Legal Docket: A case of standing

NICK EICHER, HOST: It’s The World and Everything in It for this 1st day of April 2024. We’re so glad you’ve joined us today! Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

You’ve no doubt heard about the big case argued last week on the abortion pill Mifepristone, the case titled Food and Drug Administration versus Alliance for Hippocratic Medicine.

The court gave about 90 minutes to it but the argument never really got to the merits. Instead, it was mainly about whether the Alliance has legal standing to bring the case in the first place. If not, nothing else matters. At least where this one case is concerned.

All this is separate from the larger issue of what party would ever have standing to challenge the FDA over one of its highly consequential decisions.

EICHER: We’ll get to the meaning of standing in a minute.

But let’s begin with a review of the facts.

It was the final year of the Bill Clinton administration, the year 2000, and the Food and Drug Administration had approved the drug Mifepristone as effective at killing children 30-plus weeks before they’re born.

The FDA did place many precautions around its use at that time, mainly for the safety of the aborting mother.

But the agency removed those precautions over the last few years. The FDA expanded use of the drug from 7 weeks of pregnancy to 10. It allowed nonphysicians to prescribe it. And it did away with follow-up visits.

REICHARD: Then in 2021, the FDA removed the requirement for an initial, in-person visit with a doctor. That visit is the one in which a woman is screened for life-threatening conditions like ectopic pregnancy, and it’s the time that her unborn child is assessed for gestational age.

That last part is especially important, because the more developed the unborn child, the riskier chemical abortion is for the woman.

But with these relaxed standards women can receive mifepristone in the mail or pick it up at a pharmacy without ever visiting a doctor.

EICHER: More availability, of course, means more use, and more use statistically means more women having complications. So when they wind up in the hospital, it falls on emergency-room staff to manage the caseload. And many of those medical attendants and doctors have conscience objections to abortion.

One of them is Dr. Christina Francis, a board certified OB GYN and CEO of the American Association of Pro-Life Obstetricians and Gynecologists.

REICHARD: So I called her up because her group is part of the Alliance for Hippocratic Medicine, a named party in this lawsuit. The Alliance has 30,000 members from the medical profession.

Dr. Francis was in the courtroom listening to the oral arguments.

CHRISTINA FRANCIS: … trying to get the justices to understand the position that, you know, that we are in this emergency situation where we cannot excuse ourselves because we have an obligation. We took an oath to care for patients, regardless of their circumstances and and to promote health and to promote life. And now we are being forced by this governmental agency to participate in completing a process that the abortion providers should be completing. Not us. That's why I feel very strongly that we have standing for this case.

So now to the legal question of standing.

To help explain that, I also called up Brad Jacob. He’s associate dean and professor at Regent University School of Law. He also served as a judge in moot court sessions to help prepare the doctors’ lawyer for oral argument.

BRAD JACOB: Standing goes back to Article Three of the Constitution, which says that federal courts can only hear a case or controversy, and part of that is the doctrine of standing. And standing says the plaintiff in the case has to have suffered a real personal injury, something that’s specific to that person or corporation or entity or whatever it is that’s bringing the lawsuit. But it can't just be everybody's harmed, that doesn't give you standing.

EICHER: So, to have legal standing means first that you have a specific legal injury. Second, that you can trace the cause of that injury to the party you’ve sued. And a third thing: remediability. That means the court can remediate, or provide a remedy to right the wrong.

For Dr. Francis, it’s clear to her that she has at least the first two elements of standing: an injury to herself, and a cause she can point to:

FRANCIS: The FDA said women can just go to the emergency room. Those doctors will complete the abortion. And so the FDA has set us up to have to do this thing that we have a moral opposition to …

REICHARD: Moral opposition aside, the justices looked for that third element of the standing equation: a remedy.

Here’s Justice Ketanji Brown Jackson to the government lawyer defending the FDA’s actions. When you hear Justice Jackson use the term “Respondent” she’s referring to the pro-life doctors.

JUSTICE JACKSON: So I'm worried that there is a significant mismatch in this case between the claimed injury and the remedy that's being sought and that that might or should matter for standing purposes. … the injuries that the Respondents allege…are conscience injury, that they are being forced to participate in a medical procedure that they object to. And so the obvious common-sense remedy would be to provide them with an exemption, that they don't have to participate in this procedure. And you say… federal law already gives them that. So I guess then what they're asking for in this lawsuit is -- is more than that. They're saying, because we object to having to be forced to participate in this procedure, we're seeking an order preventing anyone from having access to these drugs at all.

Argument then turned toward how many women actually end up in the ER, such that mifepristone ought to be more restricted.

Listen to Chief Justice John Roberts address the lawyer for the company that makes the drug.

In this exchange, the first voice you’ll hear is the chief and the second is attorney Jessica Ellsworth who will cite the so-called Clapper precedent on the issue of standing.

JUSTICE ROBERTS: I mean, what percentage of adverse consequences would be enough? What percentage of emergency room visits would be enough?

ELLSWORTH: I think the way Clapper got at that question is to really think about whether there is an attenuated chain of contingencies that have to happen. And in situations where there is this kind of attenuated chain of circumstances involving third party decisions that have to play out in a particular way, and here, that chain is quite long, that squarely puts plaintiff’s theory on the side of the conjectural or hypothetical and not the certainly impended injury.

