23-686
Doe v. Hochul
United States Court of Appeals
For the Second Circuit
August Term 2023
Argued: March 1, 2024
Decided: June 3, 2025
No. 23-686
MARY DOE,
Plaintiff-Appellant,
JANE SMITH, JILL PARK, ANN JONES, DR. AMY MOE,
Plaintiffs,
v.
KATHY HOCHUL, as Governor of the State of New York
in her official capacity, LETITIA JAMES, as Attorney
General of the State of New York in her official capacity,
STEPHANIE SCHULMAN, Deputy Director, Division of
Hospitals and Diagnostic and Treatment Centers, New
York State Department of Health in her official capacity,
ARTHUR S. HENGERER, M.D., Chair, New York State
Department of Health Office of Professional Medical
Conduct in his official capacity, HOWARD A. ZUCKER,
M.D., J.D., SARAH BENSON, Deputy Commissioner, New
York State Education Department’s Office of the
Professions in her official capacity, DONNA FRESCATORE,
New York Medicaid Director in her official capacity,
SHEILA J. POOLE, Commissioner of the New York State
Office of Children and Family Services (OCFS) in her
official capacity,
Defendants-Appellees. *
Appeal from the United States District Court
for the Northern District of New York
No. 21-cv-35, Lawrence E. Kahn, Judge.
Before: LIVINGSTON, Chief Judge, SULLIVAN, and MENASHI, Circuit
Judges.
Mary Doe, a social worker proceeding by pseudonym, appeals from a
judgment dismissing her constitutional challenges to New York’s Reproductive
Health Act (“RHA”) for lack of standing; she also appeals the district court’s denial
of her post-judgment motions to amend the complaint. Doe raises two challenges
on appeal. First, she argues that the district court erred in denying her motion to
be appointed “next friend” to a class of viable fetuses in order to bring a
constitutional challenge to the RHA on their behalf. According to Doe, the district
court committed legal error in requiring her to demonstrate a “significant
relationship” to the viable fetuses in the class, which Doe maintains is not a
prerequisite to next friend representation under Federal Rule of Civil Procedure
17(c). Second, Doe argues that the district court erred in denying her post-judgment motion to file an amended complaint, which the district court found
would be futile for lack of standing. Doe disputes the district court’s ruling on
standing, arguing that the proposed amended complaint asserted claims on behalf
of a viable fetus, “Baby Nicholas,” who had been cognizably harmed by the RHA.
With respect to Doe’s motion to be appointed next friend, we agree with
Doe that the district court erred in requiring a “significant relationship” for next
friend appointments. Nevertheless, we affirm the dismissal of Doe’s claims on
another ground – namely, that she failed to identify or otherwise describe any class
member in the viable fetus class that she sought to represent. Without describing
* The Clerk of Court is respectfully directed to amend the case caption.
2
at least one class member and the injury he faces, Doe necessarily cannot meet her
burden of plausibly establishing a live case or controversy under Article III. We
likewise affirm the district court’s denial of Doe’s motion to amend, which turned
on the conclusion that Baby Nicholas lacks standing to challenge the RHA. Even
if the RHA exposed Baby Nicholas to a generalized risk of abortion or third-party
violence, he will have standing only if he plausibly faces an injury that is imminent
and traceable to the RHA. Here, the only potential near-term risk alleged in the
proposed amended complaint – that Baby Nicholas’s mother’s former partner will
attack her and harm him – is not traceable to the RHA, since nothing plausibly
indicates that the RHA will cause the former partner to engage in such behavior.
Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED.
TERESA S. COLLETT, Eagan, MN (Christen E.
Civiletto, East Amherst, NY, on the brief), for
Plaintiff-Appellant.
LAURA ETLINGER, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General,
Galen Leigh Sherwin, Special Counsel for
Reproductive Justice, Jeffrey W. Lang, Deputy
Solicitor General, on the brief), for Letitia James,
Attorney General of the State of New York,
Albany, NY, for Defendants-Appellees.
Sarah Wheeler, Adjunct Professor of Clinical
Law, New York University School of Law, New
York, NY, for Amicus Curiae New York University
School of Law Reproductive Justice Clinic in
support of Defendants-Appellees.
Dana Sussman, Deputy Executive Director,
Pregnancy Justice, New York, NY, for Amicus
Curiae Pregnancy Justice in support of Defendants-Appellees.
3
RICHARD J. SULLIVAN, Circuit Judge:
Six years ago, New York enacted the Reproductive Health Act (“RHA”),
which decriminalized all abortions and eliminated the criminal offense of fetal
homicide. In response to that legislation, a group of plaintiffs brought this lawsuit,
alleging that the RHA violated the constitutional rights of various expectant
mothers, doctors, social workers, and fetuses. After the district court dismissed
those claims for either lack of standing or failure to state a claim, the plaintiffs
sought to vacate that judgment so they could file an amended complaint. While
that post-judgment motion was pending, the Supreme Court decided Dobbs v.
Jackson Women’s Health Organization, 597 U.S. 215 (2022), which declared that the
federal constitution does not protect the right to abortion. The plaintiffs then filed
another round of post-judgment motions, seeking vacatur in light of Dobbs and
repeating their request for leave to amend. The district court denied those motions
as well, concluding that neither Dobbs nor their proposed amended complaint
would remedy the defects in the original complaint.
One of the plaintiffs, a social worker using the pseudonym Mary Doe, filed
this appeal challenging two of the district court’s rulings. First, she argues that the
district court erred in denying her motion to be appointed “next friend” to a class
4
of viable fetuses in order to bring a constitutional challenge to the RHA on their
behalf. According to Doe, the district court committed legal error in requiring her
to demonstrate a “significant relationship” to the viable fetuses in the class, which
Doe maintains is not a prerequisite to next friend representation under Federal
Rule of Civil Procedure 17(c). Second, Doe argues that the district court erred in
denying her post-judgment motions on the grounds that her proposed amended
complaint would fail for lack of standing. That was error, Doe asserts, because her
proposed amended complaint identified a viable fetus, “Baby Nicholas,” who has
standing to challenge the RHA.
Although we agree with Doe that the district court erred in requiring a
“significant relationship” for next friend appointments, we affirm the dismissal of
Doe’s claims on another ground: that she failed to identify or otherwise describe
any class member in the viable fetus class that she sought to represent. Without
describing at least one class member and the injury he faces, Doe necessarily
cannot meet her burden of plausibly establishing a live case or controversy under
Article III.
