Thursday saw the first of two opinions on abortion — Food and Drug Administration vs. Alliance for Hippocratic (sic) Medicine.  The Alliance, a misnamed far-right group of doctors worked out a plan to belatedly challenge the FDAs various approvals of mifepristone — a drug commonly used for “medical abortions.”  The existence of this drug imposes a substantial barrier to far right attempts to eliminate abortions.

So conservative activists, represented by Mrs. Senator Hawley, went to their favorite one-judge division controlled in Amarillo, Texas to assure that their case would be heard by the “judge” that they put on the bench who agrees with their lawless approach to abortion.  While this judge gave the hypocritic doctors everything that they want, the Fifth Circuit cut back that ruling — holding that the challenge to the original approval of mifepristone came too late but upholding the judge’s decision to substitute his opinion of the medical facts about the risks associated with mifepristone by the medical experts at the FDA on the more recent changes by the FDA on the precautions that needed to be taken in prescribing mifepristone.

In a unanimous opinion (but with Justice Thomas writing a concurring opinion), Justice Brett Kavanaugh vacated the decisions of the trial judge and the Fifth Circuit.  But, as was always likely with this current batch of justices, the Supreme Court declined to uphold the FDA’s decisions.  Instead, they found that the Alliance and its members lacked standing to bring the case.  For non-lawyers, standing is the legal requirement that a party must be personally harmed by the defendant’s actions, and that you can’t just bring a case because you don’t like what the defendant is doing.  There were certain different theories raised by the Alliance that gave them adequate harm, but the Supreme Court found that none were legally valid.

Primarily, the doctors contended that they might face a situation where any of its members that worked in an emergency might have to perform a surgical abortion due to an “incomplete” mifepristone “abortion.”  But the Supreme Court noted that there is a conscience exception to the requirement that doctors provide emergency room services.  As such, no doctor is ever required to perform a surgical abortion, and merely being put in a position to have to make that decision is not enough to give standing.   To the extent that the doctors contended that they might have to provide some other forms of treatment to a patient who has suffered some side effects of a medication, the Supreme Court concluded that such speculative injuries was not enough to permit doctors to challenge FDA approvals of medication (and such a theory would permit any doctor to seek judicial review of FDA approval of any new drug).

The other two arguments had less merit as they want to the essential nature of standing.  The fact that the organization believes that the decision is wrong and wants to spend resources fighting that decision is not the type of harm that supports standing.  Allowing the Alliance to have that type of standing would allow any political interest group to challenge any decision.  Likewise, the claim that the Alliance should have standing because somebody needs to have standing is not a legally accepted argument.  According to the majority, there might be some decisions that simply do not cause the type of harm that allows anybody to legally challege a wrong decision.  But courts are limited in their purpose, and some things need to be resolved in the political branches.

Justice Thomas’s concurrent is another example of his desire to use his position to rewrite the law.  Current law recognizes the benefits of allowing an organization to bring a case in its own name on behalf of its members.  Justice Thomas believes that the members should be required to be parties instead of the organization.  While, undoubtedly, there are some cases in which members would be unwilling to file on their own, in most case, it is simply easier to allow the organization to bring the case instead of reaching out to find members to serve as nominal plaintiffs.

Technically, it is proper for a court to stop at the issue of standing and not proceed to the merits of the case.  But in recent years, the conservative justices have been more than willing to address additional issues and indicate how they might decide those issues in a proper case.  It would have been nice if three or four justices had commented on how the analysis done by the trial judge and the Fifth Circuit was contrary to the proper review of a regulatory decision.  But the justices who want to protect abortion rights apparently decided to take this narrow win that implied that future challenges would not be any more successful than the current one.  But the door remains open to a new challenge if the Alliance and its members can figure a way to show standing.

There is one more abortion case still pending involving federal regulations of hospitals and doctors and how those regulations interact with an Idaho statute restricting abortion rights.  We will almost certainly get an opinion in that case in the next two weeks but the outlook in that case is not good.