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Notes -
I think it's tempting and generally hate the modern standing jurisprudence anyway (and even adjacent procedural stuff: Younger reflected far more immediately dangerous conditions to the plaintiff, does not leave near an acceptable escape valve, and is more generally a complete abomination to justice), but I'm not sure this is a driver here.
It would be incredibly trivial to produce a perfectly-ideal test involving the most sympathetic case possible and nominal damages, it'd be easy to argue, and it'd defang a ton of the 'no one would do that' arguments. I'd be a little surprised if there's no such test case already in the works. That's one of the downsides to civil cases: as with big cy pres giveaways or sue-and-settle, the courts have very little defense to friendly plaintiffs.
A victory there just would a) take forever, and b) not do much.
Traditional civil claims can be stopped by sufficient precedent once a test is available; anyone bringing future cases should get slapped down and potential face significant personal liability for frivolous suit. The problem for Whole Woman's Health was that the short timelines, chilling effects of even unsuccessful cases, and statute's bias on court costs would leave any even quickly successful defenses as Pyrrhic. This is why the plaintiffs' main relief requested the federal courts to prohibit state court clerks from accepting certain classes of complaint under a complex class-action theory and enjoin anyone in Texas from filing, and the other (8-1 SCOTUS-permitted!) requests against state licensing officials were seen as a meaningless.
But those problems are not unique. Civil torts emphasizing protected speech or other constitutionally-protected actions are not new, and even where they did allow state actors to bring enforcements (and even where they do have the same thumb-on-scales re: court costs), courts have not jumped head over tail to solve them. Hell, for some topics, even when federal statutes prohibit the civil suits as a class, not only do you still see people bringing countless spurious suits without facing serious injunction or sanction, you end up finding judges willing to accept increasingly bizarre theories justifying new exceptions to those bans.
I think there's good reason to argue against that standard of practice, but I don't think it's correct to recognize it as a new practice, and as a result, it's hard to call it intolerable when a lot of people have been dealing with it for decades.
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