Pre‑Enforcement Standing Demands a Proscribing Law: Tenth Circuit Rejects HCSM Challenge Based on New Mexico’s Insurance Definition

Introduction

In Samaritan Ministries International v. Kane, No. 24-2187 (10th Cir. Oct. 9, 2025), the Tenth Circuit affirmed the dismissal of a pre-enforcement constitutional challenge brought by a nationally prominent healthcare sharing ministry (HCSM), Samaritan Ministries International, and ten of its New Mexico members against the New Mexico Superintendent of Insurance, Alice T. Kane. Plaintiffs alleged that New Mexico’s Office of the Superintendent of Insurance (OSI) had embarked on an “anti-HCSM campaign” and was poised to regulate or prosecute Samaritan and its members as though they were transacting “insurance,” in violation of their First and Fourteenth Amendment rights and New Mexico’s Religious Freedom Restoration Act. They sought declaratory and injunctive relief under 42 U.S.C. § 1983, and damages.

The district court dismissed the case for lack of Article III standing, finding Plaintiffs failed to plausibly allege a concrete, particularized injury-in-fact that was actual or imminent. On appeal, the Tenth Circuit—reviewing de novo—agreed. The panel held that Plaintiffs’ pre-enforcement theory faltered at the threshold because they had not identified any statute or binding policy that proscribed their intended conduct and created a credible threat of enforcement. The court also rejected Plaintiffs’ effort to rely on post-complaint statements by the Superintendent to establish standing.

Although issued as an unpublished “order and judgment,” the decision carries persuasive weight within the Tenth Circuit. It sharpens the contours of pre-enforcement standing by underscoring that a definitional statute, standing alone, does not proscribe conduct and therefore cannot, without more, generate a credible threat of prosecution sufficient to satisfy Article III.

Summary of the Opinion

The Tenth Circuit affirmed the district court’s Rule 12(b)(1) dismissal for lack of standing. Key holdings include:

Standing is assessed at the time the suit is filed; Plaintiffs could not rely on post-complaint statements by the Superintendent in this or other litigation to manufacture an injury-in-fact.
In pre-enforcement challenges, Plaintiffs must identify a course of conduct arguably protected but proscribed by a statute and show a credible threat of enforcement. Plaintiffs failed to identify any operative statute or policy that proscribed their conduct.
New Mexico’s statutory definition of “insurance” (N.M. Stat. Ann. § 59A-1-5) is a definitional provision and does not itself proscribe conduct; thus it cannot by itself create a credible threat of prosecution.
Prior OSI enforcement actions against other HCSMs did not establish a credible, imminent threat to Samaritan because those matters involved distinct, fact-specific circumstances (e.g., lack of ACA-exempt status, fraud allegations, consumer complaints, or third-party investigations).
The Superintendent’s failure to disavow future enforcement is insufficient to establish standing when no facially proscriptive law is identified. Without a law that proscribes Samaritan’s conduct, Plaintiffs could not show a certainly impending injury or substantial risk of harm.

Result: Affirmed. Plaintiffs lacked Article III standing to bring any of their claims for any form of relief.

Background

The Affordable Care Act’s individual mandate exempted members of qualifying healthcare sharing ministries—religious organizations whose members share medical expenses according to shared beliefs. Samaritan Ministries is among the oldest and largest ACA-exempt HCSMs, with members nationwide, including several hundred in New Mexico. Plaintiffs alleged New Mexico’s OSI had adopted a “functional” interpretive approach to the statutory definition of “insurance,” and that OSI’s supposed campaign against HCSMs threatened enforcement against Samaritan and its members.

Plaintiffs’ second amended complaint asserted twelve causes of action under § 1983 and state law, seeking to:

Enjoin OSI from enforcing New Mexico’s insurance laws against Samaritan and its members or exercising regulatory authority over them;
Obtain a declaratory judgment that OSI’s “threatened actions” were unconstitutional and that Samaritan qualifies as an ACA-exempt HCSM; and
Recover damages.

The district court held Plaintiffs lacked standing across the board, because they failed to allege an actual or imminent injury that was concrete and particularized. The Tenth Circuit affirmed.

