The Satanic Temple v. Labrador

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE SATANIC TEMPLE, No. 24-1243

D.C. No.

Plaintiff - Appellant,

1:22-cv-00411-

DCN

v.

RAUL LABRADOR, in his capacity

as the Attorney General of Idaho; ORDER AND

JAN M BENNETTS, in her capacity AMENDED

as Ada County Prosecutor; STATE OPINION

OF IDAHO,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Idaho

David C. Nye, District Judge, Presiding

Argued and Submitted March 26, 2025

Seattle, Washington

Filed August 11, 2025

Amended September 2, 2025

Before: M. Margaret McKeown, Ronald M. Gould, and

John B. Owens, Circuit Judges.

Order;

Opinion by Judge McKeown

2 THE SATANIC TEMPLE V. LABRADOR

SUMMARY *

Article III Standing

The panel affirmed the district court’s dismissal for lack

of Article III standing of an action brought by The Satanic

Temple (“TST”), a religious association, challenging

Idaho’s laws criminalizing abortion.

The panel held that TST had not met its burden to show

associational standing. TST, whose sole telehealth abortion

clinic is in New Mexico, had not shown that one of its

members has suffered or will imminently suffer an injury

given that TST has no patients in Idaho, no doctors who are

licensed to treat Idaho patients, and identified no Idaho

citizen who sought an abortion from the organization.

The panel held that TST had not met its burden to show

organizational standing. TST’s argument that it diverted

resources to open its New Mexico clinic to provide abortions

in response to Idaho’s and other states’ abortion bans was

insufficient to establish standing. The panel rejected TST’s

argument that its mission to promote abortions was

frustrated by Idaho’s law.

Because TST did not demonstrate standing, the panel did

not reach the merits of TST’s claims.

Although the panel agreed with the district court that

TST lacked standing, it noted that dismissals for lack of

jurisdiction should generally be without prejudice. Here,

because the district court also rejected TST’s claims on the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

THE SATANIC TEMPLE V. LABRADOR 3

merits, it dismissed the complaint with prejudice. The panel

remanded to the district court for a determination of whether

TST’s complaint clearly could not be saved by any

amendment.

COUNSEL

W. James Mac Naughton (argued), Newton, New Jersey;

Jeremiah Hudson, Fisher & Hudson PLLC, Boise, Idaho; for

Plaintiff-Appellant.

Alan M. Hurst (argued), Solicitor General; Nathan S.

Downey, David A. Leroy Fellow; Michael A. Zarian,

Deputy Solicitor General; Brian V. Church, Deputy

Attorney General; Raul R. Labrador, Idaho Attorney

General; Idaho Office of the Attorney General, Boise, Idaho;

for Defendants-Appellees.

ORDER

Appellees’ motion to amend (Dkt. No. 51) is

GRANTED. The opinion filed August 11, 2025, is hereby

amended. The amended opinion will be filed concurrently

with this order. No future petitions for rehearing or rehearing

en banc will be entertained.

IT IS SO ORDERED.

4 THE SATANIC TEMPLE V. LABRADOR

OPINION

McKEOWN, Circuit Judge:

Abortion laws have faced frequent and wide-ranging

challenges from religious groups throughout the federal

courts. In this appeal, we consider challenges to Idaho’s

laws criminalizing abortion brought by a religious

association—The Satanic Temple (“TST”)—that supports

abortion as an exercise of personal sovereignty and bodily

autonomy, two of the group’s core tenets. But no matter how

crucial these beliefs are to TST, “an organization may not

establish standing simply based on the intensity of the

litigant’s interest or because of strong opposition to the

government’s conduct.” Food & Drug Admin. v. All. for

Hippocratic Med., 602 U.S. 367, 394 (2024) (internal

quotation omitted). Article III standing requires

demonstrating an injury in fact, causation, and redressability.

Id. at 380. TST, whose sole clinic is in New Mexico, has no

patients in Idaho, no clinic in Idaho, no doctors who are

licensed to treat Idaho patients, and has identified no Idaho

citizen who seeks an abortion from the organization.

