Left: Associate Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington, Friday, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool). Right: Associate Justice Brett Kavanaugh stands during a group photo at the Supreme Court in Washington, on April 23, 2021. (Erin Schaff/The New York Times via AP, Pool).
In a unanimous decision issued Thursday, the U.S. Supreme Court ruled that an advocacy group representing anti-abortion doctors lacked standing to challenge the Food and Drug Administration’s regulation of mifepristone, more commonly known as the “abortion pill.”
As Law&Crime reported during oral arguments this March, the justices did not appear keen to side with anti-abortion doctors at the Alliance for Hippocratic Medicine, or AHM, who argued that the drug should be completely removed from the market because of their personal beliefs about the drug, its purpose or its safety.
The drug was first approved by the FDA in 2000. Regulatory requirements enforced by the agency were relaxed in 2016 and then again in 2021, each time making it easier for doctors as well as pregnant people to obtain the drug. Specifically, in 2021, the FDA announced it would no longer force patients to appear in person to get a prescription for mifepristone after it reviewed safety data from pregnant women who used it during the COVID-19 pandemic.
When a lawsuit landed before U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, he ordered the FDA to revoke its approval for the drug in 2023.
On Thursday, while Justice Brett Kavanaugh acknowledged that the doctors have “sincere, legal, moral, ideological and policy objections” to the use or prescription of mifepristone, they are considered “unregulated parties” to the matter.
“And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for 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. Nor do the plaintiff’s other standing theories suffice,” Kavanaugh wrote. [Emphasis original]
The Trump-appointed justice explained the doctors did not suffer any “injury in fact” either, and Kavanaugh wrote that “the federal courts are the wrong forum” to address this particular grievance over the drug. Instead, if they are concerned about safety or its use, then they must lodge objections or raise concerns with the FDA itself, Congress, or the president.
Though opponents to abortion may not be pleased with the decision — the policy director for the anti-abortion group Susan B. Anthony Pro-Life America called it a “sad day for all who value women’s health and unborn children’s lives” — Thursday’s unanimous ruling took pains to outline why the Constitution’s standing requirement is absolutely critical to implement “the Framers’ concept of the proper — and properly limited — role of the courts in a democratic society.”
“In particular, the standing requirement means that the federal courts decide some contested legal questions later rather than sooner, thereby allowing issues to percolate and potentially be resolved by the political branches in the democratic process. And the standing requirement means that federal courts may never need to decide some contested legal questions,” the 38-page ruling states.
Citing the 2000 ruling in Campbell v. Clinton, Kavanaugh wrote: “‘Our system of government leaves many crucial decisions to the political processes,’ where democratic debate can occur and a wide variety of interests and views can be weighed.”
Justice Clarence Thomas, appointed by former President George H.W. Bush, said in a concurring opinion Thursday that he agreed completely that the doctors lacked standing.
“I join the Court’s opinion in full because it correctly applies our precedents to conclude that the Alliance for Hippocratic Medicine and other plaintiffs lack standing. Our precedents require a plaintiff to demonstrate that the defendant’s challenged actions caused his asserted injuries,” Thomas wrote before adding that the high court also denies the theory that the plaintiffs had “third party standing” to assert rights on behalf of their patients.
Just as “abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patient,” Thomas wrote.
Injury must also be “concrete” and “particularized” — not just a general grievance as AHM made, the court found.
That injury can be physical, monetary or injury to one’s property or constitutional rights, for example. But it also must actually be imminent or bound to occur in the future. It cannot simply be speculative, the justices said.
The plaintiffs appeared to recognize this, the court wrote Thursday, and in turn, they advanced “several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact” including claims that there were would be “downstream conscience injuries” to doctors as well as “downstream economic injuries.”
Further, the federal government has long protected health care providers’ rights to preserve and respect their own personal religious beliefs when treating patients.
Thursday’s opinion notes that the doctors never identified “any instances in the past where they have been sued or required to pay higher insurance costs because they have treated pregnant women suffering mifepristone complications.”
“Nor have the plaintiffs offered any persuasive evidence or reason to believe that the future will be any different,” the justices wrote. “In any event, and perhaps more to the point, the law has never permitted doctors to challenge the government’s loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors’ offices with follow-on injuries,” the opinion states.
At oral arguments in March, the safety of mifepristone, which is taken over two pills orally, was debated but without much success by attorneys arguing on behalf of AHM.
Much information already existed on the record about the drug’s safety and certainly long before oral arguments at the high court. Last March, when the issue was before Kacsmaryk, a group of medical organizations including the American College of Obstetricians and Gynecologists and the American Medical Association, filed a friend-of-the-court brief highlighting how AHM relied on politics instead of science to anchor the allegations in its lawsuit.
According to the FDA‘s website, as of December 2022, there were just 32 reports of death in patients who used mifepristone since its approval in September 2000, including two cases of ectopic pregnancy resulting in death and several fatal cases of sepsis, but even those deaths could not be conclusively tracked backed to the abortion pill since there were “concurrent use of other drugs, other medical or surgical treatments, coexisting medical conditions, and information gaps about patient health status and clinical management of the patient.”
Read the opinion here.
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