‘Wildly problematic’: Standing, the Supreme Court, and mifepristone

Update: After press time, the Supreme Court ruled 7-2 that mifepristone should remain broadly available while the appeals process continues. Justices Clarence Thomas and Samuel Alito indicated in a dissent that they would not have granted a stay. Our story has been updated to reflect that decision.

For the past week, the U.S. Supreme Court has been considering a contentious case involving the widely prescribed abortion pill mifepristone. The justices decided Friday evening to block a lower court ruling restricting nationwide access to the drug while appeals continue. The stay represented a victory for the Biden administration and the FDA’s core authority to approve and regulate medication.

It’s the first time the court has wrestled with the abortion issue since it struck down Roe v. Wade last June, and the litigation has raised a host of questions beyond just abortion. One central question in the case is whether the justices should be considering it at all.

That question concerns the legal doctrine known as standing. The doctrine limits the jurisdiction of federal courts, per the United States Constitution, to certain “cases” and “controversies.” When a case is brought to a federal judge, standing is the first thing they have to determine.

Legal scholars have criticized the standing doctrine as being too subjective and giving judges too much discretion in deciding which complaints get heard. In recent decades, the Supreme Court has restricted when standing can be awarded. The abortion pill case, however, has reached the justices via some unusually elaborate and tenuous standing arguments on the part of lower courts and anti-abortion groups.

The case has quickly extinguished the hope the court expressed that in overturning Roe last year – a ruling that damaged its credibility with half the country – abortion questions would be left to the states and their elected representatives. The case seeks to ban the use of mifepristone even in states where abortion is legal. And it’s testing the high court’s commitment to one of the judiciary’s core tenets: Where does its jurisdiction end? And does that depend on the issue in question?

The mifepristone case isn’t the only one the justices will rule on this term that critics say has dubious standing. During the oral arguments for the Biden student loan case, the justices themselves debated the question of standing at length.

The mifepristone case “is a little bit of a bellwether,” says Scott Anderson, a visiting fellow at the Brookings Institution. “It’s [not] clear that the sort of strategy coming out of this case, where you see a super bold view of standing out of the [lower courts], that the Supreme Court is” also on board, he adds.

“Something the justices will have to wrestle with”

The intention of standing is to limit the cases federal courts hear to only those in which clear and concrete harms are at stake, prohibiting parties from filing lawsuits to challenge laws or policies they simply don’t like. In the mifepristone lawsuit, the parties differ radically on whether those harms are clear enough.

Brought by a coalition of anti-abortion organizations and physicians against the U.S. Food and Drug Administration, the lawsuit seeks to revoke the approval of mifepristone by the agency. The FDA first approved the drug in 2000, and it is one of two drugs used in medication abortion. More than half of all abortions are now carried out using medication, according to a survey from the Guttmacher Institute.

In the past two weeks, both a federal judge in northern Texas and a three-judge panel of the U.S. Court of Appeals for the 5th Circuit sided against the FDA.

While the District Court stayed the agency’s 23-year-old approval of mifepristone, the 5th Circuit panel narrowed the stay to 2016 FDA actions expanding access to the drug. The standing analyses in both rulings have been consistent, and they have raised eyebrows.

Both lower courts agreed that the physicians – or a member physician in one of the organizations – have standing because they’ve had to, and with “statistical certainty” will continue to have to, give emergency care to women who experience complications after taking mifepristone. The organizations also have “associational standing,” the panel found, because the FDA’s regulatory actions around the drug forced them to divert “time, energy, and resources” away from other activities. 

Critics have warned that such a broad view of standing would allow, for example, emergency room doctors who treat gunshot victims to challenge gun laws, or allow environmental groups to challenge federal actions that damage public land that one of their members may one day want to visit.

This analysis also appears to violate several Supreme Court precedents. And the FDA insists that the injuries related to complications from mifepristone, which has been used by 5.6 million women, are overblown.

