Good news! Our terrible, terrible Supreme Court has actually done something not-so-terrible: They have uninanimously rejected a challenge to the FDA’s relaxation of some restrictions on mifepristone, one of the drugs used in a medical abortion.
Granted, they did not do this out of the goodness of their hearts, or because they have changed their minds from two years ago and now believe that this kind of thing ought to be a decision left to doctors and their patients, but rather because they determined that the Alliance for Hippocratic Medicine — a supergroup of anti-abortion doctors represented by the Alliance Defending Freedom (ADF) — did not have standing. (They couldn’t show they have been harmed, allowing them to sue.)
But you know what? We’ll take it. It’s a real “I don’t care how you get here, get here if you can” kind of situation.
This is the same challenge to the FDA that Texas nightmare Judge Matthew Kacsmaryk upheld last year, only to have it blocked by the Supreme Court until they were able to weigh in. And now they have.
Justice Brett Kavanaugh, of all people, wrote the unintentionally (I am sure) correct opinion:
[T]he plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA’s actions.
The Court did not buy the doctors’ assertion that they could potentially have their consciences injured by being forced to prescribe the abortion pill, on the grounds that they could not produce anyone who had, in fact, been forced to do that. They also stated that they could potentially be injured by having to use up time and money to care for abortion patients hurt by the pill, but because they could not produce a single instance of this happening, the Court also determined that they did not have standing there, either.
The doctors cite various monetary and related injuries that they will allegedly suffer as a result of FDA’s actions—in particular, diverting resources and time from other patients to treat patients with mifepristone complications; increasing risk of liability suits from treating those patients; and potentially increasing insurance costs. But the causal link between FDA’s regulatory actions in 2016 and 2021 and those alleged injuries is too speculative, lacks support in the record, and is otherwise too attenuated to establish standing. Moreover, the law has never permitted doctors to challenge the government’s loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors’ offices with follow-on injuries. Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions.
Another argument for standing from the plaintiffs was literally that the FDA’s loosening of mifepristone-related regulations has caused them to have to waste their time and money complaining about the FDA’s loosening of mifepristone-related regulations.
They say that FDA has “caused” the associations to conduct their own studies on mifepristone so that the associations can better inform their members and the public about mifepristone’s risks. Brief for Respondents 43. They contend that FDA has “forced” the associations to “expend considerable time, energy, and resources” drafting citizen petitions to FDA, as well as engaging in public advocacy and public education, all to the detriment of other spending priorities.
Finally, they argued that they have standing because no one else has standing. That, incredibly, didn’t fly either.
Because of this lack of standing, the Court determined that"the federal courts are the wrong forum for addressing the plaintiffs' concerns about FDA's actions," and that this is something they will need to take up with the FDA themselves or through legislative means.
[U]nder Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.
So they are free to wander the countryside telling people about how much they don’t like mifepristone, but they can’t use the courts to make it illegal.
What this means is that, for now, at least, the FDA’s science-based rules regarding the abortion pill will remain in place — the pill will still be available up to 10 weeks into a pregnancy, it can be prescribed through telehealth and mailed, and medical practitioners other than doctors will be able to prescribe it.
Hooray!
PREVIOUSLY:
How about this: if judges won't make decisions about my bedroom, I won't masturbate in court
OT: Talking with a Jewish friend this morning about Shavuot. He just texted me this -
𝗖𝗵𝗿𝗶𝘀𝘁𝗶𝗮𝗻𝘀 𝘄𝗮𝗿𝗻𝗲𝗱 𝘂𝘀 𝗮𝗯𝗼𝘂𝘁 𝘁𝗵𝗲 𝗔𝗻𝘁𝗶𝗖𝗵𝗿𝗶𝘀𝘁 𝗳𝗼𝗿 𝟮,𝟬𝟬𝟬 𝘆𝗲𝗮𝗿𝘀 𝗮𝗻𝗱 𝘄𝗵𝗲𝗻 𝗵𝗲 𝘀𝗵𝗼𝘄𝘀 𝘂𝗽, 𝘁𝗵𝗲𝘆 𝘃𝗼𝘁𝗲 𝗳𝗼𝗿 𝗵𝗶𝗺.