nova's threat patients, if that requires subsequent lost at least to abortion, medical degree. some treatment because of that Ohio Akron Ctr. Re- Health, productive if the minor dоes in fact obtain 497 U.S. such Although treatment. (1990) such a chain of events L.Ed.2d 405 (recogniz- possible, be ing indeed threat that a requirement this consent kind of is far from immediate. more intrusive than a parental notification requirement). *8 any 7. Absent narrowing construction that the point, "At standing may some be may Oklahoma ultimately provide, courts denied we solely&emdash;attributable injury because solely&emdash;or almost n the follow the seems reading § most literal of 1-740 and ing only plaintiff.... assume that provides this statute is a cause of the Stand- defeated completely it post-abortion action to is thatthe providers health so as if concluded well plaintiff's as to to the the woman post- for faultas herself all own due to abortion expenses medical breakthe causalchain.”13 incurred as a Prac. Fed. & re- Proc-. 3531.5, (2004); § sult of the abortion. Juris.2d Causa tion also see Pennsylvania 660, sey, NewJer 426U.S. v. that, extent, 8. We ("No note significant to a 2333, 664, 96 (1976) Nova's L.Ed.2d124 49 [party] injury was Although self-inflicted. § 1-740 [party] can can be heard be heard that effect with coercive plaintiff! the ] si- conspicuously However, the record by the might applied be particular the how to respect lent defendants.” Foster, F.3d v. Okpalobi have affected might this case in defendants (en banc) Cir.2001) original) in (emphasis con- parental demand to decision
Nova’s attor- pa- governor lost a imminent that state’s resulting (holding or Nova’s sent defendants proper not ney general if at all. were injury, tients the to enforce power had no they when statute). to in the record Nothing has failed that Nova challenged holdWe be connection defendants required particular causal these distinguishes the show these defendants. have possibly its who anyone else could tween the defen that First, (including, no evidence § there is 1-740 someday under a claim do to threatened or might done have dants have who minors themselves example, for like a substantial presents anything that notifica- parental without an abortion seek Nova sub harm. causing Nova lihood subsequent med- might incur and who tion to offer its refusal evidence mitted costs). ical awas consent parental absent
abortions 1-740, § not to enactment response defen that these may be true It partic of these any actions to response a to sue power have the potentially dants nothing Additionally, officials. public ular 1-740, in event that under Nova that the conduct suggests the record (2) (1) not costs incur to medical happen substantially defendants any of these (3) were by patient reimbursed to offering abortions stop to Nova caused (4) per of an abortion because required involvement. parental without minors (6) (5) a without by Nova formed merely speculative Therefore, it is at best this knowledge. In consent caused Nova’s defendants these whether a multitude not unlike respect, 1-740 consent, with require parental to decision which tort laws under of other state of patients loss prospective concomitant someday have cause might The decision. from that flowed latent if these defendants’ Yet action. causa demonstrating burden plaintiffs support enough to were power litigate “[speculative when satisfied is not tion someday have might who standing, anyone necessary [its] to connect are inferences be summoned § 1-740 a claim under could Si actions.” See injury to the courts the federal before preemptively Org., Rights Ky. E. mon Welfare constitutionality of statute. defend 48 L.Ed.2d III allow Article does (1976). to do legislation challenge state wishes any defendant naming by as simply so words, “confus[ed] has circumstances, who, appropriate on one effect coercive immediate statute’s below, reasons, explained For other own damage inflicted complain about Michaelson, required caus- F.2d demonstrate hand.”); failed to Rodos Cir.1975) (no inju- standing the de- (1st injury and when between its al connection Therefore, ov- by plaintiffs' unreasonable is not ry was caused action. this fendants statute); Petro- to an abortion erreaction here whethеr necessary to address us EPA, 866 F.2d Processing, Inc. v. Chem have 1-740 would §to Nova's overreaction *9 (D.C.Cir.1989) (addressing the self-inflict- 438 chain. causal properly established broken injury the rubric an ed nature of causation). 1158
might conceivably have an occasion to file
cers” to challenge the
they
laws
execute as
damages
suit for avid
under the
representative
relevant
Wilson,
the state. See
state law at some future date.