Because TST has not established standing, we affirm the

district court’s dismissal of its claims.

Background 1

TST is a religious association with “over 1.5 million

members worldwide, including over 3,500 members in

Idaho.” “TST venerates, but does not worship, the

allegorical Satan” as described in Paradise Lost as a

defender of personal sovereignty. Its tenets parallel those of

secular humanism and include the tenet that “[o]ne’s body is

1

This background is based on TST’s complaint.

THE SATANIC TEMPLE V. LABRADOR 5

inviolable, subject to one’s own will alone.” TST “members

believe the fetal tissue a pregnant woman carries in her

uterus—from conception until viability—is part of her body

and not imbued with any humanity or existence separate and

apart from that of the woman herself.” Consistent with this

principle, members believe those who are involuntarily

pregnant should get abortions, if this can be done safely, “as

an exercise of their religious beliefs pursuant to the Satanic

Abortion Ritual,” which is primarily a ritual of positive

affirmations intended to relieve any guilt or anxiety while

receiving a medical or surgical abortion.

The Supreme Court dramatically changed the landscape

for abortion in Dobbs v. Jackson Women’s Health

Organization, which held that the Constitution does not

confer a right to abortion. 597 U.S. 215 (2022). Shortly after

the decision, Idaho’s Total Abortion Ban and Fetal Heartbeat

Statute (“abortion laws”) went into effect. 2 Idaho Code

§§ 18-604 et seq.; 18-8801 et seq. These laws criminalize

virtually all abortions. See Idaho Code § 18-8804. The laws

allow for the prosecution of those who receive and those who

provide abortions, and civil actions for damages.

TST challenges Idaho’s abortion laws by suing the

Attorney General of Idaho and the Ada County Prosecutor. 3

TST alleges it “has female TST members residing in Idaho

who are or will become involuntarily pregnant.” It defines

an “Involuntarily Pregnant Woman” as one who “[b]ecame

pregnant without her consent due to the failure of her Birth

2

The Idaho Supreme Court upheld the constitutionality of both laws.

Planned Parenthood Great Nw. v. State, 522 P.3d 1132 (Idaho 2023).

3

TST also sued the State of Idaho, which the district court dismissed

based on sovereign immunity. TST does not challenge that dismissal on

appeal.

6 THE SATANIC TEMPLE V. LABRADOR

Control,” and is a TST member. TST claims that its

members received abortions before Idaho passed its new

abortion laws on August 25, 2022, but now cannot, due to

the criminalization provisions.

TST opened a telehealth abortion clinic (“the Clinic”) in

New Mexico that would provide medical abortions to Idaho

TST members. TST spent over $100,000 to establish and

operate the Clinic, which prescribes abortifacients and

counsels TST members on the Satanic Abortion Ritual. The

Clinic was not operational when TST’s complaint was filed

in September 2022 but became operational as of February

2023.

TST alleges the Idaho abortion laws are unconstitutional

as applied to Involuntarily Pregnant TST members, claiming

that Idaho’s actions have: (1) created a taking of the

economic value of a woman’s uterus by forcing women to

carry unwanted pregnancies without state compensation in

violation of the Fifth Amendment; (2) subjected women

forced to carry unwanted pregnancies to slavery in violation

of the Thirteenth Amendment; and (3) given

unconstitutional preferences to survivors of rape or incest,

who are excepted from Idaho’s abortion prohibitions, in

violation of the Equal Protection Clause of the Fourteenth

Amendment. 4 TST seeks to permanently enjoin Idaho from

enforcing the laws against “Involuntarily Pregnant Women

or anyone who provides an Involuntarily Pregnant Woman

with an abortion[,]” as well as against TST in its provision

of medical abortions in Idaho.

4

TST initially brought a claim under Idaho’s Exercise of Religious

Freedom Act but later consented to its dismissal; that claim is not before

the panel.