With respect to Doe’s motion to amend, we likewise affirm the district
court’s conclusion that Baby Nicholas lacks standing to challenge the RHA. Even
5
if the RHA exposed Baby Nicholas to a generalized risk of abortion or third-party
violence, he will have standing only if he plausibly faces an injury that is imminent
and traceable to the RHA. But the only near-term risk alleged in the proposed
amended complaint – that Baby Nicholas’s mother’s former partner will attack her
and harm him – is not traceable to the RHA, since nothing plausibly indicates that
the RHA will cause the former partner to engage in such behavior. Accordingly,
we AFFIRM the judgment of the district court.
BACKGROUND
I. Facts
In 2019, the New York legislature overhauled the state’s abortion laws by
enacting the Reproductive Health Act (“RHA”), 2019 N.Y. Sess. Laws Ch. 1, §§ 1–
14 (S. 240) (McKinney). This legislation made two relevant changes. First, the
RHA fully decriminalized abortion. Prior to the RHA’s passage, it was a crime to
perform an abortion – on another or to oneself – after twenty-four weeks of
gestation unless doing so was necessary to save the life of the mother. The RHA
removed those offenses from New York’s penal laws. See RHA §§ 5, 7-a to 10. In
their place, the RHA added Article 25-A of the Public Health Law, which permits
licensed health care practitioners to perform abortions within twenty-four weeks
6
of gestation or after twenty-four weeks if the fetus is not viable or the mother’s life
or health is at risk. See id. § 2 (codified at N.Y. Pub. Health Law § 2599-bb (2024)).
Second, the RHA eliminated the crime of fetal homicide from the state’s
criminal laws. See id. § 6 (amending
N.Y. Penal Law § 125.00 to remove the
provisions covering fetal homicide). Under the pre-RHA regime, the offense of
homicide included causing the death of a fetus after twenty-four weeks of
gestation. See
N.Y. Penal Law § 125.00 (2018). The RHA removed that provision
from the homicide statute, which means it is no longer homicide to cause the death
of a fetus of any gestational age.
II. Procedural History
A. The Original Complaint
In 2021, a group of plaintiffs filed suit challenging the RHA, alleging that it
violated the constitutional rights of various expectant mothers, doctors, social
workers, and fetuses. Most relevant to this appeal, a social worker using the
pseudonym Mary Doe sought to challenge the RHA’s decriminalization of
abortion and repeal of fetal homicide on behalf of a class of viable fetuses in New
York (the “Viable Fetus Class”). According to Doe, these provisions of the RHA
violated the fetuses’ rights to life and equal protection under the Fourteenth
Amendment, as well as their rights to legal redress under the First Amendment.
7
Doe sought both damages and equitable relief on her claims, including a
declaration that the RHA is unconstitutional and an injunction barring Defendants
– various state officials in New York – from enforcing its provisions.
Because Doe was not herself among the class of fetuses, she also moved to
be appointed as “next friend” to the class under Federal Rule of Civil Procedure
17(c)(2). Although Doe alleged that she was a social worker who had worked with
pregnant mothers for over two decades, she did not identify or describe any
specific fetus in the putative class, and did not name or otherwise identify a class
representative to serve as the named plaintiff for the class under Federal Rule of
Civil Procedure 23.
Defendants opposed Doe’s appointment as next friend and moved to
dismiss the complaint. With respect to the former, Defendants argued that Doe
was ineligible to serve as next friend because she lacked a significant relationship
with the fetus class and because Rule 17 does not allow next friends to represent
fetuses. Several months later, in August 2021, the district court denied Doe’s next
friend motion. Although it did not take a position on whether Rule 17 permitted
representation of a fetus, the district court agreed with Defendants that a next
friend must demonstrate a “significant relationship” with the minor or
8
incompetent party she seeks to represent. App’x at 92. Because Doe had not
shown such a relationship with the fetuses in the class, the district court declined
to appoint her as a next friend. Shortly thereafter, the district court also granted
Defendants’ motion to dismiss Doe’s claims for lack of standing, concluding that
she could not have standing because her next friend appointment had been
denied. 1 The district court entered judgment for Defendants on October 26, 2021.
B. The Post-Dobbs Complaint
Less than a month later, the plaintiffs filed a post-judgment motion seeking
to reopen the judgment and file an amended complaint. This time, the proposed
amended complaint identified a specific fetus – Baby Nicholas – as the class
representative for the Viable Fetus Class and proposed his natural mother and
grandmother, Rachel Brown-Lee and Miriam Brown (both pseudonyms), as next
friends.
While that motion was pending, the Supreme Court decided Dobbs, which
held that there is no federal constitutional right to abortion. The plaintiffs then
requested permission to revise their post-judgment motion and to update their
1Although not relevant here, the district court also dismissed the claims brought by the other
plaintiffs against the RHA, either for lack of standing or for failure to state a claim. These other
plaintiffs do not appeal the dismissal of those claims.
9
proposed amended complaint in light of Dobbs. After that leave was granted, the
plaintiffs filed a second round of post-judgment motions under Federal Rules of
Civil Procedure 59(e), 60(b)(1), and 60(b)(6), accompanied by a post-Dobbs
proposed amended complaint (the “post-Dobbs complaint”). As relevant here,
these motions argued that the judgment should be set aside because (1) Dobbs was
an intervening change in controlling law or otherwise extraordinary circumstance
justifying post-judgment relief, and (2) the plaintiffs had not received an
opportunity to amend their original complaint under Federal Rule of Civil
Procedure 15. Like the previously proposed amended complaint, the post-Dobbs
complaint identified Baby Nicholas as class representative for the Viable Fetus
Class and proposed Brown-Lee and Brown as his next friends. It also alleged that
Brown-Lee’s former partner had violently assaulted her when she was pregnant
in 2017 and 2018 and had verbally and physically abused her as recently as 2019.
According to Brown-Lee, she obtained an order of protection against her former
partner that runs through 2027, but he violated that order and continued “to act in
a threatening and emotionally abusive way towards [her].” App’x at 118.
The district court denied the post-judgment motions in March 2023. The
district court explained that Dobbs did not warrant post-judgment relief, since the
10
Viable Fetus Class’s claims were dismissed for lack of standing, which was not
impacted by Dobbs. The district court also concluded that amendment would be
futile, since the post-Dobbs complaint did not plausibly establish that Baby
Nicholas had standing.
Doe then filed this appeal, challenging two of the district court’s decisions:
(1) the denial of Doe’s motion to be appointed next friend, and (2) the denial of her
post-judgment motions to vacate the judgment and allow filing of the post-Dobbs
complaint.
