Yesterday in Food and Drug Administration v. Alliance for Hippocratic Medicine the Supreme Court unanimously declined to reach the merits, finding that the plaintiffs, pro-life medical associations and individual doctors challenging the FDA’s 2016 and 2021 rule changes on mifepristone, have no Article III standing. Recall that this case is not about the availability of mifepristone, but a challenge to specific rule changes that eliminated safety precautions to protect women—something easy to forget amid the typically sensationalized headlines that come from overwhelmingly pro-abortion media outlets.
But in a decision written by Justice Brett Kavanaugh, the Court declined to review the substantive issues because it considered the standing question answered by the fact that the doctors do not prescribe, manufacture, sell, or use the drug. Rather, they have “objections to mifepristone being prescribed and used by others.” The “FDA has not required the plaintiffs to do anything or to refrain from doing anything.” The justices did not find compelling the plaintiffs’ causation theories based on what Court called “downstream economic injuries” that were “too speculative or otherwise too attenuated,” “injuries to the medical associations themselves,” or “downstream conscience injuries.”
It is notable that the Court went out of its way to underscore the importance of conscience rights and say that existing “[f]ederal law fully protects doctors against being required to provide abortions or other medical treatment against their consciences.” This is meaningful given that the record showed that the doctors had to complete abortions at least a dozen times. Hospitals can no longer hide behind specious legal arguments to strong-arm doctors, contrary to their consciences.
What is particularly disappointing, however, is the inconsistency displayed by Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan, who were in the majority in June Medical Services L.L.C. v. Russo (2020) and found standing for doctors challenging hospital admitting-privileges requirements that were enacted to protect the health of their patients. In his concurring opinion yesterday, Justice Clarence Thomas cited his dissent in June Medical and tacitly drew attention to this inconsistency, writing that “just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients.” If only all the justices were so consistent.
While those who routinely disparage the Court as seeking outcomes to advance a political agenda will likely ignore yesterday’s decision over the long term, it reminds us that the justices—the originalists at least—are conscientiously trying to follow the law where it leads them, regardless of outcome. So here we have a unanimous decision in a closely watched abortion case.
I hope that the liberal justices will adhere to this precedent in the future as historically they have been very willing to entertain much more tenuous standing theories for litigants whose positions they agreed with. Time will tell.
This case also illustrates how the behemoth administrative state has empowered unelected bureaucrats to create regulations that affect the lives of everyday Americans but are so difficult—or even impossible—to successfully challenge in court. This is why it is so important that our laws are passed by our elected representatives rather than put into place by fiat by agency bureaucrats. We shall see more on that subject in this term’s other decisions still waiting to be handed down.