THE SATANIC TEMPLE V. LABRADOR 7

The Idaho defendants moved to dismiss under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district

court granted the motion, finding TST lacked both

associational and organizational standing. Apart from its

holding on standing, the district court also proceeded to the

merits to provide additional support for dismissal, rejecting

each of TST’s claims. We affirm dismissal of TST’s

complaint on standing grounds and do not reach the merits.

Analysis

We review de novo the dismissal for lack of Article III

standing. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th

Cir. 2011). We “take as true all material allegations in the

complaint and construe the complaint in favor of the

plaintiff.” Arizona v. Yellen, 34 F.4th 841, 849 (9th Cir.

2022).

To establish Article III standing, TST bears the burden

to demonstrate an injury in fact, causation, and

redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

61 (1992). The injury must be both “(a) concrete and

particularized . . . and (b) actual or imminent, not conjectural

or hypothetical.” Id. at 560 (internal quotations omitted).

The district court correctly found that TST lacks both

associational and organizational standing to challenge

Idaho’s abortion laws.

I. Associational Standing

The Supreme Court laid out the parameters of

associational standing in Friends of the Earth v. Laidlaw:

“An association has standing . . . on behalf of its members

when its members would otherwise have standing to sue in

their own right, the interests at stake are germane to the

organization’s purpose, and neither the claim asserted nor

8 THE SATANIC TEMPLE V. LABRADOR

the relief requested requires the participation of individual

members . . . .” Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The first

requirement sinks TST’s effort to establish standing.

Remarkably, TST devotes less than ten pages of its

seventy-page brief to standing, and it has not shown that

even one of its members would “have standing to sue in their

own right.” Id. No specific members harmed by the laws

are identified and it is unclear whether such a member exists.

Instead, TST relies on a speculative chain of assumptions to

argue only that it is reasonably probable that one of its

members will be injured. This absence of evidence, coupled

with infirm statistical inferences, does not meet Article III’s

standing requirements.

Despite the general requirement to name affected

members, TST names no member, even by pseudonym, who

would have standing to sue. Associated Gen. Contractors of

Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713

F.3d 1187, 1194 (9th Cir. 2013) (holding organization failed

to meet standing requirement where it “[did] not identify any

affected members by name nor [had] it submitted

declarations by any of its members attesting to harm they

have suffered or will suffer”); Summers v. Earth Island Inst.,

555 U.S. 488, 498 (2009) (requiring “specific allegations

establishing that at least one identified member had suffered

or would suffer harm”). Several of our sister circuits have

followed Summers in requiring members to be named. See

Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 602 (8th

Cir. 2022) (“[W]e hold that the [organizational plaintiff]

lacks associational standing to sue on behalf of unnamed

members.”); Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016)

(holding advocacy group lacked standing where its

THE SATANIC TEMPLE V. LABRADOR 9

complaint “did not identify any member of the group”

affected by the challenged regulation).

While we have recognized that an organization need not

always “identify by name the member or members injured,”

that flexibility may be invoked only when it is “relatively

clear, rather than merely speculative, that one or more

members have been or will be adversely affected by a

defendant’s action.” Nat’l Council of La Raza v. Cegavske,

800 F.3d 1032, 1041 (9th Cir. 2015); cf. Ga. Republican

Party v. SEC, 888 F.3d 1198, 1203–04 (11th Cir. 2018)

(holding political party lacked standing where it “failed to

allege that a specific member will be injured,” and an

insufficient affidavit did not make it “certain” that a member

would be injured). TST does not meet Cegavske’s standard

of clarity here, as the harm alleged is hardly “relatively

clear.” 800 F.3d at 1041. And of course, Cegavske did not

purport to modify or overrule Summers’s requirement to

concretely allege that at least one member will be injured.

Id.

In lieu of identifying harmed members, or even

submitting Jane Doe declarations, TST submitted two

declarations alleging that, based on probability, one or more

individual members is at risk of harm from Idaho’s laws.

