The Supreme Court can resolve the mifepristone abortion pill appeal without having to decide the legality of Food and Drug Administration actions that made the medication more accessible. That’s because the anti-abortion doctors and groups who brought the challenge shouldn’t have been allowed to do so in the first place. They don’t have legal standing.
The Biden administration’s latest brief to the justices points out why the anti-abortion plaintiffs haven’t met that required threshold. In its Tuesday filing, the government notes that the plaintiffs “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 plaintiffs have argued that they could be required to violate their consciences by completing abortions for women who arrive in emergency rooms with complications from the drug. Yet, the plaintiffs haven’t identified an instance of that happening to any of them, even though mifepristone has been on the market for decades.
And the notion that, for standing purposes, doctors suffer an “injury” by having to care for patients is “an unprecedented and limitless theory that would allow doctors to challenge virtually any policy affecting public health,” the government wrote to the justices.
The case will be argued later this term, with a ruling expected by summer.
So will the court that overturned Roe v. Wade take this apparently easy out? It’s difficult to assume so. The court hasn’t been consistent about standing over the years. Look, for example, at the Biden student loan ruling that struck down the president’s plan last year after finding standing with flimsy, motivated reasoning. “A court acting like a court” would have tossed the loan challenge on standing grounds, Justice Elena Kagan wrote in dissent. The mifepristone case gives the court another chance to act like one. 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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