Distressingly, the opinion leaves breadcrumbs for [anti-abortion] activists to follow next time—and sets up some roadblocks to keep progressive activists out. For example, Kavanaugh writes that plaintiffs who aren’t actually affected by a given regulation, like the AHM, can still “thread the causation needle” if they show that the parties who are regulated “will likely react in predictable ways that in turn will likely injure the plaintiffs.” The Court also clarified that an organization does not have standing merely if it “diverts its resources in response to a defendant’s actions.”
Why does this matter? The diversion-of-resources argument comes from a landmark 1982 case called Havens Realty Corporation v. Coleman, in which a fair housing organization sought to sue an apartment complex for its refusal to rent apartments to Black “testers”—people who posed as potential renters to test compliance with the law. The Court ruled in Havens Realty that the organization, although it wasn’t actually trying to rent apartments, nonetheless had standing to sue, in part because the realty company’s actions forced the organization to use its limited resources to ferret out illegal discrimination.
Kavanaugh’s opinion declines to extend standing to the AHM under Havens Realty. But he also goes out of his way to call Havens Realty an “unusual case” that the Court “has been careful not to extend…beyond its context.” If this language signals that the Court is looking skeptically at future diversion-of-resources claims, that could be bad news for civil rights groups trying to use the courts to enforce the law.