                                                                   FILED
                                                       United States Court of Appeals
                         UNITED STATES COURT OF APPEALS        Tenth Circuit

                                FOR THE TENTH CIRCUIT                   December 6, 2019
                            _________________________________
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
    JANE DOE, minor child who is unborn,
    by and through her father and next friend,
    John Doe,

          Plaintiff - Appellant,

    v.                                                       No. 19-5005
                                                 (D.C. No. 4:18-CV-00408-JED-FHM)
    MIKE HUNTER, in his official capacity                    (N.D. Okla.)
    as Oklahoma Attorney General; KEVIN
    STITT,* in his official capacity as
    Oklahoma Governor; WILLIAM P.
    BARR,** in his official capacity as
    U.S. Attorney General; U.S.
    DEPARTMENT OF JUSTICE;
    UNITED STATES OF AMERICA,

          Defendants - Appellees.
                         _________________________________

                                ORDER AND JUDGMENT***
                            _________________________________


*
 In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Kevin Stitt is substituted for Mary Fallin as the defendant-appellee in this action.
**
  In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
William P. Barr is substituted for Matthew G. Whitaker as the defendant-appellee in
this action.
***
   After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before TYMKOVICH, Chief Judge, KELLY and HARTZ, Circuit Judges.
                 _________________________________

       Jane Doe, an unborn child of less than 22 weeks’ gestational age acting

through her father, sought to challenge the exceptions for legal abortions in the

fetal-homicide laws of the United States and Oklahoma.1 The district court dismissed

for lack of Article III standing. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                  I. BACKGROUND

       A.     Legal Background

       In Roe v. Wade, 419 U.S. 113 (1973), and Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Supreme Court

concluded that before a fetus is viable, a pregnant woman has a due process right to

choose to have an abortion without undue interference of the state.

       After Roe and Casey were issued, both the United States and Oklahoma

enacted statutes that criminalize the killing of an unborn child. See 18 U.S.C.

§ 1841(a) (providing that conduct that violates listed federal criminal provisions “and

thereby causes the death of, or bodily injury . . . to, a child, who is in utero at the

time the conduct takes place, is guilty of a separate offense under this section”);



       1
        The parties have not informed the court of when or whether Doe was born;
the governments do not know her status, and Doe’s father has remained silent on the
matter. We do not consider the case moot, however, because due to the short period
of human gestation, cases involving abortion fall within the exception for matters
capable of repetition yet evading review. See Roe v. Wade, 410 U.S. 113, 125
(1973).
                                             2
Okla. Stat. tit. 21, § 691 (defining homicide as “the killing of one human being by

another” and defining “human being” to include an “unborn child”). In compliance

with Roe and Casey, both statutes explicitly except legal abortions, performed with

the consent of the mother, from the conduct that is criminalized. See 18 U.S.C.

§ 1841(c); Okla. Stat. tit. 21, § 691(C)(1). Doe seeks to challenge these statutory

exceptions (the Exceptions).

      B.     Doe’s Claims

      Doe alleges that the Exceptions: (1) violate her Fifth and Fourteenth

Amendment rights to equal protection based on differential treatment of born and

unborn human beings and among unborn human beings; (2) violate her Fifth and

Fourteenth Amendment rights to substantive due process, by depriving her of the

right to life; (3) violate her Fifth and Fourteenth Amendment rights to substantive

due process, by depriving her of the rights to liberty and bodily integrity; and

(4) violate 42 U.S.C. § 1983 by depriving her of the rights to equal protection, life,

bodily integrity, and to be free from discrimination.2 As relief, she requests: (1) a

permanent injunction prohibiting the defendants “from enforcing or preserving the

. . . Exceptions or taking other similar discriminatory action against [Doe] or other

minor children who are unborn”; (2) a declaratory judgment that the Exceptions “are

unconstitutional and unenforceable in all of their applications and on their face”;



      2
        The § 1983 claim relies on the same constitutional provisions as the other
claims. For convenience, we consider the claims as substantive due process and
equal protection claims, without separately discussing § 1983.
                                           3
(3) a declaratory judgment “that [Doe] and minor children who are unborn have the

right to a guarantee of equal protection, substantive due process, and life under the

Fourteenth and Fifth Amendments to the United States Constitution and shall not be

deprived of these rights”; and (4) any other relief the court deems proper. Aplt. App.

at 24.

