Why Did Justice Alito Join in Rejecting Standing in the Mifepristone Case?

In my essay after the oral argument in FDA v. Alliance for Hippocratic Medicine, I more or less predicted that the Supreme Court would coalesce on a holding that the anti-abortion doctor plaintiffs and their organization lack standing to challenge FDA approvals of wider access to the abortion-pill mifepristone. I imagined that the Court could write a "Christmas tree of an opinion" with something for everyone except Justice Alito--who would consider anything other than full-scale Gilead to be the equivalent of a lump of coal.

Yesterday's unanimous opinion by Justice Kavanaugh mostly vindicates my assessment. That doesn't exactly make me Nostradamus because I was hardly alone in reading the oral argument tea leaves in the way I did. In today's essay, I want to focus not only on how the actual opinion was similar to what I predicted but also on two ways in which it was different: (1) Justice Thomas got one-and-a-half presents, not just the one I thought Santa would bring him; and (2) Justice Alito did not dissent. After some other observations, I'll speculate about how Justice Alito got his own Christmas present after all.

Justice Kavanaugh's opinion is a bit bloated. After a recitation of the facts and procedural history in an Introduction and Part I, we come to Part II, in which Justice Kavanaugh explains the law of standing as though he were writing for an audience of intelligent 11th-graders who had never heard of the Supreme Court. Most of what he says in Part II is completely unnecessary, but it's nonetheless a fair summary of the extant law. Perhaps Justice Kavanaugh is hoping that his opinion will replace older standing cases in the constitutional law casebooks.

Maybe I'm being too churlish. Although Part II isn't necessary, it's a clear and accurate summary of prior case law. More importantly, Part III is persuasive and does pretty much what I predicted it would. Justice Kavanaugh rejects the argument that the plaintiff anti-abortion doctors will be required to perform abortions because, even if they're right that wider mifepristone availability will lead to more emergency abortions, the federal conscience laws enable doctors who have moral objections to refuse to perform abortions.

Justice Kavanaugh also rejects the claim by the plaintiffs that they will suffer various other harms (including being distracted from their other patients) by having to service people who need medical care due to the wider availability of mifepristone. Again, even assuming that's true, as the opinion explains, that hardly gives rise to standing. If it did, then every deregulatory decision of any sort would give rise to standing by third parties indirectly affected, including doctors. To give just one of Justice Kavanaugh's examples, under the plaintiffs' theory, an EPA decision to roll back emissions standards could be challenged by doctors who say that this will lead to more patients with asthma. Overall, the opinion is very effective at showing how far-reaching the plaintiffs' view of standing is and thus why it should be rejected.

In my post-oral-argument essay, I thought that Justice Thomas (and perhaps some other conservatives) might view this case as an opportunity to scale back Havens Realty Corp. v. Coleman, which has language that some courts have construed as allowing an organization to sue based on being injured by having to expend resources monitoring or opposing some allegedly unlawful government action. For example, this was one of the theories for standing of one of the parties in a case alleging that then-President Trump was violating the Emoluments Clause. It's not really surprising that SCOTUS unanimously rejected this theory, which is very expansive. But the Court was going to eventually reject the broad reading of Havens anyway, so the fact that Hippocratic Medicine provided an opportunity to do so doesn't explain why Justice Thomas or Justice Alito would have signed on if they thought the bottom line was wrong.

Now, to be clear, it's possible the decision was unanimous simply because the plaintiffs' case was so weak. But signing on also offered some additional benefits to the farthest-right conservatives beyond overruling Havens. For one thing, it gave Justice Thomas the opportunity to advocate abandoning the longstanding doctrine under which organizations have standing to sue for the injuries of their members, even if the members don't sue individually. In a solo concurrence, Justice Thomas denounced this doctrine as a form of third-party standing (which he dislikes on various grounds).

But why did the Court's most dedicated culture warrior go along? Again, maybe Justice Alito was simply persuaded by the arguments about standing. After all, other things being equal, conservatives prefer a narrow view of standing to a broad one. Nonetheless, whether or not this was a causal factor in the join by Justice Alito (and perhaps Justice Thomas), the outcome of the case is good for Republicans in the November election because it somewhat neutralizes abortion as a voting issue.

This was the front page of The NY Times website yesterday:

No doubt some people who are highly motivated to vote against Republicans because of concerns about abortion access would have gone to the trouble of reading not only the headline ("Supreme Court Maintains Broad Access to Abortion Pill") and the sub-headline ("Justices Unanimously Reject Challenge to Mifepristone") but also the sub-sub-headline ("The court's ruling was focused on standing, and had nothing to do with the safety or morality of the abortion pill.") But even they--upon reading the sub-sub-headline--might think to themselves that even if the rejection of the challenge had nothing to do with the safety or morality of abortion pills, it's still a reason to breathe a sigh of relief that now abortion pills will continue to be widely available, thereby defeating Republicans' efforts to forbid access to them.

If that's how even a sophisticated voter who cares about abortion rights and reads the NY Times but isn't a lawyer thinks, imagine how swing voters or potentially stay-at-home voters probably processed the news they only barely saw in social media or elsewhere: "Oh, the Supreme Court is now protecting abortion rights, so I don't need to vote based on that," they might well conclude. If you think that's an unlikely reaction, consider that in a battleground state poll last month, 17% of voters and 12% of Democratic voters thought President Biden was responsible for Roe v. Wade being overturned. If marginal voters (the kind who decide close elections) hold demonstrably false views about the fundamental question, one can only imagine how they processed what little and confusing news they heard about yesterday's ruling.

And meanwhile, of course, yesterday's decision hardly safeguards access to mifepristone for at least three reasons:

(1) In response to the concern that if the plaintiffs are denied standing no one would have standing, Justice Kavanaugh cites cases stating that this is not a reason to find standing, but he also says "it is not clear that no one else would have standing to challenge FDA's relaxed regulation of mifepristone." So another lawsuit could succeed where the Hippocratic Medicine suit failed.

(2) If Trump wins the election (or is installed in the Presidency by compliant state legislatures and/or Congress), his FDA could rescind the 2016, 2019, and 2021 regulations broadening access to mifepristone. An FDA headed by a Trump toady could even rescind the 2000 approval of mifepristone itself. True, any such actions would be subject to challenge as arbitrary and capricious or otherwise unlawful. Also true, the Court might soon (perhaps as early as less than two hours after this essay is published) overrule the practice of deferring to reasonable agency actions; if it does so, that would make the case for upholding such rescissions more difficult. But a second Trump administration, having learned the lessons of the first one, would likely do a better job of creating a record to ensure its agency actions are upheld by the courts.

(3) Even if FDA approval remains unchanged, red-state laws forbidding mifepristone's distribution and use are already on the books. Such laws are subject to challenge on various grounds, including federal preemption, but the outcome of such challenges is uncertain. Moreover, given the traditional division of authority between FDA (responsible for approving drugs) and state law (responsible for regulating the practice of medicine), it is entirely possible that judges and justices motivated to restrict abortion access could uphold the state restrictions.

Bottom Line: In the short run and from the perspective of people (like me) who want to see broad legal access to mifepristone continue, yesterday's decision was preferable to a ruling that would have upheld the district court's judgment. However, the decision's potential to confuse and demotivate some number of voters could end up undercutting abortion access (and also ending constitutional democracy in America).