Chief Justice of the United States John Roberts, Justice Clarence Thomas and Justice Samuel Alito attend a ceremony for the late Supreme Court Justice Sandra Day O’Connor on Dec. 18, 2023. (Jacquelyn Martin-Pool / Getty Images) |
BY SHOSHANNA EHRLICH | A general consensus seems to have emerged after last week’s oral arguments in FDA v. Alliance for Hippocratic Medicine that the Supreme Court is likely to rule that the anti-abortion physicians and their umbrella group, the Alliance for Hippocratic Medicine, lack sufficient legal grounds to challenge the FDA’s 2016 and 2021 loosening of restrictions on the abortion drug mifepristone. Legal standing to bring suit in federal court requires (among other considerations) that the party bringing suit has suffered an actual or threatened injury.
Opposition to abortion does not confer standing, no matter how passionate. Nor is it conferred by “a long chain of remote contingencies,” as Solicitor General Prelogar argued on behalf of the FDA. Notably, these are the twin pillars supporting the plaintiffs’ theory of standing.
As Adam Unikowsky puts it, it relies upon the attenuated possibility that “some woman … might take mifepristone and experience an extremely rare complication. … She might randomly wander into one of the emergency rooms where the plaintiff-doctors work … leaving [them] with no choice but to treat the woman [which] will violate the doctors’ conscience, stress the doctors out or take them away from something else they’d rather be doing.”
Dismissing the lawsuit for a lack of standing would give the Court an off-ramp, without appearing to retreat from the fierce anti-abortion stance that it staked out in Dobbs. It would also prevent creating “chaos in the processes for drug development, approval and modification,” as argued in an amicus brief filed by the pharmaceutical industry, which would create “a shadow of lasting uncertainty over every FDA approval and invite spurious lawsuits challenging FDA’s settled safety and effectiveness determinations.”
While dismissal based on a lack of standing would be a welcome result, it is not a guarantee given the Court’s anti-abortion supermajority. But even if this occurs, the apparent zest manifested by Justices Samuel Alito and Clarence Thomas towards the Comstock Act from 1873 brings a lurking danger fully out into the open.
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