DISCUSSION
We review a district court’s denial of a motion to serve as next friend under
Rule 17(c) for abuse of discretion. See Ferrelli v. River Manor Health Ctr., 323 F.3d
196, 200 (2d Cir. 2003). “The existence of standing is a question of law that we
review de novo.” Shain v. Ellison,
356 F.3d 211, 214 (2d Cir. 2004). Because we “have
an independent obligation” to confirm our jurisdiction, “we must always address
questions of standing, even when neither the parties nor the court below have
considered the issue.” Hu v. City of New York,
927 F.3d 81, 89 (2d Cir. 2019) (internal
quotation marks omitted). We also review de novo the denial of a post-judgment
11
motion for leave to replead on the ground that amendment would be futile. See
Metzler Inv. GmbH v. Chipotle Mexican Grill, Inc., 970 F.3d 133, 145 (2d Cir. 2020).
I. Dismissal of Doe’s Claims for Lack of Standing
We first take up the district court’s dismissal of Doe’s claims challenging the
constitutionality of the RHA, which she sought to bring as next friend to the Viable
Fetus Class. According to the district court, Doe was categorically ineligible to
serve as next friend under Rule 17(c) because she lacked a “significant
relationship” to the Viable Fetus Class. App’x at 92. We disagree with that
conclusion, but nevertheless affirm the dismissal of Doe’s claims because she failed
to provide an adequate description of any fetus in the class and therefore lacks
Article III standing to bring their claims in a representative capacity.
A. Next Friend Appointment
Article III imposes several limits on our jurisdiction. Chief among them is
the requirement that the plaintiff “have standing to sue.” Raines v. Byrd, 521 U.S.
811, 818 (1997). Typically, a plaintiff will have standing only to “assert his or her
own legal rights and interests” and may not “rest a claim to relief on the legal
rights or interests” of others. Powers v. Ohio,
499 U.S. 400, 410 (1991). This
limitation ensures that there is a live case or controversy between two parties that
each have a personal stake in the dispute. In this way, Article III prevents
12
“concerned bystanders” from abusing the federal courts as a forum to air their
“generalized grievances” against state actions. Hollingsworth v. Perry, 570 U.S. 693,
707, 715 (2013) (internal quotation marks omitted).
Even so, we have long acknowledged several narrow exceptions under
which a plaintiff may invoke the injuries of a third party to establish standing.
Most relevant here, courts have exercised the authority to appoint a “next friend”
who may bring claims on behalf of a minor or other incompetent person. See
Whitmore v. Arkansas, 495 U.S. 149, 161–62 (1990). Because these parties lack the
legal capacity to sue, the only way to vindicate their rights is to permit another to
prosecute their claims in a representative capacity. Normally, that duty would fall
on the minor or incompetent party’s legal guardian. See, e.g., McCormick ex rel.
McCormick v. Sch. Dist. of Mamaroneck,
370 F.3d 275, 279 (2d Cir. 2004) (parents
bringing Title IX challenge to school district’s athletic policy on behalf of minor
daughters). But there may be instances where the legal guardian “is unable,
unwilling . . . [,] or has interests which conflict with those of the [minor] or
incompetent.” Ad Hoc Comm. of Concerned Tchrs. v. Greenburgh # 11 Union Free Sch.
Dist.,
873 F.2d 25, 29 (2d Cir. 1989) (“Ad Hoc Comm.”). In those scenarios, Rule 17(c)
13
authorizes district courts to appoint a “next friend” to bring the minor or
incompetent party’s claims in court:
The following representatives may sue or defend on
behalf of a minor or an incompetent person: (A) a general
guardian; (B) a committee; (C) a conservator; or (D) a like
fiduciary. . . . A minor or an incompetent person who
does not have a duly appointed representative may sue
by a next friend or by a guardian ad litem.
Fed. R. Civ. P. 17(c).
This does not mean, of course, that just anyone may assume the mantle of
next friend. As the Supreme Court has explained, there are “at least two firmly
rooted prerequisites for ‘next friend’ standing.” Whitmore, 495 U.S. at 163. “First,
a ‘next friend’ must provide an adequate explanation – such as inaccessibility,
mental incompetence, or other disability – why the real party in interest cannot
appear on his own behalf to prosecute the action.”
Id. “Second, the ‘next friend’
must be truly dedicated to the best interests of the person on whose behalf he seeks
to litigate.”
Id.
Here, the district court denied Doe’s next friend application based on a third
requirement: that a next friend must have a “significant relationship” to the real
party in interest. App’x at 92. The district court observed that although Doe
alleged that she was otherwise qualified to serve as next friend to the Viable Fetus
14
Class, she did not assert that she had a relationship with any of the class members.
Id. at 30–32 (alleging that the class members are “adverse” to their legal guardians
who might wish to obtain abortions and that Doe is qualified and able to represent
their best interests). 2 On appeal, Doe challenges the denial of her next friend
motion, arguing that the district court made a legal error in requiring a significant
relationship before a next friend may be appointed under Rule 17(c).
We agree with Doe. Although a significant relationship with the real party
in interest is relevant to the appointment of a next friend, it is neither required nor
dispositive. For starters, the text of Rule 17(c) does not demand any sort of
“relationship,” let alone a significant one. It provides simply that “[a] minor or an
incompetent person who does not have a duly appointed representative may sue
by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2). And as we
have observed, “[t]he term ‘next friend’ is broad enough to include any[]one who
has an interest in the welfare of an infant who may have a grievance or a cause of
action.” Ad Hoc Comm., 873 F.2d at 31 (alterations accepted and internal quotation
2 The district court did not scrutinize whether these allegations met the other requirements of next
friend standing under Rule 17(c) – including that the legal guardian be conflicted and that the
next friend be “truly dedicated” to the incompetent person’s interests – and we take no position
on those issues here. See Ad Hoc Comm., 873 F.2d at 29; Whitmore, 495 U.S. at 163.
15
marks omitted). Put simply, there is no textual hook for the “significant
relationship” requirement that the district court imposed here.
Our own precedent, moreover, establishes that we do not always require a
particularly close relationship between the next friend and the real party in
interest. In one of our (admittedly few) cases on the issue, we held that a
committee of teachers could sue as next friend to a group of students who wished
to challenge a school’s hiring practices – even though the teachers lacked any
familial or longstanding relationship to the students. See id. at 29. As we
explained, the committee was eligible to serve as next friend because some
teachers were “intimately involved with the [c]hildren’s education,” the
committee “instituted th[e] suit in good faith,” and no other adults were better
“position[ed]” to bring the students’ claims. Id. at 30; see also id. at 27 (explaining
that the students were minors who were under New York City’s custody and/or
guardianship, and that it was unlikely that the City would bring a claim
challenging its own school policies on their behalf). Although we did not say so
explicitly, our reasoning clearly embodied a case-by-case rule in which a
significant relationship is not categorically required. See id. at 31 (describing how
“the facts and circumstances of each case will vary”).