EICHER: To Dr. Francis, there’s nothing conjectural or hypothetical about her own experience, and the numbers from the Guttmacher Institute back her up. That’s a pro-abortion research group:

FRANCIS: …that was one of the most frustrating things for me to hear. All you have to do is look at the FDA’s own words. So the FDA says that one in 25 women who take these high risk drugs will end up going to the emergency room. One in 25. So Guttmacher just released abortion numbers for 2023. As you know, unfortunately, the number of abortions went up in 2023. And the proportion of those that were done via these drugs went up to 63%. So that equates to roughly 650,000 chemical abortions done in the U.S. in 2023. If you take one in 25 of those that means over 25,000 women would have been expected to have gone to the emergency room last year alone because of these drugs. That is not an inconsequential number.

… further placing a burden upon emergency rooms, and medical workers who have to complete abortions, in violation of their consciences.

But what does it mean to be burdened in that way? Again, Dr. Francis:

FRANCIS: If their abortion is not completed, that means they're coming in heavily bleeding, hemorrhaging with life threatening infections, and, and not to get too graphic. But again, I think people need to understand what this means. They're coming in with parts of their babies left inside of them, parts of their placenta is left inside of them. And we, those of us in the hospitals, are having to go to the emergency room and complete the induced abortion, because the woman in front of us is unstable, also grieving us significantly that we’re seeing more and more women who have not been adequately counseled being harmed and damaged by these drugs.

Later on, Justice Jackson questioned how harm to women harms doctors and how the FDA’s approval of mifepristone without safeguards harms them as well.

Here’s an exchange between Justice Jackson and Erin Hawley, lawyer for the doctors. Hawley had argued both a narrow, specific harm, that is, taking the life of the unborn, and a harm that is more broad:

JUSTICE JACKSON: Okay. So what's the broader one?

HAWLEY: So the broader one, Your Honor, is being complicit in the process that unnecessarily leave (sic) uh, takes an unborn life such as performing a D&C and abortion. And it’s really not that hard to see.

JACKSON: No, wait, I’m sorry. Complicit like I work in the ER and this is going on? I’m handing them a water bottle? I’m like, what do you mean “complicit in the process?”

HAWLEY: So this court of course takes religious beliefs and conscience beliefs as it finds them…

REICHARD: Hawley going on to say it’s still a conscience violation to have to complete an abortion—regardless of whether the drug worked and killed the child. That’s complicity in a morally repugnant procedure.

Justice Samuel Alito questioned the motives of mifepristone’s maker, Danco Laboratories. If the restrictions on the drug that are now on hold are lifted, what’s in it for Danco? Listen to this exchange with Ellsworth:

JUSTICE ALITO: So you're going to make more money?

ELLSWORTH: The -- the injury is that we are prevented from selling our product in line with FDA's scientific judgment about the safe and efficacious use of the drug.

ALITO: And you're going to be harmed because you're going to sell more?

ELLSWORTH: I think that certainly a company's ability to market its product is a part of how it considers the regulatory scheme that governs its conduct.

ALITO: During the questioning of the Solicitor General, the statement was made that no court has ever previously second-guessed the FDA's judgment about access to a -- to a drug, right? It's never second-guessed that?

ELLSWORTH: That -- that's correct.

ALITO: Do you think the FDA is infallible?

ELLSWORTH: No, Your Honor, we don't think that at all. And we don't think that question is really teed up in any way in this case.

EICHER: Teed up or not, reining in federal agencies is definitely on the court’s radar this term. And not having anyone to sue when the FDA runs afoul of agency procedures seemed to bother some of the justices. And it’s likely the FDA did not rightly follow the Administrative Procedure Act.

Yet Justice Neil Gorsuch raised what seemed to be the view of at least five, maybe more, of the court:

JUSTICE GORSHUCH: We have before us a handful of individuals who have asserted a conscience objection. … And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on on an FDA rule or any other federal government action. Thoughts?

HAWLEY: Yes, Your Honor. Again, I have to say that I think it's impracticable to -- to raise a conscience objection.

REICHARD: Because, as Dr. Francis explained, emergency rooms are full of, well, emergencies. And finding substitute doctors who don’t object to abortion isn’t always an option. So even though federal law provides for conscience protections for medical workers, it isn’t always practically possible.

Listening to the arguments, I came back to an inconvenient fact of the law: the need to establish standing. And if the high court doesn’t find standing in this case?

Well, here’s professor Brad Jacob:

BRAD JACOB: Of course, we’d like to say unborn children are harmed, but they’re not going to get standing. And the women who use the drug are using it voluntarily so there’s an assumption of risk. They chose to do it. Nobody made them use the drug. And so this may be a tricky case. If the doctors don’t have standing, I’m not sure who does. You either have to find a different plaintiff who has standing, or you’re just out of luck. There are times that the government does something wrong and there’s just nobody who can challenge it …

… which is at the core of other cases on the docket this term, getting at long-standing deference to unelected administrative agencies and the possibility that the court may fix that by promoting political accountability.

Because if you can’t hold the government accountable in court you need to be able to do so at the ballot box. The only other option is too terrible to contemplate.

That’s this week’s Legal Docket!

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