Nova Health Systems v. Fogarty

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 3 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

NOVA HEALTH SYSTEMS, doing
business as Reproductive Services, on
behalf of itself, its staff and its
patients,

Plaintiff - Appellee,

v.

DEAN GANDY, in his official
capacity as Executive Director of the
University Hospital Authority; TERRY
L. CLINE, in his official capacity as
Commissioner of the Oklahoma
Department of Mental Health and
Substance Abuse Services; DR.
JAMES HALLIGAN, in his official
No. 02-5094
capacity as President of Oklahoma
State University; DAVID L. BOREN,
in his official capacity as President of
the University of Oklahoma,

Defendants - Appellants,

and

MIKE FOGARTY, in his official
capacity as Chief Executive Officer of
the Oklahoma Health Care Authority,

Defendant.

SEVENTY-SIX OKLAHOMA STATE
 LEGISLATORS,

Amicus Curiae.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 01-CV-419-EA)

Teresa Stanton Collett, Houston, Texas, for Amicus Curiae in support of
Defendants-Appellants (Elizabeth R. Sharrock, Assistant Attorney General,
Oklahoma City, Oklahoma, for Defendants-Appellants on the briefs).

Bebe J. Anderson, Center for Reproductive Rights, New York, New York, for
Plaintiff-Appellee (M.M. Hardwick, Tulsa, Oklahoma, with her on the briefs).

Before EBEL, BRISCOE, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

An Oklahoma statute makes abortion providers liable for any subsequent

medical costs that may be required because of an abortion performed on a minor

without parental consent or knowledge. Seeking to challenge the constitutionality

of that statute, Nova Health Services (“Nova”), an abortion provider, brought this

action for injunctive and declaratory relief against various officials who oversee

certain public health care facilities in Oklahoma. These public officials have not

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attempted to recover any medical costs from Nova under the challenged statute,

although it is possible that they may seek to do so sometime in the future.

The district court held that there was a justiciable case or controversy

between the parties and entered summary judgment against the defendants. The

court issued declaratory and injunctive relief against the defendants, declaring

that the Oklahoma statute imposed an unconstitutional burden on a woman’s

ability to obtain an abortion and was excessively vague.

We now hold that Nova lacked standing to bring this lawsuit because it has

not shown that the injury it may have suffered due to the challenged Oklahoma

law was caused by these particular defendants or that it would be redressed by a

judgment against them. Indeed, nothing in the record distinguishes these

defendants from any other party who might one day have the occasion to seek

compensatory damages under the challenged statute as a civil plaintiff. A party

may not attack a tort statute in federal court simply by naming as a defendant

anyone who might someday have a cause of action under the challenged law.

Absent a genuine case or controversy between the parties, it is not

constitutionally permissible for the federal courts to decide the issues presented.

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Accordingly, we VACATE the order of the district court against the defendants in

this appeal, 1 and DISMISS for lack of jurisdiction.

BACKGROUND

Prior to June 2001, Nova offered abortions to minors without requiring that

they first notify a parent. According to Nova, it “saw approximately one to two

minors a month who had not consulted with a parent regarding their abortion.”

When a prospective minor patient stated that she had not talked to a parent about

the abortion, Nova would encourage her to do so but would ultimately leave that

decision to the patient. In “many cases,” the minor eventually would choose to

consult with a parent about the abortion.

In June 2001, Oklahoma enacted a law providing that:

Any person who performs an abortion on a minor without parental consent
or knowledge shall be liable for the cost of any subsequent medical
treatment such minor might require because of the abortion.

Okla. Stat. tit. 63, § 1-740. Although this law applies only to abortions performed

on minors without parental “consent or knowledge,” Nova responded by deciding

that, in the future, it would require minors to produce in-person parental consent

in order to obtain an abortion there. Since § 1-740 came into effect, Nova alleges

1
Our opinion does not disturb the judgment against Mike Forgarty, a
defendant below who did not appeal the judgment against him.

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that it has “turn[ed] away young women who have valid and compelling reasons

for not involving their parents in their decision.” More specifically, Nova asserts

that between July 2001 and January 2002 at least 31 minors declared that they

would not bring a parent to the clinic to give consent. 2

Less than a week after § 1-740 came into effect, Nova filed the instant

lawsuit in federal district court seeking declaratory and injunctive relief. The

four defendants in this appeal are Oklahoma public officials whose functions

include overseeing certain state medical institutions. Nova alleged in its

complaint that each of these institutions provide some form of medical treatment

services, but the record does not detail the scope of their activities.