One declaration is from Dr. J.D., an obstetrics and

gynecological osteopath, who provides scant background

qualifications and apparently has no background in statistics

or public health. The doctor concludes that “twenty-seven []

TST members in Idaho are Involuntarily Pregnant Women

during the course of a year.” In reaching this conclusion, the

doctor relies on the following construct of statistic piled

upon statistic: the Idaho fertility rate in 2021 was 60.7 per

1,000 women; the Idaho induced abortion rate in 2021 was

5.4 induced abortions per 1,000 women; and the national rate

10 THE SATANIC TEMPLE V. LABRADOR

of unintended pregnancy due to failure of birth control is

48%. These numbers are then applied to the 1,750 women

of child-bearing age in Idaho who are TST members. From

this, Dr. J.D. provides an “opinion, to a reasonable degree of

medical probability, that twenty-seven (27) TST members in

Idaho are Involuntarily Pregnant Women during the course

of a year.” Dr. J.D. does not offer an opinion on how many

of these TST members would likely seek an abortion.

This estimate, and the causal chain required to reach it,

are too attenuated and speculative to confer standing. These

twenty-seven involuntarily pregnant TST members may, or

may not, exist. Not only are the cited statewide fertility rates

several years out of date, but it is also unclear that any of the

relevant rates—the Idaho fertility rate, the Idaho induced

abortion rate, or the national rate of unintended pregnancies

due to failure of birth control—is an appropriate proxy for

those rates among Idaho TST members specifically. Nor is

there any evidence or opinion provided that one or more of

these hypothetical involuntarily pregnant TST members

would want to seek an abortion, notwithstanding that it is a

tenet of TST’s belief system. The absence of any evidence

on this last point is, in itself, fatal to the causal chain. Even

assuming the rates applied are apposite, given the nature of

probabilities, there still may be no involuntarily pregnant

Idaho TST member seeking an abortion. This long chain of

speculation cannot confer standing.

TST argues that the district court erred in rejecting Dr.

J.D.’s opinion without a Daubert hearing per the court’s duty

to “ensure that any and all scientific testimony or evidence

admitted is not only relevant, but reliable.” Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 589

(1993). However, this duty “does not . . . require the court

to hold a separate Daubert hearing.” United States v.

THE SATANIC TEMPLE V. LABRADOR 11

Jawara, 474 F.3d 565, 582 (9th Cir. 2007). Here, Dr. J.D.’s

declaration does not even suggest that Dr. J.D. is a

statistician or public health expert who has “scientific,

technical, or other specialized knowledge” to qualify as an

expert witness expressing an opinion based on statistics,

making it reasonable for the district court to have assessed

expertise without a separate hearing. Fed. R. Evid. 702.

Thus, any “lack of an explicit finding [regarding] reliability

was harmless.” Jawara, 474 F.3d at 583.

Further, the district court considered rather than

excluded the declaration and concluded—as we do—that it

is insufficient to establish an injury in fact, because the

doctor never asserts that a TST member will become

involuntarily pregnant and wish to seek an abortion. The

declaration’s deficiency does not hinge on expert

qualification, but rather the uncertainty inherent in averages,

which is why the “requirement of naming the affected

members has never been dispensed with in light of statistical

probabilities.” Summers, 555 U.S. at 498–99. Just as in

Summers, here, “[w]hile it is certainly possible—perhaps

even likely—that one individual will meet all of the[]

criteria” necessary to assert an injury, “that speculation does

not suffice.” Id. at 499.

The other declaration, by the TST Executive Director

responsible for the Clinic, is even more speculative and

deficient. Regarding harm to TST Idaho members, the

declaration states only that there have been hundreds of

inquiries to the Clinic and “[g]iven this enthusiastic

reception by TST members, it is highly likely that one or

more [] TST members in Idaho would use the unique

services of the TST Clinic but for the Idaho Abortion Bans.”

But clinic inquiries from unspecified states do not make it

“relatively clear” that a TST member in Idaho would want

12 THE SATANIC TEMPLE V. LABRADOR

to imminently use the Clinic’s services. This declaration is

insufficient to allege an injury in fact.