         C.    Principles of Article III Standing

         “[T]he core component of standing is an essential and unchanging part of the

case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). Standing has three elements: (1) an injury in fact, (2) that

“fairly can be traced to the challenged action of the defendant, and has not resulted

from the independent action of some third party not before the court,” and (3) that is

likely to be redressed by a favorable decision. Ne. Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663-64 (1993) (internal

quotation marks omitted).

         “[W]e assess standing as of the time a suit is filed.” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 426 (2013). “Standing is not dispensed in gross. Rather, a

plaintiff must demonstrate standing for each claim he seeks to press and for each

form of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734

(2008) (citation, brackets, and internal quotation marks omitted). It is Doe’s burden

to establish her standing. See Lujan, 504 U.S. at 561.

         This case was decided at the Fed. R. Civ. P. 12 motion-to-dismiss stage. “[A]t

the pleading stage, the plaintiff must clearly allege facts demonstrating each element

                                             4
[of standing].” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (ellipsis and

internal quotation marks omitted). “[B]oth the trial and reviewing courts must accept

as true all material allegations of the complaint, and must construe the complaint in

favor of the complaining party.” United States v. Supreme Court of N.M., 839 F.3d

888, 899 (10th Cir. 2016) (internal quotation marks omitted).

      D.     The District Court’s Ruling

      The district court held that Doe failed to show any of the requirements of

standing. It first held that Doe had “not alleged any facts supporting the conclusion

that the threat of injury to [her] is both real and immediate, not conjectural or

hypothetical.” Aplt. App. at 95 (internal quotation marks omitted). Noting that the

complaint used the term “could”—that Doe could be subjected to an abortion—the

district court stated that “the Complaint is conspicuously silent as to the actual intent

of [Doe’s] mother to seek an abortion. Nowhere does the Complaint allege that

[Doe’s] mother is seeking to or is likely to terminate her pregnancy.” Id.

Accordingly, the court concluded that Doe’s alleged injuries were hypothetical and

dependent upon the choices made by her mother, an independent actor who was not

before the court.

      The district court further stated that even if it were to assume an injury in fact,

Doe could not establish traceability or redressability. It pointed out that the federal

exception itself does not authorize abortions. Instead, it is Supreme Court precedent

that protects a woman’s right to choose to abort a non-viable fetus. “[Doe’s] asserted

injury is not fairly traceable to [§ 1841(c)], and the injunctive and declaratory relief

                                            5
she seeks concerning [§ 1841(c)] would not prevent her mother from legally

obtaining an abortion under Roe and Casey.” Aplt. App. at 96. Further, Oklahoma

also is bound by Roe and Casey, and whatever its fetal-homicide provisions, they

would be unenforceable as to legal abortions.

       Doe had argued that her situation should be analogized to pre-enforcement

standing, whereby a plaintiff need not expose herself to liability by violating an

allegedly unconstitutional law before challenging it in court. The district court

rejected this theory, stating that “there is no threatened action by the state or federal

government in this case, and [Doe] is not exposed to liability under the challenged

statutory provisions. The reasoning behind pre-enforcement standing does not apply

to [Doe’s] claims.” Id. at 97.

                                   II. DISCUSSION

       Our review of a plaintiff’s Article III standing is de novo. See Benham v.

Ozark Materials River Rock, LLC, 885 F.3d 1267, 1272 (10th Cir.), cert. denied,

139 S. Ct. 174 (2018). Doe has failed to show an injury in fact or traceability for her

substantive due process claims, and she has failed to show traceability for her equal

protection claims. Accordingly, we affirm the district court’s dismissal for lack of

Article III standing without needing to consider redressability.