Dean Gandy is the Executive Director of the University Hospitals

Authority, which oversees Oklahoma Memorial Hospital and Children’s Hospital

of Oklahoma. See Okla. Stat. tit. 63, § 3204. Terry L. Cline is the Commissioner

of the Oklahoma Department of Mental Health and Substance Abuse Services,

which manages state institutions designed to treat mental illness and drug and

alcohol dependency. See Okla. Stat. tit. 43A, § 2-102. David L. Boren is the

President of the University of Oklahoma, which includes the University of

Oklahoma Health Science Center in Tulsa and the University of Oklahoma

2
Nova admits that it is unclear how many, if any, of these women
ultimately returned and obtained an abortion at Nova with parental consent.

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Medical Center in Oklahoma City. See Okla. Stat. tit. 70, §§ 3103, 3301. James

Halligan is the President of Oklahoma State University, which includes the

Oklahoma State University College of Osteopathic Medicine and Surgery in

Tulsa. See Okla. Stat. tit. 70, §§ 3103, 3423.

Before the district court, Nova argued that § 1-740 is unconstitutional

because it lacks an exception for abortions performed in medical emergencies,

lacks a judicial bypass procedure, and is impermissibly vague. The defendants

argued, among other things, that Nova failed to demonstrate Article III standing.

The district court denied the defendants’ motions to dismiss and motions for

summary judgment, and granted Nova’s motion for summary judgment. The

defendants listed above appealed. For the reasons discussed below, we VACATE

the judgments against these defendants and DISMISS for lack of standing. 3

ANALYSIS

As an irreducible constitutional minimum, a plaintiff must satisfy three

criteria in order for there to be a “case or controversy” that may be resolved by

the federal courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

3
Mike Fogarty, the CEO and Administrator of the Oklahoma Health Care
Authority, was also a defendant in the proceedings before the district court. As
noted in footnote 1, Fogarty has not appealed the judgment against him, and we
therefore do not disturb that judgment.

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First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally

protected interest that is both (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical. Id. Second, there must be a causal

connection between that injury and the challenged action of the defendant – the

injury must be “fairly traceable” to the defendant, and not the result of the

independent action of some third party. Id. Finally, it must be likely, not merely

speculative, that a favorable judgment will redress the plaintiff’s injury. Id. at

561.

We review questions of standing de novo. Utah v. Babbitt, 137 F.3d 1193,

1203 (10th Cir. 1998). As the party seeking to invoke federal jurisdiction, the

plaintiff (here Nova) has the burden of establishing each of these three elements

of Article III standing. See Lujan, 504 U.S. at 561. At the summary judgment

stage, the plaintiff must set forth by affidavit or other evidence specific facts that,

if taken as true, establish each of these elements. Id. “A federal court is

powerless to create its own jurisdiction by embellishing otherwise deficient

allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990).

Standing is determined as of the time the action is brought. See Smith v.

Sperling, 354 U.S. 91, 93 n.1 (1957); see also Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (“[W]e have an obligation to

assure ourselves that [plaintiff] had Article III standing at the outset of the

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litigation.”) (emphasis added); Focus on the Family v. Pinellas Suncoast Transit

Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (“Article III standing must be

determined as of the time at which the plaintiff’s complaint is filed.”); Carr v.

Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991) (“As with all

questions of subject matter jurisdiction except mootness, standing is determined

as of the date of the filing of the complaint.”). Accordingly, the question we face

is whether, as of June 2001, Nova faced a concrete and actual or imminent injury

in fact that was caused by the defendants in this case and that was redressable by

a favorable judicial order. 4

A. Injury In Fact

As noted above, an injury in fact must be actual or imminent, not

conjectural or hypothetical. Lujan, 504 U.S. at 560. “Allegations of possible

future injury do not satisfy the requirements of Art. III. A threatened injury must

be ‘certainly impending’ to constitute injury in fact.” Whitmore, 495 U.S. at 158.

“An Article III injury ... must be more than a possibility. ... The threat of injury

4
In Powder River Basin Res. Council v. Babbitt, we stated that a plaintiff
had “lost standing” in the middle of a lawsuit. 54 F.3d 1477, 1484-85 (10th Cir.
1995). Although we used standing terminology, it seems that this was really a
mootness question. Other courts have criticized Powder River for using standing
terminology for what was really a mootness issue. See Becker v. FEC, 230 F.3d
381, 386 n.3 (1st Cir. 2000).

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must be both real and immediate.” Essence, Inc. v. City of Federal Heights, 285

F.3d 1272, 1282 (10th Cir. 2002) (quotation omitted).

There is evidence in the record that, before § 1-740 came into effect, one or

two minors each month would seek abortions at Nova without first consulting

with a parent. In light of this past demand for abortions without parental

involvement, Nova certainly could have expected to lose some business under its

new policy demanding that minors obtain in-person parental consent. Further,

there is evidence in the record that Nova actually turned away 31 minors who

sought abortions between July 2001 and January 2002, after § 1-740 came into

effect, because they refused to comply with Nova’s new parental consent policy.