16
Other circuits have settled on a similarly flexible standard. The D.C. Circuit
has explained that while there “ordinarily [must] be a significant relationship
between the proposed next friend and minor, . . . that requirement may not rigidly
apply when a minor has no significant relationships.” Muthana v. Pompeo, 985 F.3d
893, 902 (D.C. Cir. 2021). The Ninth Circuit has likewise adopted an “elastic” rule
in which a significant relationship is not required when the real parties lack any
“relative” or “friend” that can “act on their behalf.” Coal. of Clergy, Laws., &
Professors v. Bush,
310 F.3d 1153, 1162 (9th Cir. 2002) (stating that another person
with “some relationship” could serve as next friend in such a case, since this
relationship would at least be “‘significant’ in comparison to the [real party’s]
other relationships”). The Fourth Circuit, in ostensibly adopting a significant-
relationship requirement, explicitly declined to address the situation “of someone
who possesses no significant relationships at all.” Hamdi v. Rumsfeld,
294 F.3d 598,
604 n.3 (4th Cir. 2002). And in a notable First Circuit case involving a challenge to
a state foster care system, that court held that a doctor could serve as next friend
to a group of foster children whom he had never met and whose “family court and
medical files” he had never reviewed. Sam M. ex rel. Elliot v. Carcieri,
608 F.3d 77,
93 (1st Cir. 2010). Stressing that this deficiency did not “automatically
17
disqualif[y]” the doctor from serving as next friend, the court concluded that his
appointment was appropriate because there was no evidence that he was
“pursuing the present suit for reasons other than a genuine concern for the
children’s well-being.” Id.
We see no reason to depart from the flexible rule – that a significant
relationship is not always required – announced in these well-reasoned decisions.
Indeed, the Supreme Court stopped short of adopting a “significant relationship”
requirement in Whitmore. See Whitmore, 495 U.S. at 163–64 (noting it has been
“suggested” by lower courts “that a ‘next friend’ must have some significant
relationship with the real party in interest,” but declining to identify this as a
“firmly rooted prerequisite[]”). A contrary rule could preclude some real parties
in interest from bringing suit altogether, simply because they lack a relationship
significant enough to justify appointment of a representative.
We therefore hold that, in certain cases, a next friend who lacks a significant
relationship to the real party in interest may be appointed under Rule 17(c). Rather
than apply a rigid rule, district courts should examine the purported relationship
between the next friend and the real party in interest to determine whether the
next friend appears “truly dedicated to the best interests of the person on whose
18
behalf he seeks to litigate.” Id. at 163. While there “ordinarily” should be a
significant relationship, that requirement is relaxed when the real party lacks any
“close relative” or friend that can act on his or her behalf. Muthana, 985 F.3d at
902. In those cases, another person can assume the mantle of next friend, provided
the person can “show some relationship or other evidence that would suggest the
next friend is truly dedicated to the interests of the real party.” Lonchar v. Zant,
978 F.2d 637, 641 (11th Cir. 1992). At the same time, if the proposed next friend
has little or no relationship with the real party in interest, her appointment as next
friend should be viewed skeptically – as the lack of any relationship may belie the
next friend’s claim that she is advancing the real party’s best interests. See Coal. of
Clergy, Laws. & Professors, 310 F.3d at 1162. Although this is a flexible standard, it
is consistent with the discretionary nature of Rule 17(c), which leaves the “ultimate
decision as to whether or not to appoint [a next friend] . . . with the sound
discretion of the district court.” Sam M. ex rel. Elliott, 608 F.3d at 85 (internal
quotation marks omitted).
Applying this standard here, we are persuaded that the district court abused
its discretion by declining to appoint Doe as next friend on the legal ground that
Rule 17(c) requires a “significant relationship.” App’x at 92. Although the district
19
court had discretion to decline Doe’s appointment, it was an error of law – and
thus an abuse of discretion – to treat a “significant relationship” as a mandatory
requirement of Rule 17(c). See Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 168
(2d Cir. 2003) (“Where a district court exercises its discretion premised on the
misapplication of a legal principle, the court by definition abuses its discretion and
makes an error of law.”). 3
Our normal practice would be to remand for the district court to revisit
whether to appoint Doe as next friend under Rule 17(c) for those fetuses who face
abortion. We do not do so here, however, because we conclude that Doe’s claims
fail for a different reason: she lacks Article III standing because she fails to identify
or otherwise describe any class member in the Viable Fetus Class who has a live
case or controversy.
B. Article III Standing
Even if Doe were appointed next friend under Rule 17(c), it would not
automatically entitle her to Article III standing. Neither Congress statutorily nor
3The district court did not reach Defendants’ alternative argument that Rule 17(c) does not permit
a next friend to be appointed on behalf of a fetus. See App’x at 92. We therefore decline to
consider that issue here. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001) (“In
general, a federal appellate court does not consider an issue not passed upon below.” (internal
quotation marks omitted)).
20
the courts through the rulemaking process may “grant[] the right to sue to a
plaintiff who would not otherwise have standing.” Raines v. Byrd, 521 U.S. 811,
820 n.3 (1997); see also Lunney v. United States,
319 F.3d 550, 556 (2d Cir. 2003) (“Rule
17[] cannot be construed to extend subject matter jurisdiction.”). And because we
have an “independent obligation” to confirm our jurisdiction, we must consider
the next inevitable question: whether Doe would have Article III standing even if
she were appointed next friend under Rule 17(c). Summers v. Earth Island Inst.,
555
U.S. 488, 499 (2009).
When a plaintiff brings her own claims, she must establish three elements
to demonstrate Article III standing: “(i) that she has suffered or likely will suffer
an injury in fact, (ii) that the injury likely was caused or will be caused by the
defendant, and (iii) that the injury likely would be redressed by the requested
judicial relief.” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 380
(2024). As alluded to above, these requirements shift in cases where the plaintiff
invokes a theory of “representative standing” to bring claims on behalf of another
person. See Bria Health Servs., LLC v. Eagleson,
950 F.3d 378, 384–85 (7th Cir. 2020)
(explaining that “next friend” and organizational standing are forms of
representative standing). In these cases, the representative plaintiff satisfies
21
Article III by demonstrating that the other person – the real party in interest –
would “have standing to sue in [his] own right.” Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977). Thus, an organization suing on behalf of its
members must “make specific allegations establishing that at least one identified
member had suffered or would suffer [a] harm” that meets all three elements of
Article III standing. Summers,
555 U.S. at 498. So too must a party seeking to sue
as next friend of a minor demonstrate that the minor meets the three “irreducible”
requirements of Article III. McCormick ex rel. McCormick, 370 F.3d at 284 (quoting
Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)).