Both declarations fall in the classic bucket described in

Lujan: they do not demonstrate concrete, imminent harms

but rather conjectural or hypothetical ones. Lujan, 504 U.S.

at 560. Taking the declarations as true, as we must, Yellen,

34 F.4th at 849, they allege at best the potential for harm,

which is insufficient to demonstrate an injury in fact.

Because TST has not shown that one of its members has

suffered or will imminently suffer an injury, it has not met

the burden to establish associational standing.

II. Organizational Standing

TST has also not shown that it has standing as an

organization. TST argues it has standing as a prescriber of

abortifacients, as well as because it funneled significant

resources to the Clinic and the Idaho laws have frustrated its

organizational mission. Neither theory confers standing.

A. Prescriber Theory

TST’s Clinic does not presently prescribe abortifacients

to TST Idaho members but asserts it would if it could

“lawfully do so.” However, TST can hardly claim injury as

a prescriber because, even absent the challenged laws, it

cannot legally prescribe abortifacients in Idaho: Idaho law

allows only licensed physicians to prescribe abortifacients,

whereas the Clinic employs only nurse practitioners, not

licensed Idaho doctors. Idaho Code §§ 18-617, 18-604(12).

TST does not challenge this law and has not demonstrated

concrete plans to hire doctors in Idaho, 5 alleging only that it

5

TST raises for the first time on appeal that Dr. J.D., licensed in Idaho,

could prescribe abortifacients, but raising this argument in an appellate

brief is too late to serve as evidence of standing. O’Bannon v. Nat’l

THE SATANIC TEMPLE V. LABRADOR 13

could pay $300 to license its nurse practitioners in Idaho. 6

This wishful-thinking allegation is insufficient: “Such ‘some

day’ intentions—without any description of concrete plans,

or indeed even any specification of when the some day will

be—do not support a finding of the ‘actual or imminent’

injury that our cases require.” Lujan, 504 U.S. at 564

(emphasis in original). See also Gonzalez v. U.S. Immigr. &

Customs Enf’t, 975 F.3d 788, 803 (9th Cir. 2020) (“[W]e

assess [a plaintiff]’s standing for prospective injunctive

relief as of the time when he commenced suit, relying on the

allegations in the operative amended complaint.”); § 3531

Standing—In General, 13A Fed. Prac. & Proc. § 3531 (3d

ed.) (generally, standing must exist when the action is filed).

Finally, as with its associational argument, TST has not

identified any person in Idaho seeking to use the Clinic’s

services to receive abortifacients. As the district court

summarized:

Collegiate Athletic Ass’n, 802 F.3d 1049, 1067 n.11 (9th Cir. 2015)

(disregarding challenge to standing raised in a brief because

“[s]tatements in appellate briefs are not evidence”). Notably, Dr. J.D.’s

declaration did not list Idaho as a state of licensure or employment, nor

any association with TST other than as an expert. TST’s Clinic operates

only in New Mexico and requires those receiving abortifacients to have

their telemedicine consult in New Mexico and the drugs delivered to an

address in that state.

6

Even if TST licensed its nurse practitioners in Idaho, this licensing

would not transform them into physicians who can prescribe

abortifacients. See Idaho Code § 18-617. Though TST argues that the

FDA’s “risk evaluation and mitigation strategy” (REMS) for

abortifacients allows nurse practitioners to prescribe abortifacients even

if they are not licensed in the state, it is unclear whether REMS would

preempt the Idaho state law, as TST had argued to the district court but

does not raise on appeal.

14 THE SATANIC TEMPLE V. LABRADOR

No injury will occur to TST unless: (1) TST’s

providers become licensed in Idaho—a

necessary step that neither TST nor any of its

declarants allege is underway or even

planned; (2) a TST member in Idaho

becomes “involuntarily pregnant” due to

failed birth control; (3) that member chooses

to abort her child; and (4) that member

selects the Clinic to help perform the

abortion, rather than some other abortion

provider.

Because TST has not demonstrated that any of these steps

have occurred or are imminent, let alone all four, it cannot

assert an injury as a prescriber of abortifacients.