This evidence is enough, for summary judgment purposes, to support a

conclusion that it was imminent at the time Nova brought this action that it would

lose some minor patients. See Singleton v. Wulff, 428 U.S. 106, 113 (1976)

(identifying abortion providers’ injury as a direct financial impact on their

practice); Doe v. Bolton, 410 U.S. 179, 188 (1973) (physicians may establish

injury in fact when challenging abortion regulations by showing a “sufficiently

direct threat of personal detriment”); Salem Inn, Inc. v. Frank, 522 F.2d 1045,

1047 n.10 (2d Cir. 1975) (standing established when plaintiff suffered economic

loss due to compliance with a challenged ordinance).

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 Accordingly, Nova has sufficiently demonstrated at this stage of the

litigation that it faced a concrete and imminent injury in fact. More specifically,

as of June 2001, Nova faced an imminent likelihood that it would lose some

minor patients seeking abortions. 5

B. Causation

We next turn to whether Nova’s injury in fact – the imminent threat that

Nova would lose some minor patients seeking abortions – is fairly traceable to the

defendants in this action. We hold that Nova has failed to demonstrate the

necessary causal connection between its injury and these defendants.

To invoke federal jurisdiction, a plaintiff must show that his or her injury is

“fairly traceable to the challenged action of the defendant, and not the result of

the independent action of some third party not before the court.” Lujan, 504 U.S.

5
Any past injury would not be redressable by the prospective relief Nova
has sought in this case. See San Diego County Gun Rights Comm. v. Reno, 98
F.3d 1121, 1126 (9th Cir. 1996) (“Because plaintiffs seek declaratory and
injunctive relief only ... it is insufficient for them to demonstrate only a past
injury.”).
Additionally, Nova’s mere possible future exposure to civil liability under
§ 1-740 is too remote to constitute an actual or imminent injury in fact. Nova
could only be subject to liability under § 1-740 if it performs an abortion on a
minor without parental consent or knowledge, if that minor requires subsequent
medical treatment because of that abortion, and if the minor does in fact obtain
such treatment. Although such a chain of events would indeed be possible, any
threat of this kind of injury is far from immediate.

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at 560 (quotation omitted). As other courts have noted, Article III’s causation

requirement demands “something less than the concept of ‘proximate cause.’”

See Focus on the Family, 344 F.3d at 1273. Yet Article III does at least require a

“but for” (or “factual”) causal connection between the plaintiff’s injury in fact

and the defendant haled into federal court. See Community Nutrition Inst. v.

Block, 698 F.2d 1239, 1247 (D.C. Cir. 1983) (“[A] plaintiff must show that the

injury fairly can be traced to the challenged action ... A plaintiff need only make a

reasonable showing that ‘but for’ defendant’s action the alleged injury would not

have occurred.”) (quotation omitted) (rev’d on other grounds by 467 U.S. 340

(1984)); Pitt News v. Fisher, 215 F.3d 354, 360-61 (3d Cir. 2000) (finding Article

III causation because “but for” the defendants’ enforcement of the challenged

law, plaintiff would not have suffered its injury); see also Duke Power Co. v.

Carolina Envtl. Study Group, Inc., 438 U.S. 59, 74-78 (1978) (finding Article III

standing based upon a “‘but for’ causal connection”).

A defendant’s conduct can be described as a but for cause of the plaintiff’s

injury if that injury would not have occurred absent that defendant’s conduct. See

Connor v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997); see also

Restatement (Third) of Torts § 26, cmt. b (Tentative Draft No. 2) (2004) (“[A]n

act is a factual cause [or but for cause] of an outcome if, in the absence of the act,

the outcome would not have occurred.”). Additionally, courts are willing to

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recognize an act as the equivalent of a but for cause if it is independently

sufficient to cause the plaintiff’s injury, even if there was also some other

sufficient cause. See Restatement (Third) of Torts, § 27, cmt. a (Tentative Draft

No. 2) (2004). 6 We therefore must examine whether the conduct of the

defendants in this action was a “but for cause” (or a “factual cause”) of Nova’s

injury in fact.

