The Supreme Court issued a unanimous decision Thursday declining to restrict access to mifepristone, an abortion drug. The justices held that the plaintiffs in the case, who neither used the drug nor were forced to prescribe it to patients against their beliefs, did not have standing to bring legal claims against the Food and Drug Administration (FDA).
How the Case Got to the Supreme Court
In 2000, the FDA approved mifepristone for terminating pregnancies up to seven weeks. At the time, strict regulations were in place for obtaining a prescription, including three in-person office visits. It was also only deemed safe for the first seven weeks of pregnancy.
In 2016, the FDA relaxed these restrictions, extending the usage period to 10 weeks and reducing the required in-person visits. In 2019 the agency approved a generic version, and in 2021, the FDA removed the in-person visit requirement.
Pro-life medical associations and doctors were unhappy with increased access to these drugs and sought to challenge the FDA's stance. The plaintiffs brought the case to federal court in Amarillo, Texas, where District Judge Matthew Kacsmaryk (Amarillo's only federal judge) would hear it.
The case has since been used as a prime example of judge shopping. Kacsmaryksided with the plaintiffs, effectively removing mifepristone from the market.
The FDA appealed, and the Fifth Circuit found that the plaintiffs had standing but were unlikely to succeed in challenging the 2000 and 2019 approvals. However, it did issue an injunction regarding the FDA's 2016 and 2021 actions.
Essentially, the Fifth Circuit didn't ban mifepristone but reinstated its more onerous requirements. The Supreme Court halted the injunction while it considered the case; it was a sign of its ruling to come.
SCOTUS Reverses Fifth Circuit
The Supreme Court ultimately ruled that the plaintiffs lacked Article III standing to challenge the FDA's 2016 and 2021 regulatory actions. Justice Brett Kavanaugh noted in the 9-0 decision that standing requires a concrete injury directly caused by the defendant's actions, which the plaintiffs failed to demonstrate.
The Specifics
Standing is a legal concept meant to prevent courts from adjudicating every policy debate in the country. The idea is that only people who are actually harmed by a certain law or regulation—and can prove that the defendants caused the harm—can challenge it in court.
Otherwise, federal courts would end up getting cases on every new law or regulation passed that someone disagreed with. Policy debates regarding most laws and regulations are the realm of the legislative and executive branches of government, not the judicial.
The plaintiffs in the case argued that they would be harmed by continued access to mifepristone because:
- It might harm their consciences.
- It might harm them financially in that more people might seek emergency room care from its use.
- It makes it harder for pro-life organizations to accomplish their goal of eliminating access to abortion.
None of these were enough to establish standing, Kavanaugh wrote. For the first point, doctors are already protected under federal law from performing abortions if they are pro-life. No doctor is required to provide them.
Secondly, claiming financial harm was speculative and unsupported by the facts. It isn't clear that more people will get abortions because of the FDA's actions or that emergency room visits will increase (it has been used safely for over two decades). Again, no doctor is required to perform an abortion and is free to treat other patients for other conditions. If they are worried about public safety, Kavanaugh noted, they are free to contact Congress.
Finally, organizations must have standing as well. Here, while pro-life organizations may have a sincere and strong disagreement with abortions, a strong disagreement isn't enough. There must be an actual injury.
Narrow Ruling May Be a Sign of Decisions to Come
By holding that the defendants do not have standing, the Supreme Court did not need to discuss any of the other legal issues at play. That the court chose this as a basis for its decision is not surprising, either legally or as a strategic choice.
The mifepristone case arose out of the Fifth Circuit Court of Appeals, perhaps the most conservative federal appeals court in the country. Representing Louisiana, Mississippi, and Texas, the Supreme Court has agreed to hear 10 of its decisions this term. That is second only to the Ninth Circuit, which oversees a much larger geographic area covering nine states, including California.
By not addressing the legal issues, the Court did not have to provide any kind of precedent on abortion regulation, perhaps one reason it was able to reach a 9-0 unanimous holding. It also may be an indication of how the Supreme Court will react to some of the bolder conservative positions taken by the Fifth Circuit, as it did with this case and one several weeks ago upholding the funding for the Consumer Protection Financial Bureau.
What Now?
In its decision, the Supreme Court upheld the status quo. The FDA's regulations on mifepristone remain, and those who had access to the drug will continue to have it. However, in states where it is banned, it will remain so.
In addition, since the justices did not address any of the legal merits of the arguments, the plaintiffs' claims are preserved. Theoretically, a plaintiff with legal standing could bring a similar lawsuit, although it is by no means clear an individual or organization can or will do so at this time.
Related Resources
- Why the Abortion Pill Case May Get Knocked Out (FindLaw's Federal Courts)
- SCOTUS Upholds CFPB's Funding in Controversial Ruling (FindLaw's Federal Courts)
- Why Mifepristone Is on Trial at the Supreme Court
