Standing for babies

The Supreme Court unanimously ruled Thursday morning that pro-life physicians do not have standing to sue the Food and Drug Administration over its regulation of the abortion drug mifepristone. 

“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” Justice Brett Kavanaugh wrote in the majority opinion. “But … 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.”

Planned Parenthood staffer Hope Johnston-Holm stood outside of the court in the first hours after the ruling. She said she was excited to hear of the opinion, telling WORLD the unanimous decision from the conservative-majority court surprised her. “I think this is something that everyone should be able to support no matter what party affiliation you have,” Johnston-Holm said. “There is something about having control over your own body that everyone can get behind.”

But, while the court did end the legal challenge brought by pro-life physician groups and individual doctors, the opinion itself had almost nothing to do with the abortion drug. It did not rule on the doctors’ arguments that the FDA was wrong to scrap its safety requirements for the distribution of mifepristone and allow abortion pills to ship by mail-order. Pro-lifers say that leaves the door open for other parties to challenge the legality of the FDA’s loose restrictions on the drug.

“Abortion advocates are going to claim a great victory for abortion drugs,” Thomas Jipping, senior legal fellow for The Heritage Foundation, said of the ruling. “This has nothing to do with whether abortion drugs are safe. They’re not.”

He said the court’s move to reject the standing of the pro-life doctors did not surprise him. “Everyone has known all along that legal standing to try to hold the FDA accountable would be a difficult argument to make. These are pro-life doctors, and so they don’t prescribe mifepristone. So their argument that they may sue over it is a little more complicated.”

Even the court’s unanimous agreement in the case, he said, points to the fact that the ruling was focused on more technical, procedural matters rather than on arguments at the core of the lawsuit. A ruling on the merits of such a case is less likely to be unanimous.

Alliance Defending Freedom senior counsel Erin Hawley, who argued the case before the Supreme Court in March on behalf of the pro-life doctors, spoke at a news conference following Thursday’s ruling. “The decision based on a legal technicality allows the FDA to continue its reckless disregard for women’s health, at least for now,” she said.

But Hawley celebrated that the justices’ ruling was “crystal clear that pro-life doctors do have federal conscience protections, even in emergency situations.” The ruling affirms that physicians do not have to participate in abortions if it goes against their convictions, she said.

She also pointed out that the court did not dismiss the lawsuit altogether. Missouri, Idaho, and Kansas intervened in the case in the lower courts and will likely continue the legal challenge against the FDA. “Those states remain in the case,” Hawley said. She expects litigation to continue, with the states raising standing arguments different from those made by the pro-life plaintiffs. Hawley said she is hopeful the FDA will eventually have to answer for its lack of safety requirements on the drug.

Some pro-lifers have in mind other avenues for future legal challenges against the FDA. Michele Hendrickson, director of strategic initiatives at Students for Life of America, held a sign that read “Chemical Abortion Kills” as she stood with other members of the group outside of the court Thursday morning. She said that her organization regularly works with women who have been hurt by chemical abortion, and she’s hopeful that women who have suffered those harms will bring their own challenges against the FDA.

“As soon as we have more women who we know have been harmed by chemical abortion, who can now come forward and be able to plead that case, I believe that we’ll see more cases like this,” Hendrickson said. “We know women are out there. They just need to be given that voice and that ability.”

—With reporting from Carolina Lumetta in Washington, D.C.