As explained above, § 1-740 makes abortion providers liable for any

subsequent medical costs necessitated by an abortion that was performed without

parental consent or knowledge. Okla. Stat. tit. 63, § 1-740. In addition to

allowing certain minors the right to recover their post-abortion medical expenses,

it appears that the statute also enables suits by medical facilities that incur certain

treatment costs that their patients fail to reimburse. 7

6
The classic example is when two fires join together to destroy property,
and either would have been strong enough on its own to have caused the full
extent of the damage. In such case, neither fire is a “but for” cause in a strict
sense because the other fire would have wreaked the same havoc in its absence.
Nevertheless, both fires are recognized to be a factual cause of the injury because
“defendant[s] ... fully capable of causing plaintiff’s harm should not escape
liability merely because of the fortuity of another sufficient cause.” See
Restatement (Third) of Torts, § 27, cmt. a, c (Tentative Draft No. 2) (2004).
7
Absent any narrowing construction that the Oklahoma courts may
ultimately provide, we follow the most literal reading of § 1-740 and assume that
this statute provides a cause of action to post-abortion health providers as well as
to the woman herself for all post-abortion medical expenses incurred as a result of
the abortion.

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 Nova has produced some evidence that the enactment of § 1-740 coerced it

into requiring at least some sort of parental involvement prior to performing an

abortion on a minor. In turn, there is evidence that Nova’s new policy made it

imminent that it would lose some minor patients. 8 However, the record is

conspicuously silent with respect to how the particular defendants in this case

might have affected Nova’s decision to demand parental consent or Nova’s

resulting imminent lost patients injury, if at all.

8
We note that, to a significant extent, Nova’s injury was self-inflicted.
Although § 1-740 applies only to abortions performed on minors without
“parental consent or knowledge,” Nova responded by requiring all minors to
obtain in-person parental consent. Under the plain language of § 1-740, a
parental knowledge requirement would have avoided prospective civil liability
under the statute just as well. It would have also likely reduced Nova’s threat of
lost patients, at least to some degree. See Ohio v. Akron Ctr. for Reproductive
Health, 497 U.S. 502, 511 (1990) (recognizing that a parental consent requirement
is more intrusive than a parental notification requirement).
“At some point, standing may be denied because the injury seems solely –
or almost solely – attributable to the plaintiff. ... Standing is defeated only if it is
concluded that the injury is so completely due to the plaintiff’s own fault as to
break the causal chain.” 13 Fed. Prac. & Proc. Juris. 2d § 3531.5, Causation
(2004); see also Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (“No
[party] can be heard to complain about damage inflicted by its own hand.”);
Rodos v. Michaelson, 527 F.2d 582, 584-85 (1st Cir. 1975) (no standing when
injury was caused by plaintiffs’ unreasonable overreaction to an abortion statute);
Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 1989)
(addressing the self-inflicted nature of an injury under the rubric of causation).
For other reasons, as explained below, Nova failed to demonstrate the
required causal connection between its injury and the defendants in this action.
Therefore, it is not necessary for us to address here whether Nova’s overreaction
to § 1-740 would have broken a properly established causal chain.

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 We hold that Nova has failed to show a but-for causal connection between

its injury and these defendants. First, there is no evidence suggesting that, but for

the actions of these defendants, Nova’s likelihood of losing minor patients would

have been any different. Nova submitted evidence that its refusal to offer

abortions absent parental consent was a response to the enactment of § 1-740, not

to any actions of these particular public officials. Additionally, nothing in the

record suggests that the conduct of any of these defendants was enough, on its

own, to cause Nova to stop offering abortions to minors without parental

involvement. Therefore, it is at best merely speculative whether these defendants

had any but-for causal impact on Nova’s decision to require parental consent, or,

consequently, on the imminent loss of patients that flowed from that decision.

The plaintiff’s burden of demonstrating causation is not satisfied when

“[s]peculative inferences are necessary to connect [its] injury to the challenged

actions.” See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45-46 (1976).

In other words, Nova has “confus[ed] the statute’s immediate coercive

effect on the plaintiff[] with any coercive effect that might be applied by the

defendants.” See Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en banc)

(emphasis in original) (holding that a state’s governor and attorney general were

not proper defendants when they had no power to enforce the challenged statute).

Nothing in the record distinguishes these particular defendants from anyone else

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who could possibly have a claim someday under § 1-740 (including, for example,

minors themselves who might seek an abortion without parental notification and

who might incur subsequent medical costs).

It may be true that these defendants potentially have the power to sue Nova

under § 1-740, in the event that they happen to (1) incur medical costs (2) not

reimbursed by the patient (3) that were required because of an abortion

(4) performed by Nova (5) on a minor (6) without parental consent or knowledge.

In this respect, § 1-740 is not unlike a multitude of other state tort laws under

which these defendants might someday have a cause of action. Yet if these

defendants’ latent power to litigate were enough to support standing, anyone who

might someday have a claim under § 1-740 could be summoned preemptively

before the federal courts to defend the constitutionality of that statute. Article III

does not allow a plaintiff who wishes to challenge state legislation to do so

simply by naming as a defendant anyone who, under appropriate circumstances,

might conceivably have an occasion to file suit under the relevant state law at

some future date.