Doe has not met these requirements. She does not identify or describe – by
name, basic details, or otherwise – any member of the Viable Fetus Class who
allegedly meets the injury-in-fact, traceability, and redressability requirements of
Article III. Instead, she generally asserts claims on behalf of all viable fetuses in
the state of New York who may be at risk of harm due to the RHA’s elimination of
criminal penalties for abortion and fetal homicide. These sweeping allegations
cannot satisfy Doe’s burden of establishing standing. See Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016). In every case – representative standing or otherwise – the
complaint must “clearly allege facts demonstrating” that there is a real party in
22
interest who has suffered (or will suffer) an injury that is actual or imminent,
traceable to the defendant, and redressable by the court. Id. (alteration accepted
and internal quotation marks omitted). This means that representative plaintiffs
must “identify,” with “specific allegations,” who the real parties are and how they
are at risk of the “requisite harm.” Summers, 555 U.S. at 498–99. If they do not,
then the representative plaintiff “necessarily cannot allege the sort of . . . actual or
imminent,” traceable, and redressable injury required by Article III. Fac., Alumni,
& Students Opposed to Racial Preferences v. N.Y. Univ.,
11 F.4th 68, 79 (2d Cir. 2021)
(Menashi, J., concurring) (“FASORP”).
We held as much in one of our recent representative standing cases in which
an organization tried to invoke the standing of its members without describing
those members and how they were harmed. In FASORP, a legal organization
asserted that several policies at the New York University School of Law (“NYU
Law”) were unlawful racial and sex-based preferences. See id. at 71–72 (majority
opinion). Among other theories, FASORP alleged that NYU Law’s faculty
discriminated against white males in hiring, and that its flagship law journal – the
NYU Law Review – discriminated against the same group in deciding which
articles to publish. See
id. at 73. Yet in its pleadings, FASORP failed to identify or
23
describe a single professor among its ranks, let alone any details about whether
that member was prepared to apply to the school’s faculty or submit an article to
its journal. See id. at 76.
We found that omission to be fatal. Even if FASORP was not required to
“name names,” Article III required it to allege some details about who the allegedly
injured scholars were and how they were at risk of harm, such as by offering a
“description of concrete plans to apply for employment[] [or] submit an article,”
id. at 76–77 (internal quotation marks omitted), or by showing that there were
“members who are ‘able and ready’ to submit articles or to seek faculty positions,”
id. at 79 (Menashi, J., concurring). Because FASORP did not identify or describe
its members and the injuries they allegedly faced, “it necessarily [could not] allege
the sort of ‘concrete plans’ necessary to ‘support a finding of . . . actual or imminent
injury.’”
Id. (quoting Summers,
555 U.S. at 496).
We do not see how the outcome would be any different here. Like FASORP,
Doe seeks to invoke a third-party injury – here, an injury to a fetus – to establish
Article III standing at the pleading stage. Like FASORP, she alleges in broad
strokes that such a third party exists and is at risk of harm. And like FASORP, she
fails to provide any description of who that third party is and the harm he faces,
24
such as the fetus’s gestational age, who the pregnant mother is, the reasons why
she is contemplating an abortion, whether she has visited or made an appointment
with an abortion provider, how soon that appointment is, and so on. Indeed, the
only potential difference is that FASORP was relying on one type of representative
standing – organizational standing – while Doe is relying on another. But that is
a distinction without a difference, since the same “irreducible” requirements of
Article III apply to next friends and organizational plaintiffs alike. McCormick ex
rel. McCormick, 370 F.3d at 284 (quoting Lujan, 504 U.S. at 560). Thus, like FASORP,
Doe’s failure to identify or describe any class member is fatal, as she “necessarily
cannot” meet her burden of plausibly establishing that there is a real party in
interest with an Article III injury. FASORP, 11 F.4th at 79 (Menashi, J., concurring).
To be sure, there is no doubt a possibility – indeed a near certainty – that
there are viable fetuses in New York who may soon be threatened by abortion or
other fetal harm. But the Supreme Court has emphatically barred organizations
from relying on statistics or probabilities to demonstrate the standing of their
members, explaining that such theories “would make a mockery of our prior
cases” that have required representative plaintiffs “to make specific allegations
establishing that at least one identified member had suffered or would suffer
25
harm.” Summers, 555 U.S. at 498. As Justice Scalia emphasized, standing “is not
an ingenious academic exercise in the conceivable but requires a factual showing
of perceptible harm.”
Id. at 499 (alterations accepted and internal quotation marks
omitted). Thus, it is not enough for Doe to speculate that, at some point in the
future, an unidentified woman may seek to obtain an abortion of an unidentified
fetus from an unidentified abortion provider. She must at a minimum provide
basic identifying information about that fetus and provide “an adequate
description of his circumstances to ensure he has a concrete interest in a live
dispute.” In re: 2016 Primary Election,
836 F.3d 584, 587–88 (6th Cir. 2016).
Permitting plaintiff-less complaints like Doe’s would invite the very sort of
“advisory opinions” that Article III seeks to safeguard against. Id. at 588. Any
number of “concerned bystanders” could exploit next friend standing to challenge
state or national laws they disagree with, even though they lack a personal stake
in the dispute. Hollingsworth,
570 U.S. at 707 (internal quotation marks omitted).
Article III does not permit such circumvention. In order to bring a claim on behalf
of another, a representative plaintiff must provide an “adequate description” of
the real party’s circumstances so that we can ensure he has suffered or faces an
injury that is actual or imminent, traceable to a specific defendant, and redressable
26
by the court. In re: 2016 Primary Election, 836 F.3d at 588; see also FASORP, 11 F.4th
at 76. Were the rule anything else, we would all but place standing “in the hands
of concerned bystanders, who will use it simply as a vehicle for the vindication of
value interests.” Hollingsworth,
570 U.S. at 707 (internal quotation marks omitted).
To be clear, requiring litigants to identify the real party in interest will not
always be an insurmountable hurdle to standing. If there is a viable fetus who
faces an Article III injury from the RHA, then someone – an expectant father, other
relative, or perhaps even a non-relative like Doe – may theoretically file a
complaint as next friend that describes the viable fetus with sufficient specificity.