       A.     Injury in Fact

       To establish injury in fact, Doe must show she suffered “an invasion of a

legally protected interest” that is “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal

                                            6
quotation marks omitted). “For an injury to be ‘particularized,’ it must affect the

plaintiff in a personal and individual way.” Spokeo, Inc., 136 S. Ct. at 1548 (internal

quotation marks omitted). “A concrete injury must be de facto; that is, it must

actually exist. When we have used the adjective ‘concrete,’ we have meant to convey

the usual meaning of the term—real, and not abstract.” Id. (citation and internal

quotation marks omitted). And while “imminence” is a “somewhat elastic concept,”

“it cannot be stretched beyond its purpose, which is to ensure that the alleged injury

is not too speculative for Article III purposes—that the injury is certainly

impending.” Lujan, 504 U.S. at 564 n.2 (internal quotation marks omitted).

Allegations of possible future injury do not establish an injury in fact. See Clapper,

568 U.S. at 409; Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).

       “[S]tanding is affected by the nature of the relief sought.” Baca v. Colo. Dep’t

of State, 935 F.3d 887, 909 (10th Cir. 2019), petition for cert. filed (U.S. Oct. 16,

2019) (No. 19-518). Doe seeks injunctive relief rather than damages. “To obtain

prospective relief, a plaintiff must show a credible threat of future harm.” Id. at 910;

see also Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004) (stating that

when a plaintiff seeks prospective relief, he or she “must be suffering a continuing

injury or be under a real and immediate threat of being injured in the future”).

              1.     Substantive Due Process Claims

       Doe’s substantive due process claims allege that she is being deprived of her

rights to life, liberty, and bodily integrity. But as the district court pointed out, the

complaint does not establish that Doe’s mother ever sought an abortion or even had

                                             7
any intention of doing so. The complaint uses the terms “could” and “can” to

describe the harm to life and liberty that Doe allegedly faces. These allegations do

not establish a concrete, particularized injury that is actual, imminent, or certainly

impending. See Clapper, 568 U.S. at 410 (holding that allegations that the

government could intercept plaintiffs’ communications were speculative and

insufficient to establish injury in fact); 15 Moore’s Federal Practice,

§ 101.40[4][b][i] (Matthew Bender 3d Ed.) (recognizing that “[s]tanding may also be

denied on the ground that the injury is only hypothetical in the sense that the plaintiff

could have been injured, but was not”).

       Rather, this case appears more analogous to Diamond v. Charles, 476 U.S. 54,

66-67 (1986), in which the Supreme Court held that “Article III requires more than a

desire to vindicate value interests. It requires an injury in fact that distinguishes a

person with a direct stake in the outcome of a litigation—even though small—from a

person with a mere interest in the problem.” (citation and internal quotation marks

omitted). “Diamond’s claim of conscientious objection to abortion [did] not provide

a judicially cognizable interest.” Id. at 67.

       Doe argues that a “substantial risk” of injury is sufficient, see Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (“An allegation of future injury

may suffice if the threatened injury is certainly impending, or there is a substantial

risk that the harm will occur.” (internal quotation marks omitted)), and she asserts

that the fact that her mother could seek an abortion at any time establishes such a

“substantial risk” to her life and liberty. Like Doe’s other allegations, this argument

                                            8
requires hypothesizing about what Doe’s mother “could” do. But hypotheticals do

not establish that Doe is subject to any risk, much less a substantial risk, that her

mother will seek an abortion. Accordingly, this argument similarly falls short of

establishing an injury in fact.

       Doe also renews her analogy to pre-enforcement standing. The Supreme Court

has noted that “[o]ne recurring issue in [its] cases is determining when the threatened

enforcement of a law creates an Article III injury. When an individual is subject to

such a threat, an actual arrest, prosecution, or other enforcement action is not a

prerequisite to challenging the law.” Id.