Furthermore, it makes no difference in this case that each of the defendants

are public officials sued in their official capacities. In Wilson v. Stocker, we

noted that an official who is charged with enforcing a state statute on behalf of

the entire state is a proper defendant, so long as the plaintiff shows an appreciable

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threat of injury flowing directly from the statute. 819 F.2d 943, 947 (10th Cir.

1987) (finding standing to sue the Oklahoma Attorney General to challenge a

state criminal statute he was charged with enforcing). Other courts have reached

similar conclusions. See Mobil Oil Corp. v. Attorney General of Va., 940 F.2d

73, 74-75, 76 n.2 (4th Cir. 1991) (finding standing to sue “the state’s enforcement

officer (the Attorney General)” who had authority to enforce a petroleum

franchise law by seeking “stiff civil remed[ies]”); Corporate Health Ins., Inc. v.

Texas Dep’t of Ins., 215 F.3d 526, 532 (5th Cir. 2000) (finding standing to sue

the state Attorney General, who could enforce the challenged act on the state’s

behalf through regulatory oversight responsibility, and noting that “[t]his is not a

case in which private suits are the only means of enforcing [the statute]”),

abrogated on other grounds by Rush Prudential HMO, Inc. v. Moran, 536 U.S.

355 (2002).

In contrast, the defendants in this case are not charged with enforcing

§ 1-740 on Oklahoma’s behalf. Rather, they are simply able to bring a civil suit

under that statute (along with any other potentially relevant state law) in their

proprietary capacities as directors of certain public medical institutions. Wilson

deals only with suits against “state enforcement officers” to challenge the laws

they execute as a representative of the state. See Wilson, 819 F.2d at 947.

Wilson did not vest all public officials with standing to litigate the

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constitutionality of any state legislation that might be the basis of a future lawsuit

in which the state agency might be a civil litigant seeking compensatory damages.

In sum, although Nova has shown that it suffered an injury in fact, it has

failed to demonstrate that its injury was caused by “the challenged action of the

defendant[s], and not the result of the independent action of some third party not

before the court.” Cf. Lujan, 504 U.S. at 560 (quotation omitted). Therefore,

Article III does not permit us to decide the merits of Nova’s claims.

C. Redressability

Article III further requires that the plaintiff demonstrate a substantial

likelihood that the relief requested will redress its injury in fact. Ash Creek

Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir. 1992). The plaintiff must

show that a favorable judgment will relieve a discrete injury, although it need not

relieve his or her every injury. Larson v. Valente, 456 U.S. 228, 243 n.15 (1982).

We hold that Nova has failed to show that a judgment against the

defendants in this action would likely redress its lost patients injury. As noted

above, the record contains evidence that the enactment of § 1-740 created the

imminent possibility that Nova would be reasonably coerced into turning away

prospective minor patients who would not obtain parental consent. Yet the record

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cannot support a conclusion that a judgment enjoining only these defendants from

filing suit to recover damages under § 1-740 would redress that injury.

In this case, like many, “redressability and traceability overlap as two sides

of a causation coin.” See Cache Valley Elec. Co. v. Utah Dep’t of Transp., 149

F.3d 1119, 1123 (10th Cir. 1998) (quotation omitted). Even if these defendants

were enjoined from seeking damages against Nova under § 1-740, there would

still be a multitude of other prospective litigants who could potentially sue Nova

under that act. Most significantly, a judgment in Nova’s favor would do nothing

to prevent lawsuits against Nova by the minor patients who actually require

subsequent medical care, or by any doctors or non-defendant hospitals and

medical clinics who may treat them.

Consequently, nothing in the record suggests that a judgment against these

defendants would materially reduce the coercive effect of § 1-740 that Nova

claims prevented it from offering abortions to minors without parental consent.

In turn, such a judgment would likely do nothing to prevent Nova from losing

minor patients in the future, and thus would not be substantially likely to redress

Nova’s injury in fact. See Essence, 285 F.3d at 1280 (at the summary judgment

stage, mere allegations of redressability are not enough to support standing).

Finally, we reject Nova’s argument that a favorable declaratory judgment

against these defendants would redress its injury by deterring other potential

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litigants from relying on § 1-740, even in state court. As an initial matter, Nova’s

argument is entirely speculative. More fundamentally, it overlooks the principle

that it must be the effect of the court’s judgment on the defendant that redresses

the plaintiff’s injury, whether directly or indirectly. See Ash Creek Mining Co.,

969 F.2d at 875 (the redressability inquiry looks to whether “the relief requested

will redress the injury claimed”) (emphasis added); Cox v. Phelps Dodge Corp.,

43 F.3d 1345, 1348 (10th Cir. 1994) (“[W]hat makes a declaratory judgment

action ‘a proper judicial resolution of a ‘case or controversy’ rather than an

advisory opinion is the settling of some dispute which affects the behavior of the

defendant toward the plaintiff.’”) (superceded by statute on other grounds)

(emphasis added) (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)). “If

courts may simply assume that everyone (including those who are not proper

parties to an action) will honor the legal rationales that underlie their decrees,

then redressability will always exist. Redressability requires that the court be

able to afford relief through the exercise of its power, not through the persuasive

or even awe-inspiring effect of the opinion explaining the exercise of its power.”

Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring)

(emphasis omitted). 9

9
The Supreme Court’s decisions in Franklin v. Massachusetts, 505 U.S.
788 (1992) (plurality) and Utah v. Evans, 536 U.S. 452 (2002) are not to the
(continued...)

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 For these reasons, we hold that a judgment against the defendants in this

action would not be substantially likely to redress Nova’s lost patients injury.

CONCLUSION

Article III’s standing requirements guarantee that both plaintiffs and

defendants have “such a personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination of difficult constitutional

questions.” See Duke Power Co., 438 U.S. at 72 (quotation omitted).

Our decision that Nova’s injury is not fairly traceable to the defendants in

this action and not likely redressable by a judgment against these defendants

9
(...continued)
contrary. In those cases, the Court held that judgments against the Secretary of
Commerce requiring issuance of a modified census report would likely redress
certain apportionment-related injuries, even though it ultimately was the
President’s duty to transmit apportionment results to Congress. Franklin, 505
U.S. at 800, 803; Evans, 536 U.S. at 463-64. As the Court explained in Evans,
redress is likely under such circumstances because a court could compel the
Secretary to substitute a new census report for the old one, and consequent
apportionment-related steps would be purely mechanical. Evans, 536 U.S. at 463-
64. “[I]n terms of our ‘standing’ precedent, the courts would have ordered a
change in a legal status (that of the ‘report’), and the practical consequence of
that change would amount to a significant increase in the likelihood that the
plaintiff would obtain relief.” Id. at 464; see also id. at 461. In contrast, there is
no relationship between these defendants and the myriad of other parties who
might assert claims against Nova under § 1-740 and nothing in the record to
suggest any significant likelihood that other potential litigants would consider
themselves bound by a judgment to which they were not parties.

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reflects this fundamental policy. The incentives of these defendants – hospital

directors and university administrators – to defend a politically divisive abortion

statute is not particularly strong, at least at the present time when these

defendants have no actual or imminent claims against Nova under the statute.

Article III sensibly requires the federal courts to refrain from determining the

validity of that legislation until the issue reaches us as part of a genuine case or

controversy between adverse parties – i.e., in a case presenting a claim of

concrete and actual or imminent injury traceable to the named defendants which is

redressable by the authority of a judgment against those defendants. No such case

or controversy is presented in this litigation.

We VACATE the judgment of the district court against the defendants in

this appeal, and DISMISS for lack of standing.
No. 02-5094, Nova Health Systems v. Gandy

BRISCOE, Circuit Judge, concurring & dissenting:

I concur in the majority’s conclusion that Nova has failed to demonstrate

Article III standing for its claim seeking injunctive relief. I respectfully dissent,

however, from the majority’s conclusion that Nova lacks standing to pursue its

claim for declaratory relief. In my view, Nova has shown that the conduct of

these defendants is causally connected to Nova’s injury and, further, that our

declaring § 1-740 unconstitutional would redress its injuries.

To establish Article III standing, a litigant must show it has suffered an

injury-in-fact, that the injury is fairly traceable to the defendant’s allegedly

unlawful conduct, and that the injury is likely to be redressed by the requested

relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Here, as the

majority correctly concludes, it is clear Nova has demonstrated an injury-in-fact

(“Nova faced an imminent likelihood that it would lose some minor patients

seeking abortions.” Maj. Op. at 10.).

The majority correctly states that, to prove causation, a plaintiff must show

his or her injury is “fairly traceable to the challenged action of the defendant, and

not the result of the independent action of some third party not before the court.”

Lujan, 504 U.S. at 560. However, the majority applies a heightened standard to

determine if Nova has established causation, stating, “Article III does at least

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require a ‘but for’ (or ‘factual’) causal connection between the plaintiff’s injury

in fact and the defendant haled into federal court.” Maj. Op. at 11. The majority

concludes Nova cannot establish causation because Nova is unable to show that,

“but for the actions of these defendants,” it would have continued providing

abortions to minors. Id. at 13. Further, the majority views Nova’s suing of state

officials in their official capacities as irrelevant to the causation analysis because

§ 1-740 does not explicitly charge these defendants with enforcement of § 1-740.

The majority reasons that, since these defendants are not responsible for enforcing

§ 1-740, Nova’s injuries are not fairly traceable to them.