Of course, there may be other jurisdictional barriers to bringing that claim, such as
imminence, traceability, and redressability, and there remains the question of
whether, as Defendants argue, fetuses “lack constitutional personhood”
altogether. See Defs. Br. at 25. But we do not and need not pass on those issues
today. See Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431
(2007) (explaining that courts have “leeway to choose among threshold grounds”
for declining to exercise jurisdiction (internal quotation marks omitted)). We
merely hold that – as with organizational plaintiffs – a next friend must “make
specific allegations establishing that at least one identified member had suffered
27
or would suffer [a] harm” that meets all three elements of Article III standing.
Summers, 555 U.S. at 498. Because Doe failed to do so here, her claims on behalf of
the Viable Fetus Class fail for lack of standing.
II. Denial of Post-Judgment Motions
Doe also appeals the district court’s denial of her motions under Rules 59(e)
and 60(b), which sought to vacate the judgment so that she could file an amended
complaint in light of Dobbs. 4 The district court denied those motions as futile
because, like the original complaint, the post-Dobbs complaint that Doe attached
to her motions failed for lack of standing. Because this decision rested on a
question of law – namely, futility – we review de novo the district court’s ruling on
standing. See Metzler Inv. GmbH, 970 F.3d at 145.
As relevant here, the post-Dobbs complaint brings similar claims to the
original complaint, alleging that the RHA – by expanding abortion access and
decriminalizing fetal homicide – violates fetal rights to life, equal protection, and
legal redress. Notably, the post-Dobbs complaint has a key addition: it identifies
4 Doe also argues that the district court should have set aside the judgment under Rules 59(e) and
60(b) because Dobbs constituted a change in controlling law. But as explained in this section, her
claims – including in the post-Dobbs complaint – fail for lack of standing, a legal determination
that was unaffected by Dobbs. Because Dobbs does not alter the outcome, it is not “controlling
law,” and Doe is not entitled to vacatur of the judgment on that ground. Metzler Inv. GmbH, 970
F.3d at 142 (internal quotation marks omitted).
28
a fetus – Baby Nicholas – as named plaintiff of the Viable Fetus Class. App’x at
139. It also offers a basic description of Baby Nicholas, alleging that his gestational
age is at least twenty-four weeks and detailing how he might be at risk of harm
from domestic violence. And it proposes his mother and grandmother, Brown-
Lee and Brown, as next friends to bring his claims on his behalf.
Unlike Doe’s claims in the original complaint, Baby Nicholas’s claims do not
fail at the threshold for failing to identify the real party in interest. Although Baby
Nicholas is a pseudonym, Article III does not require Brown-Lee to “name names”
in order to bring claims on his behalf. FASORP, 11 F.4th at 75 (internal quotation
marks omitted); see also Do No Harm v. Pfizer, Inc., 126 F.4th 109, 122 n.7 (2d Cir.
2025) (“[A]n organizational plaintiff need not identify specific injured members by
name at the pleading stage.”). And in sharp contrast to the original complaint, the
post-Dobbs complaint attempts to provide a description of the harm Baby Nicholas
faces, alleging that Brown-Lee’s former partner has threatened to physically attack
her, which could in turn harm Baby Nicholas. Accordingly, we must assess
whether that description establishes that Baby Nicholas “has a concrete interest in
a live dispute.” In re: 2016 Primary Election,
836 F.3d at 588.
29
A. Mootness
At the outset, Defendants argue that Baby Nicholas’s claims do not present
a live dispute because those claims are moot. At the time the plaintiffs submitted
the post-Dobbs complaint in November 2021, Brown-Lee was over twenty-four
weeks pregnant with Baby Nicholas. Because Baby Nicholas is no longer in utero,
Defendants argue that his challenges to the RHA are moot.
In general, “a case is moot when the issues presented are no longer live or
the parties lack a legally cognizable interest in the outcome.” Comer v. Cisneros, 37
F.3d 775, 798 (2d Cir. 1994) (internal quotation marks omitted). For class actions,
this typically means that the named plaintiff must obtain class certification before
his claims become moot. See U.S. Parole Comm’n v. Geraghty,
445 U.S. 388, 397–98
(1980). But there is an important exception when the named plaintiff brings a
claim that is “so inherently transitory that the trial court will not have even enough
time to rule on a motion for class certification before the proposed representative’s
individual interest expires.” Comer,
37 F.3d at 799 (internal quotation marks
omitted). Because there would otherwise be no way to bring those claims, we treat
them as live even if the named plaintiffs’ personal stake becomes moot before the
class is certified.
30
That exception to mootness applies here. Doe alleges in the post-Dobbs
complaint that Baby Nicholas faces an inherently transitory harm in that he is
subject to physical harm (through abortion or third-party violence) while he
remains in utero. And because that harm will dissipate within a matter of months,
the trial court may not have enough time to rule on a class certification motion.
Indeed, we have already held that a harm that will dissipate in six months qualifies
as inherently transitory. See Salazar v. King, 822 F.3d 61, 74 (2d Cir. 2016) (applying
this exception to claims that challenged federal student loans as unlawful, even
though all of the named plaintiffs’ loans had already been fully discharged in six
months or fewer). And even more on point, the D.C. Circuit has held that harms
which exist only during pregnancy fall within this exception, since pregnancies
last only nine months. See J.D. v. Azar,
925 F.3d 1291, 1311 (D.C. Cir. 2019) (“Just
as [a] one-year immigration detention . . . would end too soon [to obtain class
certification], so too would a full term of pregnancy.”). Because the same is true
of the harms that Baby Nicholas alleges in the post-Dobbs complaint, his claims are
“inherently transitory” and were not mooted by the fact that he is no longer in
utero.
31
B. Standing
Because Baby Nicholas’s claims are not moot, we turn to the allegations in
the post-Dobbs complaint to assess whether Baby Nicholas (through his proposed
representatives Brown-Lee and Brown) would be able to meet his “burden” of
establishing Article III standing. Lujan, 504 U.S. at 561. As noted above, Article III
requires a plaintiff to demonstrate (1) an actual or imminent injury, (2) that is fairly
traceable to the defendant’s conduct, and (3) that is likely to be redressed by a
favorable ruling. See
id. at 560–61. At the pleading stage, the plaintiff “must allege
facts that affirmatively and plausibly suggest” that he has met all three
requirements. FASORP, 11 F.4th at 76 (internal quotation marks omitted).
