Standing firm or standing down? The court waffles on abortion drugs

During his 2005 confirmation hearings, Chief Justice John Roberts compared the role of the Supreme Court to that of an umpire calling balls and strikes. But what happens when the umpire allows one team more at-bats than the other? Once again, the much-vaunted conservative Supreme Court is a one-way ratchet for left-wing litigation. Some things never change.

When Donald Trump was president, not a single major administrative policy went unchallenged by the officiously litigious left-wing legal movement. I cannot recall a time when the lefties were denied standing to sue, whether the issue was related to health care, labor, the environment, or immigration. The courts even granted standing to foreign nationals!

If we’re going to follow the old rules from the 1790s, they should be applied equally to everyone.

Fast-forward to last week’s oral arguments in FDA v. Alliance Hippocratic Medicine, when, lo and behold, seven justices appear to believe Texas doctors lack standing to challenge the FDA’s sanction of an abortion drug, which was approved on the absurd pretense that pregnancy is a “serious or life-threatening illnesses.”

The FDA’s actions were clearly unlawful. Regulators approved the drug mifepristone in 2000. They made changes in 2016 and 2021, removing the need for in-person doctor visits as well as limits on how far along a pregnancy could be. The FDA skirted the law in each instance by relying on a regulatory process reserved exclusively for drugs that treat “serious or life-threatening illnesses.”

Even the Population Council, which led the drive for FDA approval of mifepristone in 2000, disagreed with the agency’s process. They said pregnancy is not an illness. They also worried that a court might stop the approval.

Well, it took until April 7, 2023, at the behest of pro-life doctors from Alliance Hippocratic Medicine, for Federal District Judge Matthew Kacsmaryk to rule that the FDA’s approval process was illegal. In a partial reversal, the Fifth U.S. Circuit Court of Appeals ruled that the original approval was OK but that the district court was correct in asserting that the expansions of 2016 and 2021 were unlawful.

Enter the Supreme Court, which in December granted the appeal to reverse the better part of the Fifth Circuit’s ruling but not the part reversing Kacsmaryk. This, as I noted at the time, was an ominous sign.

Last week’s oral arguments were even more ominous. Nobody ever doubted the standing of doctors challenge the approval of a drug they believed to be dangerous and permitted illegally. Niether Kacsmaryk nor the Fifth Circuit judges raised questions about the Alliance doctors’ right to sue over safety concerns. Mifepristone’s manufacturer concedes that between 100,000 and 350,000 (between 2% and 7%) of users required surgery due to an adverse reaction to the drug. The FDA’s own label states that between 2.9% and 4.6% of women will end up in an emergency room.

Yet the three Trump appointees on the high court seemed to agree with the chief justice and three liberal appointees during oral arguments that the doctors should have no standing to sue.

Justice Neil Gorsuch expressed concern about a “rash” of sweeping court injunctions in recent years and that this case may be "a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action." Justices Amy Coney Barrett and Brett Kavanaugh also implied that because the doctors are not forced to prescribe mifepristone, they should have no standing.

I understand the aim to keep courts from making the gravest national decisions. But we can’t accept judges unfairly favoring one political side on who can go to court. If we’re going to follow the old rules from the 1790s, they should be applied equally to everyone. It’s absurd to say doctors can’t challenge the way a risky drug was approved when we’ve allowed court challenges on a wide range of rules.

For example, environmental legal defense groups obtain easy standing to sue against any environmental regulation they believe would result in “aesthetic injury” to practically any random plaintiff asserting he will no longer be able to look at a plant because of some EPA policy.

More to the point, the Supreme Court in 1992 ruled in Lujan v. Defenders of Wildlife: “The desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purpose of standing.” While denying standing to any random bystander in that case, the court said standing would extend to people who work with animals. By the court’s own logic, doctors working with patients should certainly have standing to challenge the approval process of a drug known to send patients to the ER.

Given the option, many of us would tighten the rules of standing. But name a single time these supposedly conservative justices enforced standing rules against absurd cases from the left.

Instead, these jurists continue to accept appeals to overturn good Fifth Circuit decisions while overturning the will of the people of Texas when their government tries to secure the border. Recently, the court, through a cleverly written concurrence by Justice Barrett, got the Fifth Circuit to reverse its decision to allow Texas’s SB4, an immigration enforcement law, to remain in force pending a trial on the law’s merits.

Trump’s three appointees are, to varying degrees, playing both ends of a doctrine to deny conservatives political victories flowing from legal disputes. The examples are now too numerous to count. At some point, we need to ask whether the likes of Kavanaugh and Barrett really have a legal method to their madness or if they are simply jockeying opinions to avoid being tarred as right-wing extremists in their elite social circles.