       Instead, we have permitted pre-enforcement review under circumstances
       that render the threatened enforcement sufficiently imminent. Specifically,
       we have held that a plaintiff satisfies the injury-in-fact requirement where
       he alleges an intention to engage in a course of conduct arguably affected
       with a constitutional interest, but proscribed by a statute, and there exists a
       credible threat of prosecution thereunder.

Id. at 159 (internal quotation marks omitted). “[A] ‘credible’ threat of prosecution

[is] one that arises from an objectively justified fear of real consequences.” Bronson

v. Swensen, 500 F.3d 1099, 1107 (10th Cir. 2007) (internal quotation marks omitted).

       As Doe argues, pre-enforcement standing recognizes that a plaintiff should not

have to incur a grave injury before seeking vindication of a legal interpretation.

See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 134 (2007) (“The rule that a

plaintiff must destroy a large building, bet the farm, or (as here) risk treble damages

and the loss of 80 percent of its business before seeking a declaration of its actively

contested legal rights finds no support in Article III.”). But Doe is not being faced


                                              9
with a choice or being asked to “bet the farm” on anything; she simply is trying to

assert the Exceptions are unconstitutional. There is no reason why the traditional

requirements for showing injury in fact are not adequate for these circumstances.

Moreover, for the same reason she fails to show injury in fact as to her due process

claims, Doe fails to satisfy the “credible threat” aspect of pre-enforcement standing.

             2.     Equal Protection Claims

      In contrast, for equal protection claims, the injury is the denial of equal

treatment. See Ne. Fla. Chapter, 508 U.S. at 666; Citizen Ctr. v. Gessler, 770 F.3d

900, 913 (10th Cir. 2014); Petrella v. Brownback, 697 F.3d 1285, 1294 (10th Cir.

2012); Am. Civil Liberties Union of N.M. v. Santillanes, 546 F.3d 1313, 1319 (10th

Cir. 2008). In light of this precedent, Doe’s averments that she is being

discriminated against and denied the same protections as born human beings and

other unborn human beings sufficiently allege an injury in fact.

      B.     Traceability

      “To satisfy the traceability requirement, the defendant’s conduct must have

caused the injury.” Benham, 885 F.3d at 1273 (citing Lujan, 504 U.S. at 560). The

plaintiff must show that “the injury fairly can be traced to the challenged action of

the defendant, and has not resulted from the independent action of some third party

not before the court.” Ne. Fla. Chapter, 508 U.S. at 663 (internal quotation marks

omitted). “Although the traceability of a plaintiff’s harm to the defendant’s actions

need not rise to the level of proximate causation, Article III does require proof of a

substantial likelihood that the defendant’s conduct caused plaintiff’s injury in fact.”

                                           10
Habecker v. Town of Estes Park, 518 F.3d 1217, 1225 (10th Cir. 2008) (internal

quotation marks omitted).

              1.     Substantive Due Process Claims

       While Doe ostensibly challenges the Exceptions as a violation of her

substantive due process rights, it is inescapable that any injuries to life, liberty, or

bodily integrity she may suffer flow not from the Exceptions, but from Roe and

Casey. Accordingly, Doe has failed to establish that her alleged substantive due

process injuries are traceable to the Exceptions.

              2.     Equal Protection Claims

       Finally, Doe argues that the statutes themselves discriminate and deny equal

treatment. Again, however, it is apparent that Doe’s real quarrel is with Roe and

Casey. If any equal protection injury exists, it does not come from the United States

and Oklahoma enacting the Exceptions, but rather from Roe and Casey. Doe

therefore has failed to establish any injury is sufficiently traceable to the defendants

to provide standing to challenge the Exceptions.

                                     CONCLUSION

       The district court’s judgment is affirmed.


                                              Entered for the Court


                                              Timothy M. Tymkovich
                                              Chief Judge




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