The analysis here is complicated by the facts that Baby Nicholas’s claims in
the proposed amended complaint (i) challenge two parts of the RHA – abortion
decriminalization and fetal homicide repeal – and (ii) seek both damages and
equitable relief on those claims. Because “standing is not dispensed in gross,” a
plaintiff “must demonstrate standing for each claim that [he] press[es] and for each
form of relief that [he] seek[s] (for example, injunctive relief and damages).”
TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (emphasis added). This means
that a plaintiff who has standing to challenge one law does not automatically have
standing to challenge a different law, even when both challenges are brought in
32
the same suit. See Town of Milton v. Fed. Aviation Admin., 87 F.4th 91, 97 n.3 (1st Cir.
2023). And “a plaintiff’s standing to seek injunctive relief does not necessarily
mean that the plaintiff has standing to seek retrospective damages.” TransUnion,
594 U.S. at 436.
Here, this means that Baby Nicholas must separately demonstrate standing
to challenge the RHA’s decriminalization of abortion and its repeal of fetal
homicide. Moreover, he must separately establish standing to seek damages
(compensatory and nominal) and equitable relief (an injunction and a declaratory
judgment). We thus begin by addressing whether Baby Nicholas has standing to
seek damages, and then assess whether Baby Nicholas has standing to obtain
equitable relief with respect to either part of the RHA.
1. Damages
At the start, we conclude that Baby Nicholas lacks standing to seek
compensatory or nominal damages on either of his challenges to the RHA. As the
Supreme Court has made clear, a plaintiff does not have standing to seek damages
when he was exposed to a “mere risk of future harm” that never “materialize[d].”
Id. (emphasis added). For instance, a woman driving home from work might be
exposed to a “risk of future harm” if she comes across a reckless driver swerving
33
between lanes. Id. But so long as the reckless driver does not hit her (or cause
actionable emotional distress), she may not sue him for damages, since her risk of
harm never materialized into a concrete injury under Article III. See
id. at 436–37.
For the same reason, Baby Nicholas may not seek damages here. Although
he seeks to challenge two parts of the RHA – the provisions decriminalizing
abortion and those repealing fetal homicide – the post-Dobbs complaint does not
allege that Baby Nicolas has suffered a concrete harm from either. With respect to
abortion decriminalization, the post-Dobbs complaint asserts only that Brown-Lee
has “considered terminating [her] pregnancies as a way to escape the abuse” she
faced at the hands of her former partner. App’x at 117–18 (alleging that Brown-
Lee’s former partner consistently became violent and abusive during her past
pregnancies, which caused Brown-Lee to contemplate abortion). But even if the
RHA’s abortion decriminalization did make Brown-Lee more likely to terminate
her pregnancy with Baby Nicholas, he has suffered at most an abstract risk of
future harm, not a concrete form of past injury. He may not seek retrospective
damages – compensatory or nominal – for his challenge to this portion of the RHA.
Damages are likewise unavailable for Baby Nicholas’s challenge to the
RHA’s fetal homicide repeal. Brown-Lee asserts that her former partner has
34
physically harmed her in the past – before she was pregnant with Baby Nicholas
– and has threatened to do so several times since. Once again, however, Baby
Nicholas did not suffer any concrete harm and at most has been exposed to a
possible risk of harm in the future. He therefore does not have standing to seek
damages as part of this challenge to the RHA either.
2. Equitable Relief
Even though Baby Nicholas has suffered only a future risk of harm, he may
still (in theory) seek prospective relief against the RHA in the form of an injunction
or declaratory judgment. See TransUnion, 594 U.S. at 435. “To obtain forward-
looking relief, [a] plaintiff[] must establish a substantial risk of future injury that is
traceable to the [g]overnment defendants and likely to be redressed by an
injunction against them.” Murthy v. Missouri,
603 U.S. 43, 69 (2024). In “most
standing disputes” involving a risk of future injury, the “two key questions” relate
to imminence and traceability. All. for Hippocratic Med., 602 U.S. at 381. An
“imminent” injury is one that “is certainly impending,” which means “that
allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409 (2013) (alteration accepted and internal quotation marks omitted);
see also
id. at 414 n.5 (noting that the harm need not be “literally certain” and an
35
injury may be imminent “based on a ‘substantial risk’ that the harm will occur”).
Traceability, meanwhile, is a causation requirement that obligates the plaintiff to
show that his injury “likely will be caused by the defendant’s conduct.” All. for
Hippocratic Med., 602 U.S. at 382.
Applying these requirements here, we conclude that Baby Nicholas lacks
standing to bring either of his challenges to the RHA.
a. Abortion Decriminalization
We first conclude that Baby Nicholas lacks standing to challenge the portion
of the RHA that decriminalized abortion. As explained above, these sections of
the RHA eliminated all criminal liability for performing an abortion. See RHA
§§ 5, 7-a to 10. The post-Dobbs complaint, however, fails to allege that Baby
Nicholas faces an imminent injury as a result of the RHA having decriminalized
abortion. To do so, it would have to plead that Brown-Lee has “concrete plans” to
terminate her pregnancy with Baby Nicholas. Lujan, 504 U.S. at 564. But Brown-
Lee does not assert that she is currently contemplating obtaining an abortion, or
even that she has done so recently. Because the post-Dobbs complaint does not
allege that Baby Nicholas faces an “imminent” harm now that abortion has been
decriminalized, he lacks standing to challenge those sections of the RHA.
Id.
36
b. Fetal Homicide Repeal
We likewise conclude that Baby Nicholas lacks standing to challenge the
portion of the RHA that eliminated fetal homicide from New York’s criminal code.
Doe broadly argues that Baby Nicholas has standing to seek injunctive and
declaratory relief against this RHA provision because the elimination of criminal
penalties for fetal homicide creates an “enhanced risk” of harm to Baby Nicholas.
Doe Br. at 38 (internal quotation marks omitted). According to Doe, the
elimination of those penalties makes it more likely that a third party will attack a
pregnant woman and “kill a viable child in the womb.” Id. at 36 (quoting App’x
at 240). Doe also offers a narrower argument that this risk is especially grave for
Baby Nicholas in particular, since Brown-Lee’s former partner has a history of
physically assaulting her when she is pregnant.
But the post-Dobbs complaint does not allege that Defendants themselves –
all New York state officials – are threatening to harm Baby Nicholas directly.
