The same Supreme Court that overturned Roe v. Wade Two years ago Thursday, he followed well-established constitutional principles in dismissing a lawsuit that sought to restrict the availability of mifepristone, a drug used to medically induce abortions. The bottom line is that the decision upholds the Food and Drug Administration's rules for mifepristone. This is crucial for reproductive rights; An estimated 63% of all abortions in the United States are now medically induced rather than performed surgically.
The mifepristone case should never have gone this far. The drug challenge should have been dismissed by the lower courts, but those courts' staunchly conservative judges, in their desire to restrict abortions, ignored basic rules about who can sue in federal court. We should be grateful that the ultra-conservative 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 did not have standing to bring the lawsuit .
The Food and Drug Administration approved mifepristone as part of a two-drug protocol for inducing abortions in 2000. In 2016, the FDA made the drug more readily available, saying it could be used up to the 10th week of pregnancy instead of only until the seventh. week. The agency also reduced the number of required in-person clinic visits from three to one and allowed nurses to prescribe and dispense mifepristone. Five years later, the FDA removed the requirement that mifepristone be administered in person; It had been the only drug with such a restriction.
In 2022, four anti-abortion groups and several doctors who opposed abortion filed 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 presentation was not accidental. Judge Matthew Kacsmaryk, appointed by President Trump, is a known foe of abortion rights. He wrote a surprising opinion overturning the FDA's approval of mifepristone. It was the first time in history that a judge overturned the FDA's approval of a drug.
A conservative panel of the U.S. Court of Appeals for the Fifth Circuit said Kacsmaryk was wrong to overturn the FDA's approval of mifepristone in 2000, but called the FDA's actions that made mifepristone more available as “arbitrary and capricious.” If the Supreme Court had agreed, it would have been much more difficult for those seeking to terminate an abortion to access mifepristone.
What both the district court and the appeals court ignored was the question of standing. In order to sue in federal court, a plaintiff must demonstrate that the challenged action harms him or her personally, as well as demonstrate that the harm is caused by the defendant and that a favorable decision by the federal court would remedy the harm. Thursday's Supreme Court decision underscored exactly that understanding of standing.
Justice Brett M. Kavanaugh wrote the opinion for the court, clearly stating: “Under Article III of the Constitution, a plaintiff's desire to make a drug less available to others does not establish standing to sue.”
At oral arguments in the case in March, plaintiffs' attorney Erin Hawley suggested that doctors who opposed abortion could be harmed by the FDA's decisions on mifepristone because they might have to perform an abortion if a woman who taking the medication, he arrived in an emergency room with complications. The judges asked if that had ever happened. She couldn't point to a single example. As Kavanaugh wrote in her opinion: “The FDA does not require [doctors] to do or refrain from doing anything.” Additionally, he noted that federal law protects doctors from having to perform procedures that violate their conscience. “Plaintiffs have not demonstrated, and cannot demonstrate, that the FDA's actions will cause them any conscientious harm.”
The court's decision is a relief for those who support abortion rights, but it does not change the reality that overturning Roe v. Wade has led to laws severely restricting reproductive health care, including medically induced abortions, in two dozen states. And there is no doubt that anti-abortion forces will continue to look for ways to try to restrict the availability of mifepristone, including in lawsuits filed by state governments that are already pending.
Erwin Chemerinsky is an Opinion contributor and dean of the UC Berkeley School of Law. His latest book is “Worse than Nothing: The Dangerous Fallacy of Originalism.”
