Heather Swanson; Oneida Health, LLC v. Michael Hilgers

United States Court of Appeals
For the Eighth Circuit
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No. 24-3027
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Heather Swanson; Oneida Health, LLC,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Michael Hilgers, in his official capacity as the Attorney General of the State of
Nebraska; Ashley Newmyer, in her official capacity as the Interim Director of the
Division of Public Health for the Nebraska Department of Health and Human
Services1,
lllllllllllllllllllllDefendants - Appellees.
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 15, 2025
Filed: August 22, 2025
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Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
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1Ashley Newmyer is automatically substituted for her predecessor under
Federal Rule of Appellate Procedure 43(c)(2).

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COLLOTON, Chief Judge.
Heather Swanson, a board-certified nurse midwife, brought this action alleging
that Nebraska state officials violated her constitutional rights and rights of her
prospective patients through laws restricting the practice of midwifery. The district
court2 dismissed Swanson’s first-party claims on the merits and dismissed her claims
on behalf of prospective patients for lack of standing. Swanson appeals, and we
affirm.
I.
The Nebraska Legislature passed the Nebraska Certified Nurse Midwifery
Practice Act in 1984 “to safeguard public life, health, safety, and welfare, to assure
the highest degree of professional conduct by practitioners of certified nurse
midwifery, and to insure the availability of high quality midwifery services to persons
desiring such services.” Neb. Rev. Stat. § 38-602. The Act requires that midwives
perform their services (1) under the supervision of a licensed physician and under a
“practice agreement,” and (2) only in an authorized medical facility, and not in
attendance at a home birth. Id. § 38-613. A “practice agreement” with a licensed
physician specifies the medical functions to be performed by the midwife and limits
where she may perform those services. Id. § 38-609. Midwives who violate the ban
are subject to potential fines and criminal prosecution. Neb. Rev. Stat. §§ 38-196,
-1,118, -1,124.
Heather Swanson is a certified nurse midwife who seeks to provide home birth
services for women in Nebraska. Swanson says that she has been constrained to “turn
away many women who wished to experience a home birth for a variety of reasons.”
2The Honorable Robert F. Rossiter, Jr., Chief Judge, United States District
Court for the District of Nebraska.
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Swanson sued the attorney general and public health director of the State of Nebraska
in an effort to gain relief from the statute.
Swanson’s complaint alleged that the Act violates the Due Process Clause of
the Fourteenth Amendment by preventing Swanson from attending home births and
by requiring her to maintain a practice agreement with a supervising physician. The
complaint also asserts that the Act violates a fundamental due process right of
Swanson’s “prospective patients” to “choose the manner and circumstances of giving
birth.”
The district court dismissed the complaint on the ground that Swanson failed
to state a claim for a violation of her own rights and lacked standing to vindicate the
alleged rights of her prospective patients. We review a district court’s grant of a
motion to dismiss for failure to state a claim de novo, taking all facts alleged in the
complaint as true. Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted).
II.
Swanson argues that the challenged provisions impermissibly burden an
alleged constitutional right to provide childbirth services. The regulations require
Swanson to maintain a practice agreement with a physician. Such an agreement
limits the settings where Swanson may practice midwifery and the medical functions
that she may perform. Neb. Rev. Stat. § 38-609. Swanson may undertake only the
functions authorized in a practice agreement under a physician’s supervision, and she
may not attend a home birth. Id. § 38-613. Swanson argues that these regulations are
designed to further the economic interests of physicians and advance no interests in
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health or safety. She also contends that the regulations undermine the health and
safety of mothers and infants, because they limit the availability of medical services.
Health and welfare laws are entitled to a “strong presumption of validity” and
“must be sustained if there is a rational basis on which the legislature could have
thought it would serve legitimate state interests.” Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 301 (2022) (internal quotation omitted). State restrictions on the
practice of a profession are likewise reviewed under a rational basis standard.
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955).
The Act states a legislative purpose “to safeguard public life, health, safety, and
welfare, to assure the highest degree of professional conduct by practitioners of
certified nurse midwifery, and to insure the availability of high quality midwifery
services to persons desiring such services.” Neb. Rev. Stat. § 38-602. The legislature
rationally could have believed that the Act would serve those legitimate interests.
The risks involved with delivery of a newborn make it rational for a legislature to
require that back-up assistance and emergency facilities be readily available. See
Leigh v. Bd. of Registration in Nursing, 506 N.E.2d 91, 93 (Mass. 1987). The
requirement that certified nurse midwives operate under a physician’s supervision
rationally furthers a legitimate state interest in ensuring that midwives safely perform
the contemplated services. Lange-Kessler v. Dep’t of Educ. of the State of N.Y., 109
F.3d 137, 141-42 (2d Cir. 1997); Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d 639,
646-47 (3d Cir. 1995); Gorenc v. Klaassen, 421 F. Supp. 3d 1131, 1160-61 (D. Kan.
2019).
There may be a robust policy debate over whether the statutory restrictions are
optimal: Swanson argues that they actually narrow the health care market, reduce
choice, and lead some women to undergo unassisted childbirth at home. But “[a] law
supported by some rational basis does not offend the constitution merely because it
is imperfect, mathematically imprecise, or results in some inequality.” Birchansky
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v. Clabaugh, 955 F.3d 751, 758 (8th Cir. 2020). The Constitution leaves the choice
among rational alternatives to the legislature, and the district court properly granted
the motion to dismiss on Swanson’s claim alleging a violation of her rights.
