The Supreme Court that overturned Roe v. Wade will hold a crucial hearing Tuesday on the fate of mifepristone abortion pill access. But the case didn’t need to come this far — and it doesn’t need to go any further.
That’s because the anti-abortion plaintiffs who brought this contrived case don’t have legal standing. If a majority of the court recognizes this plain fact, then the appeal can be resolved on that ground alone, without further thwarting the reproductive rights that the court trashed in its Dobbs decision.
To have standing, people who bring lawsuits need to show that they are — or will soon be — injured in a way that a ruling in their favor can remedy. But the plaintiffs who challenged the Food and Drug Administration’s approval and regulation of mifepristone don’t satisfy that rudimentary requirement.
As the Biden administration pointed out in a brief ahead of the hearing, the anti-abortion doctors and groups who brought the suit “do not prescribe mifepristone, and FDA’s actions allowing other providers to prescribe the drug do not require them to do or refrain from doing anything.”
Nonetheless, the lower courts found standing. The plaintiffs brought the case to a Texas federal trial court where (not coincidentally) they found a sympathetic audience with Donald Trump appointee Matthew Kacsmaryk, who allowed the unprecedented action to proceed. Against all reason, the right-wing 5th U.S. Circuit Court of Appeals said there was standing, too.
Both Kacsmaryk and the 5th Circuit are arguably more extreme than even this Supreme Court — a court that, to be sure, has been inconsistent about standing over the years. But the justices can demonstrate their relative maturity in this instance by rejecting the challenge on that fundamental procedural ground. We may learn at Tuesday’s hearing whether the court is up to this simple task. But we won’t know for sure until we see the ruling, which is likely to come in late June. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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