Ahead of the Supreme Court’s mifepristone hearing Tuesday, I wrote that the case should’ve never been allowed in court to begin with. That’s because the anti-abortion doctors and groups who brought the contrived challenge don’t have legal standing. From the hearing, it sounds like the court might actually agree and reject the lawsuit on that ground.
The prospect of that outcome apparently distressed Justice Samuel Alito. In a desperate line of questioning, the Dobbs author searched for any possible way that someone, somewhere could legally attack the drug’s approval and regulation.
“Shouldn’t somebody be able to challenge that in court?” Alito pleaded.
The prospect of that outcome apparently distressed Justice Samuel Alito.
But he didn’t have much company in his quest to save the unprecedented abortion pill challenge. That’s probably because it doesn’t make sense to let people file lawsuits against something just because they don’t like it, which is essentially what happened here. In fact, there are legal rules guarding against that sort of behavior. To bring lawsuits, parties need to show that they’re injured — or soon will be — and that their suit can remedy their claimed injury.
With that basic principle in mind, Justice Ketanji Brown Jackson pointed out the absurdity of what the challengers seek. She noted that if the doctors are opposed to abortion, then the “commonsense remedy” would be to exempt them from the procedure — and federal law gives them such an exemption. But Jackson observed that the plaintiffs want much more than that: They want to prevent anyone from accessing mifepristone at all. So, the justice said, she was “just trying to understand how they could possibly be entitled to that, given the injury that they have alleged.”
The reason that it’s difficult to understand is because it doesn’t make sense. The reason that it’s difficult to understand is because it doesn’t make sense. And Jackson was far from alone in questioning the broad relief the plaintiffs are seeking and their right to bring this suit in the first place, given their apparent lack of standing. Indeed, if the hearing is any indication, a lopsided majority might reject the challenge without even needing to address the merits of the case, such as they are. But whether a Supreme Court opinion will coalesce in that way remains to be seen, with a ruling expected by late June. Even if the court reaches that logical conclusion, that would say more about the extreme nature of the Republican appointees on the lower courts who let the case get this far. 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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