III.
Swanson next maintains that she has third-party standing to vindicate the rights
of her prospective patients. Generally, a plaintiff may assert only her own injury in
fact and “cannot rest [her] claim to relief on the legal rights or interests of third
parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This rule is “grounded in Art.
III limits on the jurisdiction of federal courts to actual cases and controversies.” New
York v. Ferber, 458 U.S. 747, 767 n. 20 (1982). Article III requires “that a plaintiff
have a ‘sufficiently concrete interest in the outcome of [the] suit to make it a case or
controversy.’” Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955 n.5
(1984) (alteration in original) (quoting Singleton v. Wulff, 428 U.S. 106, 112 (1976)).
There are also prudential reasons for the doctrine. If a “claim is brought by
someone other than one at whom the constitutional protection is aimed, the courts
might be called upon to decide abstract questions of wide public significance” which
should remain with “governmental institutions . . . more competent to address” them.
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (internal quotations omitted). The
restriction on third-party standing “‘frees the Court . . . from unnecessary
pronouncement on constitutional issues’” and “assures the court that the issues before
it will be concrete and sharply presented.” Joseph H. Munson Co., 467 U.S. at 955
(quoting United States v. Raines, 362 U.S. 17, 22 (1960)).
The Supreme Court has recognized a “limited” exception to this rule for a
litigant who demonstrates (1) a close relationship to the third party and (2) a
hindrance to the third party’s ability to bring suit. Kowalski, 543 U.S. at 129-30.
Swanson does not meet these criteria, so she may not assert the rights of her patients.
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Swanson does not have a close relationship with “prospective patients” whom
she has not yet met or treated. While “existing” relationships may be sufficient to
confer third-party standing, “hypothetical” relationships with unknown claimants are
not. Id. at 131. Nor are Swanson’s prospective patients meaningfully hindered in
asserting their own rights. A pregnant woman who seeks to challenge the statute
likely has nearly the nine-month gestational period to address the issue, and a
prospective mother may be able to raise the claim even earlier in anticipation of a
future pregnancy. See Sammon v. N.J. Bd. of Med. Examiners, 66 F.3d 639, 643 (3d
Cir. 1995). If more time were required, then the woman’s claim would survive the
end of pregnancy under an exception to the doctrine of mootness. Roe v. Wade, 410
U.S. 113, 125 (1973). Experience shows that women are in a position to assert their
own rights related to pregnancy and childbirth. See, e.g., H. L. v. Matheson, 450 U.S.
398, 400 (1981); Williams v. Zbaraz, 448 U.S. 358, 361 (1980); Maher v. Roe, 432
U.S. 464, 467 (1977); Doe v. Bolton, 410 U.S. 179, 188 (1973); Spencer v. Se. Mo.
Hosp., 452 F. Supp. 597, 597 (E.D. Mo. 1978); Williams v. S.F. Unified Sch. Dist.,
340 F. Supp. 438, 439 (N.D. Cal. 1972).
Swanson argues that even if she fails to demonstrate a close relationship and
hindrance, the Supreme Court has “been quite forgiving with these criteria . . . ‘when
enforcement of the challenged restriction against the litigant would result indirectly
in the violation of third parties’ rights.’” Kowalski, 543 U.S. at 130 (quoting Warth,
422 U.S. at 510); see U.S. Dep’t of Lab. v. Triplett, 494 U.S. 715, 720 (1990); Craig
v. Boren, 429 U.S. 190, 195 (1976); Singleton, 428 U.S. at 113-17 (plurality opinion);
Eisenstadt v. Baird, 405 U.S. 438, 445-46 (1972); Griswold v. Connecticut, 381 U.S.
479, 481 (1965); McGowan v. Maryland, 366 U.S. 420, 429 (1961); Barrows v.
Jackson, 346 U.S. 249, 252, 255-58 (1953). Even in the cited cases, however, the
criteria still “have been satisfied” in the eyes of the Court. Powers v. Ohio, 499 U.S.
400, 411 (1991).
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Swanson maintains that if the criteria were satisfied by abortion providers
seeking to assert rights of prospective patients, see June Med. Servs. L.L.C. v. Russo,
591 U.S. 299, 318 (2020) (plurality opinion); id. at 354 n.4 (Roberts, C.J., concurring
in the judgment), then it follows that she too has third-party standing. The difficulty
with this contention is that the abortion cases “ignored the Court’s third-party
standing doctrine.” Dobbs, 597 U.S. at 286-87. While the Supreme Court has not
had occasion to revisit those decisions directly, Dobbs is a clear signal that a
“forgiving” approach to third-party standing in abortion cases should not be extended.
An early opinion in this area reasoned that a woman seeking an abortion has “[o]nly
a few months, at the most” to assert a putative right, and that she may “be chilled
from such assertion by a desire to protect the very privacy of her decision from the
publicity of a court suit.” Singleton, 428 U.S. at 117 (plurality opinion). By contrast,
a woman seeking midwife services has a longer gestational period in which to press
a claim, and she is unlikely to be deterred from disclosing a forthcoming birth (or she
could proceed under a pseudonym as warranted). Particularly where the court cannot
reliably know whether the interests of unidentified expectant mothers will align with
the midwife’s preferences on such matters as providing care without a supervising
physician, it would be imprudent to extend the availability of third-party standing to
this context.
* * *
The judgment of the district court is affirmed.
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