Analysis

Precedents Cited and Their Role

Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007): De novo review applies to dismissals for lack of subject-matter jurisdiction. The panel applied that standard.
Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996): Standing is a legal question reviewed de novo; frames the appellate posture.
Southern Furniture Leasing, Inc. v. YRC, Inc., 989 F.3d 1141 (10th Cir. 2021): Reiterates Article III’s case-or-controversy requirement. Used for general standing principles.
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): Governs pre-enforcement standing. Plaintiffs must allege an intention to engage in conduct arguably protected but proscribed by statute and a credible threat of enforcement. Central to the court’s analysis.
Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc): Articulates injury-in-fact requirements (concrete, particularized, actual or imminent). Informs the injury analysis.
Tennille v. Western Union Co., 809 F.3d 555 (10th Cir. 2015): Possible future injury is not enough; must be certainly impending or a substantial risk. Applied to reject generalized fears of enforcement.
Spokeo, Inc. v. Robins, 578 U.S. 330 (2016): Plaintiffs must clearly allege facts establishing standing at the pleading stage. Reinforces pleading burdens.
Davis v. FEC, 554 U.S. 724 (2008): Standing must exist for each claim and each form of relief; Plaintiffs fell short across all claims and remedies.
Clapper v. Amnesty International USA, 568 U.S. 398 (2013): Standing assessed at time of filing; speculative future harm insufficient. Used to exclude post-complaint statements as a basis for standing.
Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143 (10th Cir. 2013): Confirms time-of-filing rule; courts “generally” look to when the complaint was first filed. Applied to reject reliance on later events.
Frank v. Lee, 84 F.4th 1119 (10th Cir. 2023), cert. denied, 144 S. Ct. 1349 (2024): In a pre-enforcement context, a credible threat is generally present where a challenged provision facially proscribes the intended conduct and the state has not disavowed enforcement. The panel uses Frank to emphasize Plaintiffs’ failure to identify any facially proscriptive provision.

Legal Reasoning

The court’s standing analysis proceeds in three key steps: (1) time-of-filing, (2) pre-enforcement injury requirements, and (3) insufficiency of enforcement history and non-disavowal arguments.

1) Standing Is Assessed at the Time of Filing

Plaintiffs asked the district court to consider post-complaint statements by the Superintendent—both in this litigation and in discovery in another case—as proof of a credible enforcement threat. The panel, invoking Clapper and SUWA v. Palma, reaffirmed that standing is determined at the moment the action begins. Later developments cannot retroactively supply an injury-in-fact that was missing at filing. This holds particular force in pre-enforcement cases, where speculation about future actions must be grounded in existing law and concrete allegations as of the complaint date.

2) Pre‑Enforcement Injury Requires a Law that Proscribes the Intended Conduct

Under Susan B. Anthony List, Plaintiffs needed to plausibly allege:

An intent to engage in a course of conduct arguably affected with a constitutional interest;
That the conduct is proscribed by statute; and
A credible threat of enforcement.

Plaintiffs identified New Mexico’s statutory definition of “insurance,” N.M. Stat. Ann. § 59A‑1‑5, and described OSI’s supposed “functional” interpretive policy. But a definitional statute does not, by itself, prohibit or penalize conduct. It supplies terms that other, operative provisions might use. Because Plaintiffs did not identify an operative, proscriptive statute or regulation under which OSI could imminently penalize Samaritan’s conduct, their theory failed at the threshold. The panel’s reliance on Frank v. Lee underscored the point: a credible threat generally arises when a challenged provision facially proscribes the intended conduct. No such provision was identified here.

3) Past Enforcement Against Others and Failure to Disavow Are Not Enough

Plaintiffs highlighted OSI’s enforcement actions against five other HCSMs and argued those “serial enforcements” portended action against Samaritan. The panel agreed with the district court that those matters involved distinct circumstances—such as lack of ACA-exempt status, fraud allegations in other states, consumer complaints, or third-party investigations—and therefore did not make “inevitable” a comparable enforcement action against Samaritan. Without factual allegations tying those past actions to Samaritan’s operations, Plaintiffs could not show a “certainly impending” harm or a “substantial risk” of enforcement.

Plaintiffs also argued that the Superintendent had not disavowed future enforcement. While true, non-disavowal alone does not create standing absent a proscriptive law that facially reaches the plaintiffs’ conduct. In other words, the combination of a facially proscriptive provision and non-disavowal can create a credible threat; non-disavowal without a proscriptive provision does not.

