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Supreme Court’s Abortion Pill Case Exposes Double Standard on ‘Standing’

A conservative federal appeals court endorsed the anti-abortion plaintiffs’ far-fetched claims of potential injury after dismissing the cases of progressive plaintiffs who could show more concrete harms.

December 21, 2023

Since its inception, the U.S. Supreme Court has held that federal courts must restrain themselves to only hearing discrete controversies in which the parties have a concrete stake. This policy’s purpose is to honor constitutional limits on the judiciary’s power and avoid usurping the democratic powers of the executive and legislative branches. For this reason, plaintiffs must establish that they have “standing” to sue — that is, that they face actual or imminent injury that is traceable to a defendant’s actions and that a court can remedy.

Commentators have long complained that the components of this standing test are too elastic and that both the Supreme Court and the lower courts use them pretextually. In other words, that courts are not limiting their own power in deference to the other two branches, but simply picking and choosing which cases they’d prefer to hear.

That complaint has gained force with recent inconsistencies in the Supreme Court’s approach to standing, as the same conservative wing that has taken the lead for decades in tightening standing rules has also, on occasion, heard cases with major policy implications brought by parties with standing claims that are tenuous at best. For example, the Court recently overturned the Biden administration’s loan forgiveness policy that was challenged by a handful of states claiming indirect injury of the sort typically found insufficiently imminent and traceable.

At the lower court level, Food and Drug Administration v. Alliance for Hippocratic Medicine, a case with major implications for reproductive freedom decided below based on a novel theory of standing, raises similar alarms.

The lawsuit seeks to force the FDA to revoke or scale back its 2000 approval of the medication abortion drug mifepristone. In the decades since its approval, mifepristone has helped millions of women safely end their pregnancy and has proven valuable in treating pregnancy complications. It is now the most common abortion method by far.

Shortly after the Supreme Court overruled Roe v. Wade, a group of anti-abortion medical professional organizations, such as the American Association of Pro-Life Obstetricians and Gynecologists, formed the Alliance for Hippocratic Medicine — and they incorporated it in a small Texas town that just happened to fall within a judicial division where they were guaranteed to draw an avowedly anti-abortion judge. They convinced this judge to rule that mifepristone, a drug with a safety profile comparable to over-the-counter medications, was too dangerous to be on the market. He ordered the FDA to withdraw its 2000 approval.

The Fifth Circuit Court of Appeals scaled the order back slightly, finding that the plaintiffs were too late to challenge the 2000 decision but that they had presented sufficient evidence to show that starting in 2016, the FDA’s decisions to loosen original restrictions were likely arbitrary and capricious and therefore invalid.

To sustain the trial court’s injunction in part, the Fifth Circuit had to find that the plaintiffs had a sufficiently concrete stake in the issue to bring the case. In the usual sense, it’s clear they don’t: they neither prescribe nor take mifepristone. So instead, the plaintiffs argued that they faced “imminent” injury from the FDA’s 2016 and 2021 decisions to increase mifepristone access because at some point, one of their members will probably have a patient suffering complications from mifepristone and will feel morally implicated in treating that patient. The appeals court agreed.

The Alliance for Hippocratic Medicine rested that prediction on various falsehoods: that medication abortion can only be safely provided after an in-person examination (often a medical history is sufficient); that abortion providers regularly send patients with complications to the emergency room (in most cases, they treat them or arrange for treatment); that emergency complications from mifepristone are common; that these complications are uniquely challenging and upsetting (in fact, they manifest in the same way as a miscarriage); that any emergency complication would be attributable to the FDA’s 2016 and 2021 decisions to lift medically outdated restrictions (as opposed to its 2000 decision to approve mifepristone); and that any provider would have to provide care they object to morally, when federal protections allow them to opt out in those circumstances.

But, beyond these specific factual flaws, the court’s decision also constituted a major unprecedented expansion of standing law. To begin with, it allowed plaintiffs to claim injury based on the prediction that some (as-yet-identified) member would face a distressing medical case. Previously, both the Supreme Court and the Fifth Circuit flatly rejected this kind of predictive statistical theory of standing.

The court also credited plaintiffs’ self-serving and implausible claim that they — emergency medicine doctors — would somehow suffer psychological harm from treating women suffering abortion complications. As one commentator who had clerked for a conservative justice dryly put it, “If treating a patient makes you feel ‘complicit’ in whatever the patient did to come to the emergency room, being an emergency room doctor is not the job for you.” It is a particularly bizarre theory of standing that would allow emergency room physicians to prevent their patients from accessing a medical treatment because they don’t want to treat the rare complications from that treatment.

To be clear, one could argue that the federal courts have been too restrictive in their test for standing. One could even argue that emergency medicine doctors should be able to sue over policies that bring distressing cases to their hospital. But standing rules are supposed to be neutral principles that require courts to limit their role out of respect for the democratic branches. The main problem with the appeals court’s holding in this case is not that it’s too permissive, but that it’s totally inconsistent with how the Fifth Circuit treats plaintiffs seeking remedies that align with progressive policy goals.

For example, the same court that just found that the Alliance for Hippocratic Medicine had standing recently rejected a challenge by children with disabilities against the Texas governor’s mask-optional school policy, finding that these children hadn’t made a sufficient showing that this policy would “imminently” expose them to Covid-19. It rejected a challenge to oil and gas permits because the plaintiff environmentalists hadn’t shown exactly where in the Gulf of Mexico the anticipated pollution would occur. And it rejected a Black plaintiff’s challenge to state laws requiring that his daughter be taught in school “proper respect” for, and how to pledge to, a state flag containing confederate imagery, because the court found it was too speculative to claim these policies would harm her.

The Supreme Court is facing legitimacy crises over apparent conflicts of interest, reversals of precedent, and decisions invalidating hard-fought legislative initiatives. By taking up this medication abortion case, the Court now has the opportunity to reassure the public that at least it’s committed to respecting long-standing constitutional limits on which issues are properly before it.