The Supreme Court unanimously rejecting a challenge to FDA decisions that made it easier for women to obtain and use mifepristone clearly wasn’t about the Supreme Court protecting access to abortion. (Even though mifepristone is one of the two drugs used in almost two-thirds of all abortions in this country.) Instead, Thursday’s ruling was about the Supreme Court protecting a doctrine that limits access to federal courts.
That ruling also doubled as a rebuke of the most conservative appellate court in the country.
That ruling also doubled as a rebuke of the most conservative appellate court in the country. All nine members of the court felt forced to correct a deeply flawed opinion by the 5th Circuit Court of Appeals that would have eviscerated the court’s standing doctrine. This is the third time in about a year that the high court has had to slap down an erroneous decision on standing reached by judges out of the 5th Circuit. It remains to be seen whether this third reprimand by the Supreme Court will have an effect on the 5th Circuit.
As a legal doctrine, standing demands that individuals or groups who sue in federal courts are the right ones to bring their cases. It requires that plaintiffs demonstrate a concrete and particularized injury that was caused by the action they are complaining of that can be remedied by winning their suits.
This case began when anti-choice doctors and nonprofit medical associations sued to force the FDA to rescind its initial approval of mifepristone or limit its use and availability. The case should have ended shortly after the plaintiffs filed it because, as all nine members of the Supreme Court agreed Thursday, they lacked the standing to bring that suit. But it made it all the way to the Supreme Court because four federal judges — trial court Judge Matthew Kacsmaryk and three members of the 5th Circuit — wrongly let it proceed.
Kacsmaryk incorrectly found that the doctors, who did not themselves prescribe anyone mifepristone, might be forced to treat women who were given mifepristone by another health care provider and had suffered a rare side effect. His decision flew in the face of the fact that federal conscience laws allow doctors to opt out of providing medical treatment, including abortions, that violate their consciences. Kacsmaryk found that the medical associations had standing on the theory that their members are doctors who, again, might be forced to treat women who experience rare side effects from taking mifepristone. If Kacsmaryk’s theory of standing were allowed to, well, stand, then it would have essentially allowed any doctor to challenge any action by the FDA.
Three conservative judges on the 5th Circuit agreed with Kacsmaryk’s conclusion that the doctors and medical associations had standing to sue. That’s the truly remarkable part of this case. They should have known better. And a unanimous ruling from the Supreme Court on Thursday is a reminder that not even the staunch abortion opponents on the high court agreed with what they did.
This isn’t the first time the Supreme Court has unanimously reversed the 5th Circuit’s erroneous conclusion that plaintiffs espousing conservative views have standing to sue. To repeat, it’s the third time since June 2023.
This isn’t the first time the Supreme Court has unanimously reversed the 5th Circuit’s erroneous conclusion that plaintiffs espousing conservative views have standing to sue.
Last year the Supreme Court unanimously reversed the 5th Circuit’s decision that two individuals who obtained student loans, but did not qualify for the maximum amount of relief under President Joe Biden’s student loan relief program, had standing to sue the Department of Education. The high court concluded the individuals could not demonstrate that “their purported injury of not receiving loan relief” was “fairly traceable” to actions taken by the secretary of education.
Also last year, the high court reversed the 5th Circuit’s conclusion that certain plaintiffs had standing to challenge aspects of the Indian Child Welfare Act. The Supreme Court’s unanimous decision Thursday reiterates that those who seek to go to federal court have experienced an actual injury that can be addressed by that federal court. But this explanation only needs to be stated again because judges in the 5th Circuit have attempted to undermine that doctrine to allow specious suits to move forward. Yes, the Supreme Court’s expected decision in this case is a victory for those who seek to prevent the rollback of access to mifepristone. But mostly this case is a stinging rebuke to lower court judges who ruled the individuals and groups who sued to halt the distribution of mifepristone were the appropriate parties to bring suit. It’s time the 5th Circuit stopped allowing plaintiffs with no real injuries to bring their complaints to federal court. They may think they’re helping advance conservative causes, but when even the conservatives on the Supreme Court keep signaling that they’re doing wrong, they need to start listening.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