who had authority further petroleum enforce a plaintiff franchise demonstrate a law substantial seeking like “stiff civil lihood remedies]”); the relief Corporate Ins., requested will Health re Inc. dress its Ins., Dep’t Texas fact. 526, Ash Creek 215 F.3d Mining (5th Cir.2000) Lujan, 868, Co. v. (finding F.2d standing to sue the Cir. 1992). Attorney General,
state The who could must enforce show that a the challenged favorable judgment act on the will state’s behalf relieve a discrete through injury, regulatory although it oversight responsibili need not relieve his or “[tjhis ty, and noting every her injury. Valente, is not a case in Larson v.
which private suits are only 243 n. means of statute]”), (1982).
enforcing abrogated [the L.Ed.2d 33 on oth grounds er by Rush HMO, Prudential We hold that Nova has failed to show Moran, Inc. v. 536 U.S. that a judgment against the defendants in (2002). 153 L.Ed.2d375 this action likely redress its lost cоntrast, patients defendants this injury. above, case As noted the rec- are charged with enforcing ord contains evidence that the enactment Rather, behalf. Oklahoma’s are sim- of 1-740 created the possibili- imminent ply able bring a civil ty suit under that that Nova would be reasonably coerced (along statute other potentially into turning away prospective pa- law) relevant state in their proprietary tients who would not obtain con- capacities as directors of certain public sent. Yet the record cannot support a medical institutions. Wilson deals only conclusion judgment that a enjoining only with suits against “state enforcement offi- suit filing to recover
1159 po- deterring other injury by its redress redress would § 1-740 under damages 1-740, §on relying litigants from tential injury. that matter, initial an court. As in state even “redressability case, many, like In this entirely speculative. argument Nova’s of a sides as two overlap traceability the it overlooks fundamentally, More Valley Elec. Cache coin.” causation the of be the effect it must that principle 149 F.3d Transp., Dep’t v. Utah Co. of that the defendant on judgment court’s Cir.1998) (10th omit- (quotation 1119, 1123 injury, whether plaintiffs redresses the en- were ted). defendants if these Even Ash Creek indirectly. See or directly Nova damages against seeking from joined (the re- Co., 875 F.2d at Mining 969 mul- be a 1-740, still there would under “the to whether looks dressability inquiry who litigants prospective other titude of the redress will requested relief act. that sue Nova potentially could added); claimed”) v. (emphasis Cox in Nova’s judgment significantly, Most 1345, 1348 F.3d Corp., 43 Dodge Phelps lawsuits nothing prevent to do favor would Cir.1994) (“[W]hat makes deсlara- who patients minor the against judicial proper ‘a action tory judgment care, medical subsequent actually require rath- controversy’ or a ‘case of resolution hospi- or non-defendant by any or doctors the set- advisory opinion is than er may treat who clinics and medical tals affects the which dispute tling of some them. the toward behavior defendant ”) by statute (superceded plaintiff.’ sug- in the record nothing Consequently, added) (quoting (emphasis grounds) defen- against these judgment that a gests 761, 755, 107 Helms, 482 U.S. v. Hewitt the coercive materially reduce would dants (1987)). “If 654 2672, 96 L.Ed.2d S.Ct. pre- claims § 1-740 that effect everyone simply assume may courts minors offering abortions it from vented par- proper not are (including those turn, such In consent. without action) ra- legal will honor to an ties pre- likely nothing do judgment would decrees, then underlie their tionales patients losing vent Nova always exist. Redress- redressability will be substan- future, not and thus would able court be that the requires ability Nova’s to redress tially likely of its exercise through the relief (at afford Essence, at 1280 285 F.3d fact. See persuasive through the power, allegations stage, mere judgment summary opinion awe-inspiring effect even support enough to redressability are not power.” the exercise explaining standing). 788, Massachusetts, 505 U.S. v.
