The Supreme Court's stance on abortion rights remains pivotal as it considers arguments on the legality of mifepristone, the widely used abortion pill. The FDA's relaxed dispensing rules for the pill face scrutiny from the Alliance for Hippocratic Medicine (AHM), which sued the FDA, arguing that the approval process was flawed and the drug's accessibility should be limited. SCOTUS’s decision could significantly influence abortion access and the FDA's drug approval authority.
There is one major potential catch in this decision, though. It may not answer the big questions the country has been waiting on. That's because the case could essentially be thrown out on what some might consider a procedural technicality. Let's take a look at how we got here.
Background on the Case
Despite the issue of abortion being divisive in partisan politics, the FDA has maintained its approval of mifepristone across the last five presidential administrations—which, of course, have ranged across the ideological spectrum. But a couple of years ago, a newly-formed anti-abortion group called the Alliance for Hippocratic Medicine challenged the FDA’s authority and approval of this drug, which has been used by millions of women across the country for well over twenty years.
Nearly a year ago, the case of Alliance for Hippocratic Medicine v. FDA was up before a federal court in Texas. The court attempted to block the long-standing FDA approval of the abortion pill. The U.S. Department of Justice appealed this decision to the Fifth Circuit Court of Appeals, but they weren’t much help. The Fifth Circuit more or less sided with the anti-abortion plaintiffs, and attempted to reinstate the restrictions on the drug that were in place before 2016.
So, the DOJ turned instead to the U.S. Supreme Court. SCOTUS first granted a temporary stay of the lower court decision, which allowed mifepristone to continue to be on the market while the case was hammered out in the courts. The Court finally agreed to hear the case, and it heard oral arguments from the parties last Tuesday.
Not So Fast: The Standing Issue
Although the case raises many important questions—from abstract ethical questions regarding abortion’s place in medicine to the more concrete questions regarding agencies’ (like the FDA) power to enact rulings under the Administrative Procedure Act — the reality is that these questions may not get answered. Instead, the case may turn on what might feel like a bit of a technicality: the question of standing.
While it often seems that courts love to dodge hard questions, the issue of standing isn’t even a case of SCOTUS beating around the bush because they think the issue is thorny. Courts are often (more or less correctly) accused of choosing the path of least resistance when presented with big decisions.
Is the Court Avoiding the Question?
One example is when a federal or state court is asked to interpret the U.S. or state constitution, respectively. The “constitutional avoidance” doctrine encourages federal courts to resolve cases based on other legal grounds whenever possible, avoiding unnecessary rulings on constitutional issues that could create tension between the judiciary and other branches of government. In simpler terms, courts will try to decide a case without having to say if a law is unconstitutional.
There isn't a universally agreed-upon recent example of SCOTUS definitively using the constitutional avoidance doctrine. This is because the doctrine is about the reasoning behind a decision, not necessarily a clear-cut outcome. Justices may invoke it without explicitly mentioning it, and the lines can be blurry between avoidance and simply interpreting a law narrowly.
That said, some legal scholars seem to be pretty confident about cases in which it’s used, and it’s potentially come up in the abortion context before. One example is the 2003 case of Gonzales v. Carhart, in which SCOTUS struck down a partial-birth abortion ban on the grounds that it lacked a health exception, avoiding a broader decision on abortion rights altogether.
Standing Requirements
But this case is different because SCOTUS isn't avoiding a question. Rather, they are not allowed to hear the case in the first place if they can't find standing.
The doctrine of standing is a legal doctrine that limits who can sue over misconduct. It's based on Article III of the U.S. Constitution, which states that the judiciary can only decide a "case or controversy". To establish standing, a plaintiff must meet certain requirements regarding the “injury” that they suffered.
The suit must be based on an actual or imminent injury that is concrete and particularized. The plaintiff also must be able to trace that injury to the defendant's actions, and the court should be able to “redress” the injury if it were to decide for the plaintiff. If the plaintiff cannot demonstrate that they are or will "imminently" be harmed by the law, the court will rule that the plaintiff "lacks standing" to bring the suit. The court will then dismiss the case without considering the merits of the claim of unconstitutionality.
Standing In Past Abortion Cases
There haven't been any major Supreme Court abortion cases dismissed solely for lack of standing in recent years. However, there have been instances where standing has been a potential issue, or where lower courts have addressed it in abortion-related cases. One recent example in the abortion context is the 2020 case of June Medical Services v. Russo, which involved a Louisiana law requiring abortion doctors to have admitting privileges at nearby hospitals.
In Russo, the government argued that abortion providers do not have legal standing to challenge the admitting privileges requirement on behalf of their patients. The abortion providers were trying to argue that they had what’s known as “third party standing,” which would allow a person who’s not directly affected to bring a lawsuit by asserting the rights of another individual who may have difficulty bringing suit on their own behalf, when the interests of these two people are closely aligned. While the Supreme Court ultimately struck down the law on other grounds, some legal experts argued that the abortion providers who challenged the law lacked standing because they hadn't shown they would be unable to obtain admitting privileges.
You’ll often see third-party standing used in cases where the affected party is vulnerable or doesn’t have the means to bring suit for themselves, such as in cases of health services, including mental health and contraception, as well as housing cases or in education. You see it used in the abortion context because of the time-limited nature of pregnancies and the fact that lawsuits often take a long time to play out. SCOTUS established in a case called Singleton v. Wulff that doctors can bring suit on behalf of their patients in abortion cases. In that decision, the reasoning was that if doctors won, they would benefit by receiving payment for the abortions; on the other hand, not receiving that payment “harmed” the doctors. The court concluded that the doctors were thus in a sufficiently “adversarial” position, i.e., had clear stakes in the outcome.
Standing in the Mifepristone Case
In the mifepristone case that’s currently before SCOTUS, the lower courts had ruled that the plaintiffs (members of AHM) had standing. But the SCOTUS justices get to decide the issue anew and once and for all.
AHM claims that its member doctors are OB/GYN hospitalists, on-call OB/GYNs, and emergency-room physicians who have suffered repeated injuries. It points out that, as outlined in the FDA’s Black Box warning on mifepristone labels, the drug can cause “[s]erious and sometimes fatal infections and bleeding,” causing roughly 3% of women who take it to end up in the emergency room. It argues that the FDA’s 2021 and 2016 actions have increased this risk — a harm not only to women but also to doctors. How does it harm doctors? They claim that doctors “suffer harm because they have no choice but to violate their conscience by completing elective abortions in emergency situations and “diverting time and resources away” from their regular obstetrics practice when women present with abortion-drug complications.”
The FDA is arguing that the plaintiffs don’t have the necessary standing. They point out that very few women suffer the complications that necessitate the emergency treatment that AHM claims could result. It points out that it’s entirely speculative the few women who do need emergency treatment would seek it from the two specific doctors who are part of the plaintiff organization. Further, they argue that there’s no evidence that this harm is caused by the 2016 and 2021 changes as opposed to the availability of mifepristone in general. In sum, the plaintiffs’ legal theory for why they should have standing is too tenuous.
If the SCOTUS Justices aren't convinced that AHM has sufficient standing, that alone would be enough to kick out the lawsuit. In which case, the FDA would "win" by default, and the drug would remain legal.
Related Resources:
- Why Mifepristone Is on Trial at the Supreme Court (FindLaw's Federal Courts)
- Abortion Rights FAQ (FindLaw's Learn About the Law)
- More Changes to Abortion Laws on Tap for 2023 (FindLaw's Federal Courts)