The anti-abortion organizations’ standing argument “rests on a wholly misleading portrayal of mifepristone’s well-documented safety record,” the agency writes in a brief to the high court.

“Over the nearly 23 years mifepristone has been on the market,” the agency continues, “respondents purport to identify only ‘three doctors’” who were forced to participate in abortions because of complications. “Three examples from over 20 years of experience would not suggest that any particular doctor faces an imminent threat of such an occurrence.”

Years of Supreme Court precedent narrowing the standing doctrine also seems to have been sidestepped in the lower courts, according to legal scholars and the FDA.

In a 2013 case, Clapper v. Amnesty International, the court ruled that to achieve standing, a threatened injury “must be certainly impending ... and that allegations of possible future injury are not sufficient.” The arguments around organizational standing also appear contrary to a 2009 case, Summers v. Earth Island Institute. In that case, the court wrote that “some day” intentions, “without any description of concrete plans, or indeed any specification of when the [injury] will be, do not support a finding of the ‘actual or imminent’ injury that our cases require.” And in a case two years ago, the court held that “the risk of future harm cannot supply the basis for their standing.”

“The direction it looks like the court is going is one where standing doctrine is narrowed,” says Jonathan Adler, a professor at Case Western Reserve University School of Law. 

“The standing arguments in this case push in the other direction, and that’s something the justices will have to wrestle with,” he adds.

A “squishy” standard?

Standing doctrine is often criticized, even across ideological lines.

Legal scholars have described it as “squishy” and “inconsistent.” A federal judge appointed by former President Donald Trump has described it as “incoherent in theory and easily manipulable in practice.” Even Justice Clarence Thomas, one of the court’s most conservative members, dissented with his liberal colleagues in that 2021 case.

The mifepristone case has given this debate a national spotlight, Mr. Anderson says.

“Standing doctrine is pretty wildly problematic,” he adds. “It’s extremely fact-specific, and extremely [dependent] on subjective judgment in a lot of cases.”

“That’s a big problem for our justice system,” he continues.

The Supreme Court may not follow suit here, “but that reveals the whole problem with standing as a doctrine,” Mr. Anderson adds. “It creates this gatekeeping function where judges can open or close the door depending on if they want to or not.”

Indeed, the mifepristone litigation alone has illustrated the malleability of the standing doctrine.

Hours after the federal judge in Texas stayed the FDA’s approval of mifepristone, a federal judge in Washington state ordered the FDA to make no changes to the status of mifepristone in 17 states and the District of Columbia where abortion is legal. The conflicting order likely accelerated the actions of federal courts in the Texas case, but the Washington ruling also contains some suspect standing analysis.

The judge in the Washington case “issued an order saying the agency can’t do something the agency hasn’t expressed any desire to do,” says Professor Adler. Typically, standing should prohibit parties from using the courts to maintain the status quo.

“The whole thing is just everyone trying to use the courts to advance their particular view of what the right policy should be in this area,” he adds. “And the courts are appearing to go along.”

The judge in Washington also accepted the standing argument that a change in the status of mifepristone would harm the states economically. It’s an argument that Texas and other Republican-led states have used in recent years, particularly in challenging the Affordable Care Act, and while it’s not a slam-dunk, it can make federal policymaking very difficult. 

“It’s kind of unlimited standing,” says Elizabeth Sepper, a professor at the University of Texas School of Law.

“There’s nothing the federal government can do that won’t affect a state economy in some way,” she adds. “It’s a challenge for federal lawmaking if a state can challenge anything the federal government does.”

The cases’ rapid timeline may have exacerbated widespread standing issues in the mifepristone litigation, says Professor Adler. But in another way, the judiciary’s behavior this month echoes the Roe era.

“For a long time conservatives complained, I think correctly, that abortion jurisprudence had a kind of gravitational force on other areas of the law, [bending them] to protect abortion rights,” he adds.

“It would be ironic, to say the least, if the Supreme Court or lower courts were now going to do the same thing in reverse.”