The mifepristone case never should have gotten this far. The challenge to the drug should have been dismissed by lower courts, but the staunchly conservative judges on those courts, out of their desire to restrict abortions, ignored basic rules about who can sue in federal court. We should be thankful that the ultraconservative Supreme Court led by Chief Justice John G. Roberts Jr. recognized the error made by the lower courts and unanimously dismissed the case because the plaintiffs had no standing to bring the suit.
The Food and Drug Administration approved mifepristone as part of a two-drug protocol to induce abortions in 2000. In 2016, the FDA made the drug more easily available, saying it could be used until the 10th week of pregnancy rather than just to the seventh week. The agency also reduced the number of required in-person clinical visits from three to one, and allowed nurse practitioners to prescribe and dispense mifepristone. Five years later, the FDA eliminated the requirement that mifepristone be administered in person; it had been the only drug with such a restriction.
In 2022, four antiabortion groups and several doctors who opposed abortion brought a lawsuit challenging the FDA’s approval of mifepristone. They filed their lawsuit in the Amarillo division of the U.S. District Court for the Northern District of Texas where there is only one federal judge. The filing was not accidental. Judge Matthew Kacsmaryk, who was appointed by President Trump, is a well-known foe of abortion rights. He wrote a stunning opinion overturning the FDA’s approval of mifepristone. It was the first time in history any judge had overturned the FDA’s approval of a drug.
A conservative panel of the U.S. Court of Appeals for the 5th Circuit said that Kacsmaryk erred in overturning the FDA’s 2000 approval of mifepristone, but it called the FDA’s actions making mifepristone more available “arbitrary and capricious.” If the Supreme Court had agreed, it would have been much more difficult for those wishing to terminate abortions to have access to mifepristone.
What both the district court and the court of appeals ignored was the issue of standing. In order to sue in federal court, a plaintiff must show that he or she is personally injured by the action being challenged, as well as showing that the harm is caused by the defendant, and that a favorable federal court decision would remedy the injury. The Supreme Court’s decision Thursday exactly underlined that understanding of standing.
Justice Brett M. Kavanaugh wrote the opinion for the court, plainly declaring: “Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”
At the oral arguments in the case in March, the attorney for the plaintiffs, Erin Hawley, suggested that doctors opposed to abortion could be harmed by the FDA’s mifepristone decisions because they might have to perform one if a woman who took the drug arrived in an emergency room with complications. The justices asked if that had ever happened. She couldn’t point to a single example. As Kavanaugh wrote in his opinion: “The FDA is not requiring [doctors] to do or refrain from doing anything.” Moreover, he noted that federal law protects doctors from having to perform procedures that violate their conscience. “Plaintiffs have not shown — and cannot show — that the FDA’s actions will cause them to suffer any conscience injury.”
The court’s decision is a relief for those who support abortion rights, but it does not change the reality that overruling Roe vs. Wade has led to laws severely restricting reproductive healthcare, including medically induced abortions, in two dozen states. And there is no doubt that antiabortion forces will continue to look for ways to try to restrict the availability of mifepristone, including in lawsuits brought by state governments that already are pending.
Erwin Chemerinsky is a contributing writer to Opinion and the dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing : The Dangerous Fallacy of Originalism.”