B. Resources and Mission Theory

It also does not suffice that TST expended resources on

opening the Clinic and that its mission to promote abortion

was frustrated. The Supreme Court clarified and limited the

resources theory of organizational standing in Alliance for

Hippocratic Medicine. 602 U.S. 367. In denying

organizational standing to plaintiffs opposed to abortion who

challenged the FDA’s relaxed regulatory requirements for

the abortifacient mifepristone, the Court explained:

The medical associations respond that

under Havens Realty Corp. v. Coleman,

standing exists when an organization diverts

its resources in response to a defendant’s

actions . . . . That is incorrect. Indeed, that

theory would mean that all the organizations

in America would have standing to challenge

almost every federal policy that they dislike,

THE SATANIC TEMPLE V. LABRADOR 15

provided they spend a single dollar opposing

those policies. Havens does not support such

an expansive theory of standing.

Id. at 395. The Court noted that Havens concerned a direct

effect on the organization’s core activities, which the anti-

abortion associations had not shown, and which TST has not

sufficiently alleged here. Id.

Even before Alliance for Hippocratic Medicine, we held

that an organization “cannot manufacture the injury by

incurring litigation costs or simply choosing to spend money

fixing a problem that otherwise would not affect the

organization at all.” La Asociacion de Trabajadores de Lake

Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir.

2010). That precedent is informative here. While limits on

abortion may have always been of concern to TST, the

organizational resources it spent attempting to provide

abortions by opening the Clinic were spent, by its own

admission, “in response to the bans on abortion in Idaho and

other states.” Indeed, the Clinic only became operational on

February 14, 2023, even though TST’s initial complaint was

filed on September 30, 2022, and its first amended complaint

on December 13, 2022.

To the extent that TST’s pre-existing core mission is to

promote abortion, the Idaho statutes at issue do not curtail

TST’s ability to support its members’ beliefs or provide

information or advocacy on abortion. See All. for

Hippocratic Med., 602 U.S. at 394 (“A plaintiff must show

far more than simply a setback to the organization’s abstract

social interests.”) (internal quotations and citations omitted).

Indeed, TST states that “[p]rior to opening the Clinic, [its]

programs were focused on education and advocacy, not the

practice of medicine” and TST has not alleged that those

16 THE SATANIC TEMPLE V. LABRADOR

activities have been impeded or stopped, only that resources

were diverted from them to the Clinic—a theory that does

not confer standing. See id. at 395–96. The challenged

statutes only criminalize abortion itself, and TST is still not

set up to provide abortion services in Idaho. Thus, TST

cannot establish standing based on a diversion of resources

and frustration of mission theory.

Conclusion

TST’s concern for its members is evident—but it still

bears the burden to demonstrate an injury in fact. TST has

not demonstrated standing, so we do not reach the merits.

See, e.g., All. for Hippocratic Med., 602 U.S. at 378 (“Article

III of the Constitution confines the jurisdiction of federal

courts to ‘Cases’ and ‘Controversies.’”) (reversing and

remanding based on lack of standing without reviewing

merits decision below); § 3531 Standing—In General, 13A

Fed. Prac. & Proc. § 3531 (3d ed.) (“Standing doctrines are

employed to refuse to determine the merits of a legal

claim.”).

We agree with the district court that TST lacked

standing. However, because the district court also rejected

TST’s claims on the merits, it dismissed the complaint with

prejudice. Dismissal with prejudice “is improper unless it is

‘clear’ that ‘the complaint could not be saved by any

amendment.’” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th

Cir. 2009) (internal citation omitted); see also Missouri ex

rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017)

(noting dismissal for lack of jurisdiction should generally be

without prejudice and altering dismissal for lack of standing

to be without prejudice). We remand to the district court for

its determination whether TST’s complaint “clear[ly]

. . . could not be saved by any amendment.” Harris v.

THE SATANIC TEMPLE V. LABRADOR 17

Amgen, 573 F.3d at 737. Of course, we take no position on

this issue. We therefore affirm dismissal on standing

grounds and remand with instructions.

AFFIRMED and REMANDED WITH

INSTRUCTIONS.