The Volokh Conspiracy

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The Ignored Aesthetic Standing Argument In FDA v. Alliance for Hippocratic Medicine

The fauna that did not bark, the flora that did not bloom.


In FDA v. Alliance for Hippocratic Medicine, the Court rejected three theories of standing: (1) expected conscience objections, (2) expected monetary harms, and (3) diversion of resources. However, there was another theory of standing adsressed in the Fifth Circuit that the Court did not resolve.

Judge Ho's concurrence found standing based on an aesthetic injuries.

In addition to the injuries analyzed by the majority, Plaintiffs have demonstrated another basis for Article III standing: the aesthetic injury they experience in the course of their work. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (recognizing aesthetic harm as "injury to a cognizable interest"); Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing."); id. at 566, 112 S.Ct. 2130 ("[T]he person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm."). It's well established that, if a plaintiff has "concrete plans" to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. See Lujan, 504 U.S. at 564, 112 S.Ct. 2130. . . .

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

Plaintiffs' declarations illustrate that they experience aesthetic injury from the destruction of unborn life.

In short, if naturalists can claim an aesthetic injury to see plants and animals, then pro-life doctors could claim a similar injury with regard to newborn babies.

The Supreme Court has recognized that "the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist." Lujan, 504 U.S. at 566, 112 S.Ct. 2130. Every circuit, including our own, has concluded that, when a federal agency authorizes third parties to harm flora or fauna that a plaintiff intends to view or study, that satisfies all of the requirements for Article III standing. . . .

I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.

The aesthetics argument was actually advanced in Havens Realty, a precedent that received its last rites today.

The three individual plaintiffs, who, at the time the complaint was filed, were all residents of the city of Richmond or the adjacent Henrico County averred that they had been injured by the discriminatory acts of petitioners. Coles, the black renter, claimed that he had been "denied the right to rent real property in Henrico County." Further, he and the two tester plaintiffs alleged that Havens' practices deprived them of the "important social, professional, business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices."

In other words, the plaintiffs asserted an aesthetic injury in having a racially diverse neighborhood. The Havens Court did not pass on this issue, but it also was not rejected.

On appeal, the Supreme Court could have considered the "aesthetic" standing argument raised in Judge Ho's concurrence. But Justice Kavanaugh did not. Indeed, he favorably cited some form of naturalist standing:

Consistent with that understanding of how standing principles can develop and solidify, the Court has identified a variety of familiar circumstances where government regulation of a third-party individual or business may be likely to cause injury in fact to an unregulated plaintiff. For example, when the government regulates (or under-regulates) a business, the regulation (or lack thereof ) may cause downstream or upstream economic injuries to others in the chain, such as certain manufacturers, retailers, suppliers, competitors, or customers. . . . When the government regulates parks, national forests, or bodies of water, for example, the regulation may cause harm to individual users. E.g., Summers, 555 U. S., at 494.

Why did the Court not address the aesthetic standing argument? The fauna did not bark, and the flora did not bloom.

Perhaps the Court said nothing because addressing aesthetic injury would have broken up a unanimous decision. Or the Court could not meaningfully distinguish the arguments raised in Judge Ho's concurrence from the various environmental cases.

It is also possible that the Court thought the issue was forfeited or waived. As best as I can tell, ADF did not advance the "aesthetic" injury argument in its briefing before the District Court or the Fifth Circuit. But ADF did advance the argument before the Supreme Court:

If plaintiffs have an "undeniably … cognizable interest" in avoiding the distress of losing "an animal species," Lujan v. Defs. of Wildlife, 504 U.S. 555, 562– 63 (1992), or even the chance to "view[ ] the flora and fauna," Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009), then Respondent doctors have a concrete interest in avoiding heartbreaking emergency situations that require them to be complicit in a process that ends an unborn life. Pet. App. 80a–83a (Ho, J., concurring and dissenting in part) (Respondents' "aesthetic injury from the destruction of unborn life" is "cognizable"). The emotional harm Respondents suffer "suffice[s] for Article III standing." TransUnion, 594 U.S. at 440.

It is not clear to me that this issue was preserved below, so perhaps it was forfeited. California v. Texas held that even if a jurisdictional argument is not raised below, it is still forfeited. (I am still steamed about that holding years later–the issue was preserved.)

If the issue was waived, then the Court's failure to pass on it is of no moment. I do not think you can read this opinion to say anything at all about aesthetic standing.

This argument seems available for some future case.