I find no support for the majority’s conclusion that Nova must show that

“but for the actions of these defendants,” Nova’s injuries would not have

occurred. 1 The reason this conclusion lacks support is apparent. In a case such as

this where the plaintiff seeks pre-enforcement review of a statute’s

1
The majority cites Duke Power Co. v. Carolina Envtl. Study Group, Inc.,
438 U.S. 59, 74-78 (1978), as support. I do not read Duke Power as requiring a
plaintiff to prove a defendant was the “but for cause” of the plaintiff’s injury, but
rather as requiring that plaintiffs prove a “fairly traceable causal connection.” Id.
at 72. Any reference the Court made in Duke Power to a “but for” test was only a
statement of the Court’s agreement with the district court’s factual findings and
not a holding by the Court. Additionally, it is noteworthy that the Court has not
applied a “but for” test in subsequent standing cases. See, e.g., Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000); Franklin v.
Massachusetts, 505 U.S. 788 (1992); Lujan, 504 U.S. at 561. Similarly, I have
found no case from our court which requires that a plaintiff show a “but for”
causal connection between the asserted injury and the defendant.

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constitutionality, it is often the case that the defendant has not enforced (or even

threatened to enforce) the statute. As this court explained in Wilson v. Stocker,

819 F.2d 943, 947 (10th Cir. 1987), the lack of enforcement alone does not

prevent a plaintiff from proving causation.

[T]he Supreme Court has often found a case or controversy between
a plaintiff challenging the constitutionality of a statute and an
enforcement official who has made no attempt to prosecute the
plaintiff under the law at issue. In Doe v. Bolton, 410 U.S. 179
(1973), the Court found a justiciable controversy between doctors
subject to prosecution under criminal abortion statutes and the state
attorney general, “despite the fact that the record does not disclose
that any one of [the doctors] has been prosecuted, or threatened with
prosecution.” . . . [I]n Diamond v. Charles, 476 U.S. 54 (1986), the
Court stated that “the conflict between state officials empowered to
enforce a law and private parties subject to prosecution under that
law is a classic ‘case’ or ‘controversy’ within the meaning of Art.
III.” Id.
The legal principle underlying these decisions is the familiar
doctrine that “[a] suit against a state officer in his official capacity
is, of course, a suit against the State.” Thus a controversy exists not
because the state official is himself a source of injury, but because
the official represents the state whose statute is being challenged as
the source of injury.

Wilson, 819 F.2d at 946-47 (internal citations omitted). To require that a plaintiff

seeking to prove causation must first show that the defendant was the “but for”

cause of the plaintiff’s injury abandons this line of cases, which directly address

standing in the context of declaratory judgment actions.

I also disagree with the majority’s conclusion that these defendants are

somehow improper defendants because they are not directly charged with

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enforcement of the statute. Nova seeks declaratory relief. As the majority

correctly notes, “a plaintiff challenging the constitutionality of a state statute has

a sufficiently adverse legal interest to a state enforcement officer sued in his

representative capacity to create a substantial controversy when . . . the plaintiff

shows an appreciable threat of injury flowing directly from the statute.” Id. at

947 (emphasis added); see also Planned Parenthood v. Wasden, 376 F.3d 908, 919

(9th Cir. 2004) (noting fact that defendants attorney general and county

prosecutor were empowered to enforce Idaho parental consent statute was

sufficient to establish causation); Planned Parenthood v. Farmer, 220 F.3d 127,

147 (3d Cir. 2000) (noting because Pennsylvania’s partial birth abortion ban was

“so vague as to be impervious to a readily susceptible narrowing construction,

[and thus] effectuat[ed] a ban on the conventional types of abortions,” the act by

its existence presented an imminent injury which was more than fairly traceable to

the state’s potential enforcement of the act). In this case, Nova claims, and the

majority agrees, that the statute’s mere existence presents an “appreciable threat

of injury” based on the fact minors will not obtain abortions from Nova as a result

of § 1-740. Therefore, as I read Wilson, whether Nova has established its injury

is causally related to these defendants sued in their official capacities turns on

whether § 1-740 authorizes these defendants to sue Nova on behalf of the state.

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 Section 1-740 provides: “Any person who performs an abortion on a minor

without parental consent or knowledge shall be liable for the cost of any

subsequent medical treatment such minor might require because of the abortion.”