Instead, it alleges that, because Defendants are no longer enforcing the pre-RHA
fetal homicide laws, an independent third party will attack Brown-Lee and thus
harm Baby Nicholas sometime in the future. As the Supreme Court has explained,
there are “two particular challenges” with relying on this sort of “one-step-
37
removed, anticipatory” theory. Murthy, 603 U.S. at 57. First, there are often
traceability problems. In general, it is easier for a plaintiff to establish standing to
challenge a law that regulates his own conduct directly. See Lujan, 504 U.S. at 561–
62. But standing is “ordinarily substantially more difficult to establish” when, as
here, the plaintiff challenges a law that regulates “someone else.” All. for Hippocratic
Med., 602 U.S. at 382 (quoting Lujan,
504 U.S. at 562). In these cases, a plaintiff’s
injury will be traceable to the government’s action only if the regulated third party
“will likely react in predictable ways that in turn will likely injure the plaintiffs.”
Id. at 383 (internal quotation marks omitted). Second, allegations of potential injury
from third parties raise imminence problems as well. It is not sufficient to
speculate that a traceable injury might happen some day; the plaintiff must
plausibly allege “a substantial risk” that such an injury will happen “in the near
future.” Murthy,
603 U.S. at 58.
Putting these two requirements together, the post-Dobbs complaint must
plausibly allege “a substantial risk that, in the near future,” someone will harm
Baby Nicholas “in response to the” RHA’s passage. Id. That is a “tall order,” and
one that Doe fails to meet here.
Id.
38
As a threshold matter, Doe’s broadest argument – that the RHA exposes
Baby Nicholas to a generalized “enhanced risk” of harm from the public at large –
fails on imminence grounds. Doe Br. at 37 (internal quotation marks omitted). As
we have explained, this sort of standing theory, premised on “enhanced risk,”
requires the plaintiff to “allege[] actual future exposure to that increased risk.”
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (internal quotation
marks omitted). Baby Nicholas must do more than speculate about the existence
of unknown persons who might do him harm at some point. Because he must
allege that such harm is in fact imminent, he cannot establish standing based on a
broad theory of generalized risk. See Clapper, 568 U.S. at 410–11 (explaining that
even an “objectively reasonable likelihood” of injury would still fall short of an
“imminent[]” harm).
To be sure, the post-Dobbs complaint does point to one person who might
pose a threat to Baby Nicholas: Brown-Lee’s former partner, who has physically
harmed her in the past and has threatened to do so again. But even assuming that
amounts to an imminent threat, the chain of causation between the former
partner’s conduct and the RHA’s passage is far too attenuated to be traceable to it.
First of all, Doe suggests that the former partner is more likely to attack Brown-
39
Lee again – and harm Baby Nicholas – because “[u]nder current law there is no
deterrence for men who would kill a viable child in the womb.” Doe Br. at 36
(emphasis added) (quoting App’x at 240). But that obviously overstates the case.
Even though the former partner could not be punished for fetal homicide, he
would still face up to twenty-five years in prison for assaulting Brown-Lee, which
would surely provide some deterrence to such an act of violence. See N.Y. Penal
Law § 70.00(2)(b), (3)(b) (class B felonies are punishable by a sentence of one to
twenty-five years);
N.Y. Penal Law § 120.10 (first-degree assault is a class B felony).
And as the Supreme Court has made clear, when another statute would impede
the alleged harm from occurring, the “chain of causation” is broken and
traceability is lacking. All. for Hippocratic Med., 602 U.S. at 390 (rejecting standing
theory that doctors would suffer injuries to their conscience if they had to perform
an abortion, because federal and state “conscience laws” statutes would shield
those doctors from repercussions if they declined to perform the abortion).
Moreover, Brown-Lee’s own affidavit belies any causal link between the
RHA and her former partner’s violent conduct. If such a link existed, then the
former partner presumably would have increased or enhanced his physical threats
and violent behavior once the RHA was passed in 2019. See Murthy, 603 U.S. at 62
40
(“[A] causal link is possible only if the [injury] occurred after [the government
action].”). But Brown-Lee alleges the opposite: that the former partner physically
harmed her between 2017 and 2019 but has not done so since. In other words, the
former partner’s violent conduct began when fetal homicide was still a crime and
appears to have diminished since passage of the RHA. Based on the allegations
contained in the post-Dobbs complaint, we do not see a plausible inference that the
RHA has caused Brown-Lee’s former partner to become more violent.
Such an inference is particularly weak here, since the relevant harmful
conduct not only began before the RHA was passed but stopped soon thereafter.
Even with the benefit of all plausible inferences in Baby Nicholas’s favor, the post-
Dobbs complaint alleges nothing that indicates that the RHA has caused or will
cause Brown-Lee’s former partner to physically harm her and Baby Nicholas. To
the contrary, the only plausible inference is that the former partner’s violent
behavior is the result of his own “independent decision[s],” unrelated to the RHA.
Id. at 57 (internal quotation marks omitted). This breaks the chain of causation
between the RHA and Baby Nicholas, and the district court was therefore correct
in denying Doe leave to amend the complaint to introduce Baby Nicholas’s claims
through Brown-Lee and Brown.
41
Baby Nicholas might have argued that the RHA’s passage exposed him to a
substantial risk of harm that required Brown and Brown-Lee to take steps to
mitigate the risk. The Supreme Court has explained that “[i]n some instances, we
have found standing based on a ‘substantial risk’ that the harm will occur, which
may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.”
Clapper, 568 U.S. at 414 n.4. While Brown-Lee incurred costs to mitigate the risk
from her former partner before the RHA was passed, she does not allege that the
passage required her to incur new costs to mitigate an additional risk.
Again, we take no position today with respect to whether a fetus may
otherwise meet the requirements for Article III standing. We merely note that
“those seeking to challenge the constitutionality of state laws are not always able
to pick and choose the timing and preferred forum for their arguments.” Whole
Woman’s Health v. Jackson, 595 U.S. 30, 49 (2021). Because Baby Nicholas does not
plausibly face an Article III injury that is imminent or traceable, he may not sue
Defendants over the RHA through this action.
42
CONCLUSION
Accordingly, we conclude that:
1. A next friend need not demonstrate a “significant relationship”
with the real party she seeks to represent under Federal Rule of Civil
Procedure 17(c)(2). The district court therefore abused its discretion
in denying Doe’s next friend motion on this ground.
2. To establish standing, a next friend must identify or otherwise
describe the real party in interest she seeks to represent. Because Doe
fails to do so here, she lacks standing to bring claims on behalf of the
Viable Fetus Class, and the district court was ultimately correct in
dismissing her claims for lack of standing.
3. The post-Dobbs complaint fails to plausibly allege that Baby
Nicholas’s feared harm is imminent and fairly traceable to the RHA’s
passage. The district court was thus correct in denying Doe’s motion
to amend the complaint to add Baby Nicholas’s claims for lack of
standing.
For these reasons, we AFFIRM the judgment of the district court.
43
