The Supreme Court on Thursday struck down an effort by emergency room doctors to limit access to abortion pills, without eviscerating environmental groups’ power to sue.
In a unanimous decision led by Justice Brett Kavanaugh, the court found that medical associations and individual doctors did not have standing to challenge Food and Drug Administration decisions that made it easier for patients to access mifepristone, a medication used to terminate early pregnancies.
The majority ruling in the cases — FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine — was decided on narrow grounds that simultaneously reinforced the idea that environmental groups still have standing to sue when lands and waters are polluted. Only one conservative justice said he would have revisited a type of standing that helps green groups access the courts.
“From our vantage point,” said Eric Glitzenstein, director of litigation for the Center for Biological Diversity, “when the Supreme Court weighs in on standing these days, less is better.”
Thursday’s ruling is the court’s first major abortion decision since it overturned Roe v. Wade in 2022. The court did not take up FDA’s initial 2000 approval of mifepristone but instead focused on a 2016 approval of the drug for use until 10 weeks of pregnancy and a 2021 decision to end a requirement for in-person dispensing of the medication.
During oral argument in March, the court grilled challengers on their standing to bring the cases. Standing is of particular concern for environmentalists, who fear that conservative jurists may use the theory to shut down their lawsuits.
The issue cropped up when the abortion pills case was before the 5th U.S. Circuit Court of Appeals. A Trump-appointed judge cited environmental standing to support the idea that some people might suffer “aesthetic injury from the destruction of unborn life.”
Kavanaugh took a different tack, citing environmental standing precedent to show that the challengers in the abortion pills case did not meet the established threshold to bring their case to court. Litigants must show that they have or will suffer harm, that the harm was caused by the defendant in the case and that the harm can be addressed by the courts.
Jonathan Adler, director of the environmental law center at Case Western Reserve University, said that the ruling does “tighten the reins” a bit on speculative legal claims about the downstream effects of federal rules.
Kavanaugh compared the abortion pills challengers to medical providers trying to sue over pollution: “EPA rolls back emissions standards for power plants — does a doctor have standing to sue because she may need to spend more time treating asthma patients?”
One member of the court’s conservative supermajority, however, penned a concurring opinion welcoming the opportunity to revisit associational standing, which allows environmental groups to duke it out in court over issues that affect their members.
Justice Clarence Thomas wrote that theory “seems to run roughshod” over judicial power.
It’s notable that no other member of the court joined Thomas’ concurrence, said Robert Percival, director of the environmental law program at the University of Maryland.
“Thomas just can’t help himself,” Percival said.
Continuing the fight
President Joe Biden and Democratic state attorneys general issued statements Thursday praising the Supreme Court’s ruling on abortion pills while cautioning the public that reproductive rights are still at risk.
Biden cited continued efforts to impose abortion bans in states, require patients to travel hundreds of miles for abortion care, and jail doctors and nurses for terminating pregnancies.
“The stakes could not be higher for women across America,” Biden said in a statement.
California Attorney General Rob Bonta, a Democrat, said he remains committed to ensuring that the Golden State is a safe harbor for patients in need of abortion care.
“[T]he fight for reproductive rights across the country is far from over, as anti-abortion extremists stand ready to continue their meritless attacks on mifepristone and access to reproductive healthcare,” Bonta said in a statement. “No matter how many lawsuits they file or challenges they bring, they cannot change the facts: mifepristone is safe and effective — so safe, in fact, that it carries a lower risk of serious complications than taking Tylenol or undergoing a colonoscopy.”
During briefing in the Supreme Court case, one anti-abortion group tried to make the argument that FDA’s decision to expand access to mifepristone had jeopardized vulnerable species.
Environmental scientists have refuted the claims from the Students for Life of America, and the justices did not advance the position during arguments or in their ruling.
Kristan Hawkins, president of the group, said this isn’t the end of their fight.
“Right now, chemically tainted blood, placenta tissue, and human remains are flushed into our waterways in record numbers,” Hawkins said in a statement. “This is a hazard that can harm us. Now, that’s what I call ‘Standing.’ We’ll be back.”