Franklin 2767, 636 120 L.Ed.2d 825, 112 S.Ct. ar reject Nova’s Finally, we concurring) (emphasis (Scalia, J., (1992) declaratory a favorable gument omitted).9 against these judgment ap- likely redress certain report would sus Franklin decisions in Supreme Court’s The
9. though it 788, injuries, even Massachusetts, portionment-related U.S. 505 (1992) duty (plurality) and to trans- ultimately 636 the President's 120 L.Ed.2d was Evans, S.Ct. Congrеss. 536 U.S. results apportionment Utah mit (2002) con- are not to 153 L.Ed.2d S.Ct. Franklin, at U.S. cases, held the Court trary. those Evans, 2767; Secretary Com- judgments Evans, re- explained in Court As the cen- of a modified requiring issuance merce *11 reasons, For these we hold judg- that a the federal courts to refrain from deter- against ment the defendants in this action mining validity legislation the of that until would not substantially be likely to redress part genuine the issue reaches us as of a patients Nova’s lost injury. controversy par- case or between adverse
ties-i.e., presenting in a case a claim of injury concrete and actual or imminent CONCLUSION traceable to the named defendants which by authority judg- Article Ill’s is redressable the of a standing requirements against guarantee ment those defendants. No such plaintiffs both and defen- controversy presented case or in this dants have a personal “such stake in the litigation. outcome of controversy the toas assure that concrete adverseness which sharpens We judgment VACATE the presentation the of issues upon which the district against court the defendants in this court so largely depends for illumination of appeal, and for DISMISS lack of standi difficult questions.” constitutional ng.10 Co., Duke Power at U.S. 98 S.Ct. BRISCOE, Judge, Circuit concurring & omitted). 2620 (quotation
dissenting:
I concur in
majority’s
Our decision that Nova's
conclusion
fairly
that Nova has
traceable to the defendants in
failed to demonstrate Arti-
likely
cle III standing for its claim seeking
this action and not
redressable
a
in-
judgment against
junctive relief.
I
dissent,
respectfully
these defendants reflects
policy.
however, from the majority’s conclusion
this fundamental
The incentives of
defendants-hospital
that Nova lacks standing to pursue its
these
directors and
university
po claim for declaratory
view,
relief.
In my
administrators-to
defend a
litically
par Nova has shown that the
conduct
divisive abortion statute is not
ticularly strong,
present
defendants is causally connected to Nova’s
at least at the
and,
further,
time when these defendants have no actual
that our declaring
1-
against
unconstitutional would
inju-
redress its
or imminent claims
Nova under
ries.
sensibly requires
the statute. Articte III
likely
dress is
under such circumstances be-
potential
litigants would consider
cause a
compel
court could
Secretary
themselves bound by
judgment
a
to which
(cid:127)
substitute a
report
new census
for the
parties.
old
were not
one,
consequent
apportionment-related
steps
Evans,
purely
bе
mechanical.
dissent,
10. The
in
suggests
Footnote
at
between these
myriad
defendants and the
we find Nova lacks
standing,
Constitutional
other parties
might
assert claims
we
required
are not
to address Nova’s stand-
nothing
1-740 and
ing,
the rec-
third-party,
as a
rights
to assеrt the
of its
suggest
ord
any significant
patients.
likelihood that
majority’s
con
support
I find no
a liti-
standing,
III
Article
To establish
injury-
that Nova must show “substantial
clusion
it has suffered
must show
gant
conduct caused
fairly traceable to
*12
that defendants’
in-fact,
injury is
likelihood”
that the
conduct,
in
The reason
injuries
unlawful
this case.
allegedly
Nova’s
the defendant’s
re-
likely
is
to be
injury
support
apparent.
the
conclusion lacks
is
and that
this
v.
Lujan
relief.
by
requested
plaintiff
dressed
In
such as this where the
a case
555, 560-
Wildlife, 504 U.S.
a
review of
stat
pre-enforcement
seeks
of
Defenders
(1992).
