Supreme Court didn’t end access to Mifepristone

Today, the Supreme Court released its opinion in FDA v. Alliance for Hippocratic MedicineHere’s a little background—you can be forgiven if you’ve lost track of how this case has evolved since I first wrote about District Judge Matthew Kacsmaryk’s order granting a nationwide injunction banning mifepristone in April of 2023.

In April of 2023, Matthew Kacsmaryk, a federal district judge in Amarillo, Texas, entered a nationwide injunction banning mifepristone, one of two drugs used for medication abortion. He did that despite 20 years of data that established mifepristone as safe and effective, with fewer complications than Tylenol. Judge Kacsmaryk entered a stay for seven days to give DOJ an opportunity to appeal his order. They didn’t need a week, though. They filed within hours.

People who thought it couldn’t get any worse after Dobbs gutted the abortion rights guaranteed in Roe v. Wade were stunned. Medication abortion accounts for more than half of the procedures in the United States, and a significant majority of the public favors letting women use it.

Mifepristone was approved by the FDA in 2000. At that time, it had to be prescribed by a doctor, patients were required to have three in-person visits with the doctor, and the drug could only be used to terminate pregnancies up to seven weeks. That changed in 2016, when the FDA relaxed some of those rules, permitting mifepristone to be used up to 10 weeks, allowing healthcare providers like nurse practitioners to prescribe the drug, and permitting just one in-person visit . In the midst of the pandemic in 2021, the FDA did away with the in-person visit requirement altogether.

None of that sat well with the plaintiffs, a group of doctors who were anti-abortion. They challenged everything from the FDA’s approval of the drug in the first place in 2000 forward. At the time, I was deeply concerned that when the case got to the Supreme Court, they might take advantage of the opportunity to all but end access to the most widely used form of abortion left to American women.

But that didn’t happen, at least not today. The Supreme Court didn’t end access to mifepristone; instead, it ducked the substantive issue, leaving it for another day by ruling that the plaintiffs in this case lacked standing and dismissing the proceeding on that basis without considering the merits of their argument. When we first looked at the case, we discussed the fact that that was the correct outcome, that the case should be dismissed due to a lack of standing. The surprise is that this Court, with its uniquely results-oriented jurisprudence when it comes to denying access to abortion, went ahead and did it.

The decision was 9-0, with Justice Brett Kavanaugh writing for a unanimous court. Only Justice Thomas wrote a separate argument, a concurrence.

The sigh of relief here is only temporary. There is nothing to prevent anti-abortion forces from finding better plaintiffs and returning to court. Part of the plaintiffs’ argument in this case involved the Comstock Act, an old law, not used for decades, which bans mailing anything that educates about or can be used to provide an abortion. The law was passed at the behest of a religious fanatic who wanted to define moral purity for the country. Now, conservatives want to bring it back into use, and it’s very unlikely we’ve heard the last of it. We talked about the Comstock Act and its origins in depth here, and it’s worth going back for the refresher—your outrage will keep you from becoming complacent.

If you’re out of time and attention, stop here. But I’ll spend a little time on the details of the case and the standing argument, and what it’s future implications might be, for those who want to be legal nerds tonight.

Briefly and Kavanaugh’s reasoning for lack of “standing?”

The test for standing is well established. It requires a plaintiff to show that

  1. She has suffered or likely will suffer an injury in fact,
  2. The injury likely was caused or will be caused by the defendant, and
  3. The relief requested from the court would be sufficient to redress the injury

Justice Kavanaugh wrote that the plaintiffs didn’t meet the test. There are federal conscience laws in place that provide definitive protection for doctors who don’t want to perform abortions or related treatment, and the law protects them from any repercussions due to their refusal. There was no evidence the doctors suffered any economic harms. So, he concluded, there was no injury in fact. “The injury in fact requirement prevents the federal courts from becoming a ‘vehicle for the vindication of the value interests of concerned bystanders.’” A person has to have actual skin in the game to be a plaintiff with standing. Justice Kavanaugh rejected the idea that these plaintiffs suffered injuries caused by the FDA, stating that “the causation requirement screens out plaintiffs who were not injured by the defendant’s action. Without the causation requirement, courts would be ‘virtually continuing monitors of the wisdom and soundness’ of government action.”

There’s a double-edged sword here that also gets fleshed out a bit further in Justice Thomas’ concurrence. It’s the notion of organizational standing. The plaintiffs say they have been harmed and forced to incur costs to oppose the FDA’s policies, listing the following items:

  • The FDA “caused” the associations to conduct their own studies on mifepristone so that the associations can better inform their members and the public about mifepristone’s risks.
  • The FDA “forced” the associations to “expend considerable time, energy, and resources” drafting citizen petitions to the FDA, as well as engaging in public advocacy and public education.
  • All of that has caused the associations to spend “considerable resources” to the detriment of other spending priorities.

Justice Kavanaugh is still not impressed. He writes,

“But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way.”

Justice Thomas would go further than that. He writes in his concurrence that,

“Our third party standing doctrine is mistaken,”—he would abolish it. The Rest of the story is here:

No Standing For You, Civil Discourse, Civil Discourse, Joyce Vance.