SCOTUS Says Docs, Orgs Lack Standing to Challenge Mifepristone

The Supreme Court ruled today in FDA v. Alliance for Hippocratic Medicine that doctors and organizations lack standing to challenge FDA's relaxation of regulations on the use of Mifeprex, the brand-name for mifepristone--the second of a two-drug regime to end pregnancies. The ruling means that mifepristone can stay on the market, along with the FDA's actions that make it more easily accessible.

FDA originally approved Mifeprex in 2000, with certain restrictions on its use. FDA relaxed those restrictions in 2016 and again in 2021--allowing the drug's use up to 10 weeks of pregnancy, allowing healthcare providers other than doctors to prescribe it, requiring just one in-person visit, and, in 2021, dropping the in-person visit requirement entirely.

A group of pro-life doctors and organizations sued FDA, arguing that the Agency improperly approved the drug and relaxed the standards for its use. As their basis for standing, the doctors claimed that FDA's actions would cause patients to suffer harms from using the drug, and that the doctors would have to treat them. The organizations said that they had to divert resources to provide their members with safety information about the drug.

The Court ruled today that those plaintiffs lacked standing. The Court said that the doctors lacked standing on the groud that FDA's actions caused conscience injuries to them. The Court noted that doctors could avoid "conscience injuries" by declining "to perform or assist" an abortion under federal conscience laws. It wrote that the doctors lacked standing on the ground that the doctors would have to divert their time and efforts with other patients in order to serve patients who suffered harm from mifepristone, because the causal link between FDA's actions and this "harm" was too attenuated. The court said that the organizations lacked standing in their own right on the ground that they had to divert resources, because "an organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action."

The ruling was unanimous. Justice Thomas wrote a concurrence, arguing that the Court should "explain just how the Constitution permits associational standing" at all, but in a different, appropriate case.