The Supreme Court, Abortion, and Standing in an Incoherent Abyss

Tomorrow, the Supreme Court will hear a made-up abortion case brought by anti-choice doctors because they want to do everything imaginable to make sure women cannot use abortion medications in states where abortion is legal. This suit is an attempt to change national policy regarding abortions brought by people who have suffered no injury at all and are unlikely to suffer any injury in the future. Of course, the Fifth Circuit Court of Trump found the plaintiffs had standing and then issued absurd rulings, which the Supreme Court stayed pending its decision in this litigation later this Term.

Given the incoherence and malleability of standing doctrine, anything can happen in standing cases and usually does. Yes, standing is the WWE of constitutional law: all show, no substance. And yet, there are rare extreme cases where the lack of standing is so obvious that reasonable people should agree the Court simply should not hear the case. This dispute is one of those.

The background to this case is well-summarized by SLATE Supreme Court reporters Dahlia Lithwick and Mark Joseph Stern. Here is a summary based on their work:

Most women seeking to terminate their pregnancies now use medication--a protocol that starts with mifepristone, which the Food and Drug Administration approved 24 years ago. (It’s used in combination with misoprostol, which can also terminate a pregnancy on its own.). Study after study after study have shown that this abortion method is safe and effective. The risk of complications from a medication abortion is very low

At first, the FDA required patients to visit their doctor three times over the course of treatment. By 2016 and 2021, however, the agency relaxed this in-person requirement, and today, it allows providers to prescribe the drugs via telehealth and have it mailed to patients with no in-person visit required.

After the Supreme Court overturned Roe and Casey, Alliance Defending Freedom—a far-right non-profit firm that opposes all abortions, filed this lawsuit with the goal of convincing judges to require the FDA to take mifepristone off the market across the country. To manufacture a plaintiff, ADF helped establish the “Alliance for Hippocratic Medicine,” a group of doctors strongly opposed to abortion. This organization was deliberately incorporated in Amarillo, Texas, so it could bring its suit before the one federal judge who sits in Amarillo: Matthew Kacsmaryk. He is a Trump appointee who devoted his life to anti-abortion activism before becoming a judge. 

Kacsmaryk sided with the plaintiffs, surprising no one, and overturned the FDA’s approval of mifepristone in a decision that called into question the entire federal drug approval process (what these people won't do to limit women's choices). His decision would have allowed virtually anyone to object to FDA approval of any drug, for any reason. The Fifth Circuit pared back his order but re-imposed old requirements for the use of the drug, making the abortion medications much more difficult to access. 

The Supreme Court stayed Kacsmaryk’s entire decision. Months later, the Fifth Circuit ignored the Court's strong hint and tried again to put back the old, requirements. The Supreme Court then granted cert and oral argument is tomorrow.  

Every plaintiff in federal court, without exception, must show that they have have suffered an injury caused by the defendant that the court is able to redress. The Supreme Court has said that these requirements come from Article III's case or controversy requirement and are non-waivable subject-matter jurisdiction pre-requisites to federal jurisdiction in every case.

Unfortunately, what constitutes personal injury for standing purposes and whether that injury has been caused by the defendant are entirely malleable concepts that the justices have consistently used and abused to hear cases they shouldn't hear and to not hear cases they should entertain. The doctrine is entirely incoherent. For example, as I wrote years ago in the LA Times:

Abigail Fisher, a white student denied entrance to the University of Texas, was allowed to challenge the affirmative action policies of the university even after she had graduated from another college and admitted she would never again apply to UT. Massachusetts was allowed to sue the Environmental Protection Agency over its failure to issue certain regulations based on the highly speculative claim that the coastline of that state might in the future be damaged by global warming. Environmental groups were allowed to challenge federal limitations on nuclear-power-company liability even though no accident had occurred and the plant in question hadn’t even been built yet.

On the other hand, the Court has issued major decisions denying standing that seem totally at odds with the cases described above (and many more). Reporters and lawyers were not allowed to sue the government when they thought the NSA was illegally listening in on their conversations. Parents of Black school children were not allowed to challenge the IRS's allegedly illegal granting of tax exemptions to racially discriminatory private schools. And, insane as it sounds, the Court denied standing to plaintiffs challenging the donation by the federal government of a valuable piece of real estate to a religious college while allowing similarly situated plaintiffs to challenge the federal government's provision of educational materials to religious elementary and secondary schools. There is no possibility of explaining these and many other standing cases in a coherent fashion. 

And yet, most folks, including Lithwick and Stern, believe the Court will dismiss this case for lack of standing. They may be right, but always remember that standing is nothing less and nothing more than what standing does. There is "no there there," so I'm not as confident as others about what the Court will do.

The doctors claim that, even though they do not perform abortions, someday they are likely to have to treat a patient who suffers complications from abortion drugs, the best medical treatment might be an abortion, and that result will cause the doctors psychological and other harm because of their adamant opposition to abortion. They also claim their time and energy will have to be used to treat these future and hypothetical abortion medication-gone-bad-patients, diverting the doctors' energies from other medical tasks they want to perform.

The fact that their injury has not happened yet does not doom the case for standing purposes. Sometimes, plaintiffs ready, willing, and able to break a law who have good reason to believe they will be arrested for violating a law they think is unconstitutional can sue for pre-enforcement review. But that line of cases has nothing to do with this case. In these circumstances, the plaintiffs must show that their personal harm is "certainly impending," or at least "imminent." 

The doctors' claims are much too speculative to count as personal injury sufficient to justify the Court hearing the case on the merits. They may or may not in the future have to deal with a medical abortion with complications, but who knows? The abortion drugs are safer than Tylenol and Viagra. Most drug- induced abortions are completely safe. Could a doctor challenge how the FDA treats Tylenol by saying someday he may have to treat someone whose liver disease was caused by taking too much Tylenol? The answer is almost certainly no (with the caveat that standing is what standing does). If these doctors have standing, then any doctor would have standing to challenge almost any FDA rule regarding any medicine because no drug is 100% safe. 

Moreover, the source of the doctors' alleged injury is not medical abortions but their obligation under federal and maybe state law to treat patients in emergency room situations with appropriate medical care. If the doctors had the right to simply not treat women with complications from medically induced abortions (not that any sane person would want that result) then they would have no injury because they could simply decide not to treat patients seeking abortions. The FDA's approval of these drugs is simply not the cause of the highly speculative injuries the doctors argue they may possibly, someday suffer.

This lawsuit is really about two major issues that the religious right and the leaders of the Federalist Society and the GOP care deeply about. They want to end all abortions in America and dramatically reduce the administrative state so that big corporations can make more money. Because the conservatives on the Supreme Court seem to largely share those goals, and on the merits this case can further them both, we should not take for granted that the Court will dismiss this case, as precedent should dictate. But if the Court should decide to hear the case on the merits, it will be at least partly due to the incoherent abyss that is standing doctrine.