Impact and Implications

This decision is particularly consequential for pre-enforcement challenges brought by regulated entities, religious organizations, and advocacy groups, including HCSMs:

Definitional or interpretive provisions cannot, without more, establish standing. Litigants must identify an operative statute or regulation that forbids or penalizes their intended conduct.
Post-filing developments cannot cure standing defects. Plaintiffs should ensure that, as of filing, the complaint pleads facts showing a present credible threat supported by a proscriptive legal hook.
Enforcement history must be closely analogous. Prior enforcement against other entities helps only if the factual and legal circumstances—and the route to enforcement—closely mirror the plaintiff’s situation.
Non-disavowal is not a standalone basis for standing. It gains traction only where a facially applicable, proscriptive provision exists.

For HCSMs, the opinion signals that challenges to state regulation should be anchored to a specific operative prohibition (e.g., a licensing requirement or penalty provision) that clearly reaches the ministry’s conduct, or to a concrete enforcement step (e.g., a cease-and-desist letter, formal notice of violation, or subpoena carrying penalties for noncompliance). Absent such anchors, generalized concerns about “functional” interpretive policies will likely be deemed too speculative.

For state regulators, the decision illustrates that investigative or interpretive activities, without the invocation of a proscriptive provision against a particular plaintiff, may not create a justiciable controversy. Still, once an agency signals an intent to apply specific penalties, issues formal notices, or invokes binding rules, the pre-enforcement door may open under Susan B. Anthony List.

While unpublished and thus not precedential except for limited purposes, the decision is persuasive authority within the Tenth Circuit and aligns with Supreme Court standing jurisprudence. District courts are likely to cite it for the proposition that plaintiffs must plead an operative prohibition to establish pre-enforcement standing.

Complex Concepts Simplified

Injury-in-fact: A real, concrete harm to the plaintiff—either already suffered or certainly impending. Abstract fears or hypothetical future harms do not qualify.
Pre-enforcement challenge: A lawsuit filed before the government actually enforces a law against the plaintiff. Plaintiffs must show that their planned conduct is arguably prohibited and that there is a credible threat of enforcement.
Proscriptive (conduct-prohibiting) law: A statute or regulation that prohibits or penalizes particular conduct (e.g., “No person shall do X; violation is punishable by Y”). A mere definition (e.g., what “insurance” means) is not proscriptive.
Credible threat of enforcement: A realistic likelihood that the government will enforce a specific legal prohibition against the plaintiff’s intended conduct. It is typically present when a plaintiff’s conduct is covered by the face of a law and the government has not renounced enforcement.
Time-of-filing rule: Courts evaluate standing based on the facts as they existed when the complaint was filed. Later events generally cannot create standing retroactively.
Definitional statutes: Provisions that supply meanings of terms used elsewhere in a statutory scheme. They do not, by themselves, forbid conduct or impose penalties.

Practical Guidance for Future Litigants

Identify the operative prohibition: Pinpoint the exact statute or regulation that forbids your conduct and carries penalties. Quote the text and explain how your conduct is covered.
Plead concrete enforcement indicators: Allege specific facts—e.g., cease-and-desist letters, formal notices, subpoenas, or threats—that show enforcement is imminent or substantially likely.
Bridge the analogy from past cases: If relying on prior enforcement against others, detail the close factual and legal parallels that make enforcement against you likely, not merely possible.
File when ready: Ensure your complaint contains all facts demonstrating a credible threat at the time of filing. Do not rely on anticipated developments to establish standing.
Match standing to relief: For each claim and remedy (injunction, declaratory judgment, damages), allege how the injury is caused by the defendant and how the requested relief will redress it.

Conclusion

Samaritan Ministries International v. Kane reinforces a core tenet of pre-enforcement standing: without a law that proscribes a plaintiff’s intended conduct, there is no credible threat of enforcement and thus no Article III case or controversy. The Tenth Circuit, adhering to Supreme Court precedent, declined to treat a definitional statute and a generalized “interpretive policy” as sufficient to create a justiciable pre-enforcement dispute. The decision also reiterates the time-of-filing rule and emphasizes that non-disavowal and non-analogous enforcement against other entities are inadequate substitutes for a facially proscriptive legal provision and concrete indications of impending enforcement.

The takeaway is clear: pre-enforcement plaintiffs must connect their intended conduct to an operative prohibition and show a realistic risk of enforcement under that prohibition as of the date of filing. In the absence of those elements, as here, federal courts will decline to adjudicate the merits for want of Article III standing.