In its decision in Food and Drug Administration v. Alliance for Hippocratic Medicine, the U.S. Supreme Court did not evaluate the safety of the current relaxed regulation of abortion pills. Consequently, both sides of the abortion debate are disappointed. But neither should be surprised.
Today’s decision was foreshadowed by a previous case decided in 2020 involving abortion providers. While activists on both sides of the issue may be frustrated that the court is not addressing what they care most about — in this case, the safety and legality of abortion pills — the ruling is an important one that will affect many other cases in which third parties claim standing, such as cases involving climate change.
In oral arguments, the justices focused their questions on the standing — the legal right — of the doctors and organizations contesting the actions of the FDA. That is, did they have the right to bring a lawsuit at all?
The doctors with the Alliance for Hippocratic Medicine argued that current FDA regulations harm women and increase the workload and liability of emergency room doctors and hospitalists who must provide care for women who have taken the pills and suffered adverse consequences. But the justices unanimously concluded that the doctors lacked standing to challenge FDA’s actions. They reversed the judgment of the lower court and sent the case back to the Fifth Circuit, where it will most likely be dismissed.
The court’s careful review of who can sue in federal courts deserves close study not only in the context of abortion litigation, but also in any case asserting “associational standing” or “third-party standing,” in which organizations sue for their members’ injuries, or where a litigant sues to protect the rights of a nonlitigant. Dissents in the court’s 2020 opinion in June Medical Services L.L.C. v. Russo presaged the decision in FDA. In that case, abortion providers challenged Louisiana’s law requiring them to have hospital admitting privileges, or a transfer arrangement with a physician who had such privileges.
The June Medical Court decision noted, “abortion providers (have been) presumed to have third-party standing to challenge health and safety regulations on behalf of their patients . . ..”
But in dissent, Justice Samuel Alito dryly responded that “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.” Justice Clarence Thomas denied the plurality’s apparent view that “third-party standing for abortionists is well settled by (Court) precedents.”
In his dissent, Justice Neil Gorsuch focused on the way in which judicial power is “constrained by an array of rules,” including standing. “The plaintiffs before us are abortion providers. They do not claim a constitutional right to perform that procedure, and no one on the Court contends they hold such a right. Instead, the abortion providers before us seek only to assert the constitutional rights of an undefined, unnamed, indeed unknown, group of women who they hope will be their patients in the future.”
Gorsuch explained that an insistence on following rules such as standing helps to keep the court in its “constitutionally assigned lane.” The real question, he said, is the court’s “willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”
Clearly in FDA, the court is willing to insist that litigant doctors — whether abortion opponents or abortion providers — demonstrate they have standing: that they have been, in fact and in specific ways, injured by government action. Given the decades-long practice of abortion providers representing their patients, some may have come to believe in a doctrine of “doctor standing” that allows physicians to challenge general government safety regulations that negatively impact them. But the court dismisses that idea and gives examples:
“The government repeals certain restrictions on guns — does a surgeon have standing to sue because he might have to operate on more gunshot victims?
“The answer is no: The chain of causation is simply too attenuated. Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.”
The opinion continues, “Firefighters could sue to object to relaxed building codes that increase fire risks. Police officers could sue to challenge a government decision to legalize certain activities that are associated with increased crime.” That would result in giving every citizen standing in federal court to challenge any government action they don’t like.
The court notes that having “sincere legal, moral ideological and policy objections” to a government action does not establish a “justiciable case or controversy in federal court.” Because the plaintiffs did not establish that they had been injured by the loosening of abortion pill regulations, “the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.” Rather, the plaintiffs can “present their concerns and objections s to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views ... to fellow citizens, including in the political and electoral processes.”
The contours of the standing requirements in federal court outlined in this opinion may impact cases related to individuals and organizations claiming associational or third-party standing in federal lawsuits against government action or inaction, as related, for example, to climate change, environmental regulations, environmental degradation and potentially many other causes.
It’s unlikely that this case will be the last word related to the abortion pill controversy. In a statement, Planned Parenthood Federation of America President and CEO Alexis McGill Johnson said, “Today, the Supreme Court did the bare minimum by rejecting this case on standing and allowing mifepristone to remain FDA approved and without new restrictions. However, with the case returning to the district court, the fight is not over.”
Attorney Erin Hawley, who represented the plaintiffs, agreed that the dispute has not ended, saying, “Nothing in today’s decision changes the fact that the FDA’s own label says that roughly one in 25 women who take chemical abortion drugs will end up in the emergency room — a dangerous reality the doctors and medical associations we represent in this case know all too well.”
She went on to say, “The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm rooms, without requiring the ongoing, in-person care of a doctor. While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs — like an initial office visit to screen for ectopic pregnancies.”
If it is the case that women are being harmed by using the abortion pills under the current regulations, it’s time that the courts hear directly from the women themselves.
Camille S. Williams is an attorney practicing in Provo who has published articles related to women’s and family issues. The views expressed are her own.