Abortion Pill Case Highlights Supreme Court Flip on Who Can Sue

Conservative and liberal US Supreme Court justices have flipped their positions on standing over the years, with conservatives now more apt to find it exists in order to allow them to take up challenges to hot-button issues.

The change is evident in how the current conservative-led court has handled student loan forgiveness and separation of powers. The legal battle over the availability of the abortion drug mifepristone presents one of the clearest examples of how the justices can manage procedural questions to get at an issue and obtain desired results, or leave courts out of it altogether.

The standing question in FDA v. Alliance for Hippocratic Medicine and Danco v. Alliance for Hippocratic Medicine, set for argument March 26, asks whether anti-abortion doctors who don’t prescribe medication abortion have legal rights to challenge regulations that make them easier to get.

If the justices find the doctors have grounds to sue, as the conservative US Court of Appeals for the Fifth Circuit ruled, access to the most popular form of abortion could be imperiled nationwide. If not, the use of mifepristone for early-term abortions may continue to go up.

Procedural rules like standing enable the justices “to decide the merits when they want to decide the merits and avoid deciding the merits when they don’t want to decide the merits,” said George Washington University law professor Richard Pierce.

Flipping Sides

Conservative and liberal justices have reversed their positions on standing as the composition of the federal judiciary and the Supreme Court have changed.

Since the liberal Warren Court in the 1960s, the Supreme Court has been pretty centrist, University of California, Davis law professor Ashutosh Bhagwat said.

But the Trump-era ushered in a 6-3 conservative supermajority that’s viewed as one of the most politicized in a long time.

“Historically conservatives tended to use standing to toss out cases because they didn’t like cases that were vindicating civil rights,” Bhagwat said. “Now conservatives are bending over backwards to find standing in order to permit challenges to Obama and Biden administration policies.”

And liberals, who once urged for broad access to federal courts to enforce emerging civil rights, for instance, now caution the public about the risks of an overreaching judiciary.

‘Cases and Controversies’

Georgetown law professor Cliff Sloan, though, said standing doctrine plays a significant role in setting limits on the federal judiciary.

The Constitution’s command that the courts can only decide “cases” or “controversies” is supposed to keep judges from making policy decisions by ensuring that there is an actual dispute between the litigants, Sloan said.

While the principle behind standing is important, the problem is that over the past few decades at the Supreme Court it’s been “applied inconsistently and erratically, and in a way that frequently has a very direct impact on the outcome of the case,” Sloan said.

That’s in part because the terms “cases” and “controversies” is so general, according to Brookings Institution Fellow Scott Anderson. Deciding whether there’s been a sufficient enough legal harm for purposes of standing is somewhat subjective, so it leads judges to a “natural inclination to lean toward particular outcomes for institutional or ideological reasons.”

The result has been a “hodgepodge of case law” where standing in areas like environmental law is harder to establish than in administrative law and others targeted by conservatives, Anderson said.

“It’s a really fraught area,” he said.

Policy Decisions

The criticism, particularly as it pertains to the Supreme Court lately, centers around whether the justices want to reach a particular issue or not, said Heather Elliott, a law professor at the University of Alabama.

That concern is easy to spot when the court gets rid of a meritorious case on standing grounds, Elliott said. But it’s “harder to show when the court is ignoring standing problems” in order to decide an issue it otherwise might not be able to, she said.

Elliott pointed to the court’s 2023 decisions on President Joe Biden’s student loan forgiveness program.

While the justices unanimously refused to consider a challenge by two individual borrowers who didn’t qualify for the loan forgiveness programs in Department of Education v. Brown, a split court found in Biden v. Nebraska that the state of Missouri could challenge the law based on potential harm to a government corporation or entity.

Any harm to that state corporation “is also a harm to Missouri,” the six conservative justices comprising the majority wrote, before finding that the administration’s plans to erase more than $400 billion in student debt went too far.

On the other end of the ideological spectrum, Justice Elena Kagan criticized the majority for its standing decision on student loan forgiveness. At “the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent,” Kagan said in dissent.

Competing Views

Republican-led states led by Missouri have asked to intervene in the mifepristone case, in order to alleviate some of the standing concerns. The federal government opposes that motion, saying the question of state standing injects “new and contested questions” at a late hour.

As for the doctors, the Fifth Circuit said they had “proven up each link in the chain of causation” to show standing.

They’ve shown that a percentage of women will suffer medical complications after taking the drug, that the doctors challenging the FDA regulations treat patients in emergency circumstances, and that providing treatment to those women will cause the doctors to “violate their rights of conscience, sustain mental and emotional distress,” and “divert time and resources away from their ordinary practice,” the Fifth Circuit said.

But in briefs filed Jan. 24, the Food and Drug Administration (FDA) and Danco Laboratories, the maker of the name brand version of mifepristone, argue the doctors don’t have standing.

“They do not prescribe mifepristone, and FDA’s approval of the drug does not require them to do or refrain from doing anything,” the regulating agency said.

Bhagwat said there can be some close cases on whether a party has standing, but mifepristone isn’t one of them.

The “manipulation is so obvious to be beyond doubt,” he said.

The case is Food and Drug Administration v. Alliance for Hippocratic Medicine, U.S., No. 23-235.