Notably for this court, the ruling in FDA v. Alliance for Hippocratic Medicine was unanimous. The outcome is a sharp if implicit rebuke to the out-of-control U.S. Court of Appeals for the Fifth Circuit, which had stretched — tortured, really — the law of standing to find that the doctors and their group, created in the wake of the court’s 2022 ruling eliminating the constitutional right to abortion, could bring suit.
To demonstrate standing, plaintiffs have to show a “concrete” injury directly caused by the action they are challenging. In this case, the doctors posited, and the Fifth Circuit signed on to, a far-fetched theory under which they might someday have found themselves in emergency rooms forced to treat women suffering complications after taking mifepristone.
The outcome in this case was predictable, but the lineup — in particular, Justices Clarence Thomas and Samuel A. Alito Jr. joining the majority — was not. Thomas and Alito dissented in April 2023 when the court allowed the FDA regulations to remain in place while the case made its way through the lower courts.
And Alito, at oral argument in the case in March, had bristled at U.S. Solicitor General Elizabeth B. Prelogar’s suggestion that no one might have standing to challenge the FDA’s mifepristone regulations. “There’s no remedy?” Alito asked then. “The American people have no remedy?” Thursday’s ruling found him — much to my surprise — joining an opinion suggesting just that. “Even if no one would have standing, this Court has long rejected that kind of ‘if not us, who?’ argument as a basis for standing,” the court said in an opinion by Justice Brett M. Kavanaugh.
As Kavanaugh explained, standing is no mere technical legal hurdle; it’s a “bedrock constitutional requirement,” designed to ensure that courts aren’t roving beyond their proper authority.
The doctors “do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything,” Kavanaugh observed. “Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”
This opinion did not come across like that of a court itching to immerse itself in the abortion wars; it read like that of a court that wished the whole issue would go away and leave it to do the important work of dismantling the regulatory state.
But the abortion issue won’t disappear, and that is a piece of the bad news. Waiting in the wings are a number of antiabortion states that claim the FDA regulations interfere with their rights. Idaho, Missouri and Kansas have already been granted leave to intervene in the mifepristone case by U.S. District Judge Matthew Kacsmaryk, the antiabortion group’s jurist of choice, who would have revoked the FDA’s approval entirely.
The states’ arguments for standing are about as preposterous as the doctors’. They contend that purported complications from mifepristone impose increased costs on states, and that the FDA’s regulations “also harm the States’ ‘sovereign interests’” in preventing abortion within their borders.
But recent Supreme Court rulings on state standing undermine that argument. The fact that the original physician plaintiffs lacked standing should mean the states’ intervention ends as well. And with the Texas doctors out, there isn’t a basis for three other states to be suing in federal court in Texas.
Not according to Missouri. “My case is still alive at the district court,” Missouri Attorney General Andrew Bailey tweeted Thursday. “We are moving forward undeterred with our litigation to protect both women and their unborn children.”
Nonetheless, abortion access, at least such access as exists in the wake of Dobbs, remains intact — for the time being. As legal challenges wend their way through the courts, the justices have made clear they are not inclined to upset the status quo.
But the courts are not the only venue for abortion mischief, and that gets to the second piece of bad news. The biggest risk to access to mifepristone isn’t the courts — it’s the election of Donald Trump.
As the mifepristone case came to the Supreme Court, the dispute involved the legality of the FDA’s decisions in 2016 and 2021 to expand access to the medication, making it available later in pregnancy, letting medical professionals other than doctors write prescriptions and dispensing with the requirement of an in-person visit. A Trump FDA could move not only to roll back those regulations — it could seek to yank mifepristone’s approval entirely, upending abortion access nationwide.
For all Trump’s ballyhooing of — or hiding behind — states’ rights, do you have any doubt that his administration would try this? I don’t.
Thursday was what passes for a good day when it comes to abortion rights. But there is a clear and present danger to access, and he’ll be on the ballot come November.
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