L.Ed.2d
119
351
constitutionality, it is often the case
ute’s
concludes,
Here,
majority correctly
(or
as the
has not enforced
the defendant
inju-
an
demonstrated
clear Nova has
enforce)
is
the statute.
even threatened to
(“Nova
an imminent likeli-
faced
ry-in-fact
explained
As this court
Wilson Stock
pa-
it would lose some
hood that
er,
Cir.1987), 819 F.2d
Maj. Op. at
seeking abortions.”
tients
prevent
does not
lack of enforcement alone
1155.).
causation.
plaintiff
proving
a
that,
correctly
to
majority
states
The
a
has often found
Supreme Court
[T]he
causation,
his
plaintiff
a
must show
prove
controversy
plaintiff
between a
case or
to the
“fairly traceable
is
or her
constitutionality of a
challenging the
defendant, and not
of the
challenged action
and an enforcement official
statute
of
action
independent
the result
prosecute the
attempt
made no
has
the court.”
party
third
not before
some
at issue.
In Doe
under the law
560,
statute
as the source
partial
nia’s
birth abortion ban was “so
injury.
vague as to be impervious
readily
to a
susceptible narrowing construction, [and
Wilson,
(internal
I disagree also with the majority’s con- clusion that these defendants are somehow Section provides: 1-740 “Any person improper defendants because are not who performs an abortion on a minor with- directly charged with enforcement of the out parental consent or knowledge shall be statute. Nova seeks declaratory relief. liable for the of any cost subsequent medi- As the majority notes, correctly “a plaintiff cal treatment such minor might require challenging the constitutionality of a state because of the abortion.” Okla. Stat. Ann. statute has a sufficiently legal adverse in- 63, § tit. face, 1-740. On its the statute terest to a state sued enforcement officer liability creates for an abortion provider in his representative capacity to create a performs who an abortiоn on a minor with- substantial controversy when ... out parental consent for subsequent plaintiff shows an appreciable threat of medical treatment may require injury flowing directly the statute." abortion, because of the but places it no Id. at 947 (emphasis added); see also limitations on class potential plain- Wasden, Planned Parenthood v. 376 F.3d may tiffs that sue abortion providers to (9th Cir.2004) (noting the fact that recover those Thus, expenses. medical un- defendants, attorney general and county like the statutes at issue in Hope Clinic v.
prosecutor were empowered to enforce Ryan,
(7th Cir.2001)
is unconstitutional. Roe v. 410 U.S.
113, 166,
(1973) (refusing to address propriety of
injunctive relief on that declaratory basis
relief sufficiently plaintiffs’ redressed inju-
ry)- injured has that, been the fact
as a § result of enactment of it has
faced an imminent likelihood that it would
lose patients some who are minors seeking abortions. The relief Nova requests ais America, UNITED STATES of § declaration that 1-740 is unconstitutional Plaintiff-Appellee, vague
because is so that it violates due process. If we declare 1-740 unconsti- tutional, there is a substantial likelihood Henry WILSON, Darian Defendant- precedential value opinion of our Appellant. prevent
will future parties from attempt- ing to recover under 1-740. Nova will No. 03-5207.
be able to offer abortions to minors with-
*15
United States Court of Appeals,
out the fear that parties
§
will use
Tenth Circuit.
Thus,
to sue Nova.
the declaration Nova
requests sufficiently
inju-
redresses Nova’s
July
2005.
ry by granting it a substantial
for
basis
confidence in the legality of its conduct.
Roe,
Because Nova has demonstrated an inju-
ry-in-fact, causation, and redressability, I
conclude Nova has standing in its individu-
al capacity to sue Cline, defendants Gandy,
Halligan, and I Boren.3 proceed
address defendants’ claim that they are
immune suit under the Eleventh and,
Amendment if defendants were found 3. I ever, Because conclude standing Nova has given the statute's unusually broad lan- sue defendants in capacity, its individual I do guage, it is not task our part determine not reach the issue of' whether Nova has standing analysis whether the defen- third-party standing to sue on behalf dant state actually officials would enforce the patients. The majority's dismissal of Nova’s act. To the extent the defendants here are claims for lack standing fails to address unlikely to enforce I would address ground this asserted standing. part that issue as of the Eleventh Amendment analysis. I majority's share the concern that some of might improper be insofar as likely are not to enforce 1-740. How-