WASHINGTON, DC – Pro-life doctors lack standing to challenge Biden’s abortion pill mandate, the Supreme Court unanimously held Thursday — but paved the way for Republican-led states to challenge the mandate — and the decision is a win for religious liberty, affirming that pro-life doctors cannot be forced to participate in abortion.
The Food and Drug Administration (FDA) in 2016 and 2021 — under Democrat Presidents Barack Obama and Joe Biden — relaxed regulatory access to mifepristone, an abortion drug that can be taken to cause an early abortion.
Boxes of the drug mifepristone sit on a shelf at the West Alabama Women’s Center in Tuscaloosa, Alabama, on March 16, 2022. (AP Photo/Allen G. Breed)
In a 9-0 opinion, the Supreme Court held that the pro-life doctors lacked standing to sue and thus did not decide whether or not the regulation is illegal.
“Several pro-life doctors and associations sued FDA, arguing that FDA’s actions violated the Administrative Procedure Act. But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything,” Justice Brett Kavanaugh began for the court. “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.”
“The threshold question is whether the plaintiffs have standing to sue under Article III of the Constitution,” the unanimous opinion noted. “Article III standing is a bedrock constitutional requirement that this Court has applied to all manner of important disputes. Standing is built on a single basic idea — the idea of separation of powers” in the Constitution.
Anti-abortion advocates demonstrate prior to an Arizona House of Representatives session at the Arizona State Capitol on April 17, 2024, in Phoenix, Arizona. (Rebecca Noble/Getty Images)
“For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a personal stake in the dispute,” Kavanaugh explained. “The requirement that the plaintiff possess a personal stake helps ensure that courts decide litigants’ legal rights in specific cases, as Article III [of the Constitution] requires, and that courts do not opine on legal issues in response to citizens who might roam the country in search of governmental wrongdoing.”
Explaining that the constitutional concept of standing means courts will not act like “a debating society,” the opinion explained, “By limiting who can sue, the standing requirement implements the Framers’ concept of the proper — and properly limited — role of the courts in a democratic society.”
The court recounted the basic constitutional framework for a plaintiff to have standing to sue in federal court:
The fundamentals of standing are well-known and firmly rooted in American constitutional law. To establish standing, as this Court has often stated, a plaintiff must demonstrate (i) that she has suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and (iii) that the injury likely would be redressed by the requested judicial relief.
“An injury in fact can be a physical injury, a monetary injury, an injury to one’s property, or an injury to one’s constitutional rights,” Kavanaugh observed. “Moreover, the injury must be actual or imminent, not speculative — meaning that the injury must have already occurred or be likely to occur soon.”
U.S. Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing in in the East Room of the White House October 08, 2018, in Washington, DC. (Chip Somodevilla/Getty Images)
“By requiring the plaintiff to show an injury in fact, Article III standing screens out plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action,” he added. “For example, a citizen does not have standing to challenge a government regulation simply because the plaintiff believes that the government is acting illegally.”
The court waxed eloquent on that point, going on to say:
The injury in fact requirement prevents the federal courts from becoming a vehicle for the vindication of the value interests of concerned bystanders. An Article III court is not a legislative assembly, a town square, or a faculty lounge. Article III does not contemplate a system where 330 million citizens can come to federal court whenever they believe that the government is acting contrary to the Constitution or other federal law. Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.
“Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone,” the court said, applying standing principles to the plaintiffs in these consolidated cases. “But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything.”
“The plaintiffs have not identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience,” the court noted.
Anti-abortion activists celebrate in response to the Dobbs v Jackson Women’s Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. (Brandon Bell/Getty Images)
Then the opinion shifted gears, delivering a significant win for religious liberty regarding EMTALA, which is the federal law requiring emergency rooms to provide medical care with regard to the patient’s ability to pay. The pro-life doctors here expressed concern that the abortion pill mandate could force them to give these pills in the ER.
“EMTALA does not require doctors to perform abortions or provide abortion-related medical treatment over their conscience objections because EMTALA does not impose obligations on individual doctors,” the court decided. “We agree with the Solicitor General’s representation that federal conscience protections provide broad coverage and will shield a doctor who doesn’t want to provide care in violation of those protections.”
The states of Missouri, Kansas, and Idaho may bring their own challenges to the abortion pill mandate, as the Supreme Court’s decision left open the possibility that others — perhaps states — might have standing to sue.
The consolidated cases are FDA v. Alliance for Hippocratic Medicine and Danco v. Alliance for Hippocratic Medicine, Nos. 23-235 & 23-236 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.