Okla. Stat. Ann. tit. 63, § 1-740. On its face, the statute creates liability for an

abortion provider who performs an abortion on a minor without parental consent

for any subsequent medical treatment the minor may require because of the

abortion, but it places no limitations on the class of potential plaintiffs that may

sue abortion providers to recover those medical expenses. Thus, unlike the

statutes at issue in Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001) (limiting

right to sue to maternal grandparents of aborted fetus), and Okpalobi v. Foster,

244 F.3d 405 (5th Cir. 2001) (limiting right to sue to mother of aborted fetus),

§ 1-740 does not provide a remedy for only private individuals. Similarly, unlike

the statute at issue in Wasden (establishing civil and criminal penalties for

abortion providers who perform abortions without parental consent), and Farmer

(instituting civil fines for abortion providers who perform partial birth abortions),

§ 1-740 does not provide a remedy enforceable by only public entities. Rather, §

1-740 permits both public and private entities to file suit. Section 1-740 permits

anyone who pays for “subsequent medical treatment” – whether that person or

entity is the State of Oklahoma or the grandmother of an aborted fetus – to sue an

abortion provider. I read § 1-740 as authorizing any state official to sue an

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abortion provider on behalf of the state to recover for a minor’s subsequent

medical expenses.

Here, Nova seeks declaratory relief against four state officials sued in their

official capacities, each of whom is authorized by § 1-740 to sue Nova for costs

the State of Oklahoma incurs on behalf of minors who obtain abortions from

Nova without parental consent. Nova decided to stop providing abortions to

minors based on its fear that Oklahoma state officials, acting in their official

capacities, would attempt to recover under § 1-740. Because Nova’s injury-in-

fact is fairly traceable to its fear that these defendants might enforce the statute, I

conclude Nova has sufficiently demonstrated causation vis-a ! -vis these

defendants.

To establish redressability, a plaintiff must show it is likely that a favorable

court decision will redress the injury to the plaintiff. See Lujan, 504 U.S. at 560.

Nova seeks a declaratory judgment, stating § 1-740 is unconstitutional because it

is facially vague. The majority reasons that a favorable declaratory judgment will

not redress Nova’s injuries because, even if we declare § 1-740 unconstitutional,

that declaration is only valid against these four defendants. Therefore, the

majority concludes Nova lacks standing because it is unable to obtain a

declaration as to the statute’s constitutionality against every potential party that

might use § 1-740 to sue Nova. I disagree.

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 A plaintiff seeking declaratory relief establishes redressability if the

practical consequence of a declaration “would amount to a significant increase in

the likelihood that the plaintiff would obtain relief that directly redresses the

injury suffered.” Utah v. Evans, 536 U.S. 452, 464 (2002); see also Franklin v.

Massachusetts, 505 U.S. 788, 803 (1992) (stating “we may assume it is

substantially likely that the President and other executive and congressional

officials would abide by an authoritative interpretation of the census statute and

constitutional provision by the District Court, even though they would not be

directly bound by such a determination”); Duke Power, 438 U.S. at 75 n.20 (“Our

recent cases have required no more than a showing that there is a ‘substantial

likelihood’ that the relief requested will redress the injury claimed.”). As regards

the present case, we may assume future parties that would sue under § 1-740 “will

give full credence” to a decision by this court that the statute is unconstitutional.

Roe v. Wade, 410 U.S. 113, 166 (1973) (refusing to address propriety of

injunctive relief on basis that declaratory relief sufficiently redressed plaintiffs’

injury).

Nova has been injured by the fact that, as a result of enactment of § 1-740,

it has faced an imminent likelihood that it would lose some patients who are

minors seeking abortions. The relief Nova requests is a declaration that § 1-740

is unconstitutional because it is so vague that it violates due process. If we

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declare § 1-740 unconstitutional, there is a substantial likelihood that the

precedential value of our opinion will prevent future parties from attempting to

recover under § 1-740. Nova will be able to offer abortions to minors without the

fear that parties will use § 1-740 to sue Nova. Thus, the declaration Nova

requests sufficiently redresses Nova’s injury by granting it a substantial basis for

confidence in the legality of its conduct. See Roe, 410 U.S. at 166.

Because Nova has demonstrated an injury-in-fact, causation, and

redressability, I conclude Nova has standing in its individual capacity to sue

defendants Gandy, Cline, Halligan, and Boren. 2 I would proceed to address

defendants’ claim that they are immune from suit under the Eleventh Amendment

and, if defendants were found not to be immune, to address the merits of Nova’s

claim. 3

2
Because I conclude Nova has standing to sue defendants in its individual
capacity, I do not reach the issue of whether Nova has third-party standing to sue
on behalf of its patients. The majority’s dismissal of Nova’s claims for lack of
standing fails to address this asserted ground for standing.
3
I share the majority’s concern that some of the defendants might be
improper insofar as they are not likely to enforce § 1-740. However, given the
statute’s unusually broad language, it is not our task to determine as part of the
standing analysis whether the defendant state officials actually would enforce the
act. To the extent the defendants here are unlikely to enforce § 1-740, I would
address that issue as part of the Eleventh Amendment analysis.

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