On April 7, US District Court Judge Matthew Kacsmaryk issued an order suspending the FDA’s approval of mifepristone based on a lawsuit filed against the FDA by the Alliance for Hippocratic Medicine — an organization comprising four anti-abortion medical associations, and four anti-abortion doctors. The Court of Appeals for the Fifth Circuit then partially blocked Judge Kacsmaryk’s order, but kept parts of that holding in place, limiting the approved use and distribution of the drug. The decisions from these courts contain multiple errors of law and reasoning, but perhaps the most glaring of these can be found in their holdings that plaintiffs had standing to bring their case.
Standing doctrine, a set of rules courts have constructed to satisfy the constitutional limits on the jurisdiction of the federal judiciary to “cases” and “controversies” only, has long been criticized as being inconsistently and even cynically applied, with some legal scholars calling it “the Rorschach test of federal courts.” This criticism once again rings true when one takes a close look at the recent orders regarding the FDA’s approval of mifepristone in 2000. These holdings are egregious contradictions of well-established rules of standing, a fact that erodes even further the public’s faith in the institutional value of our court system.
In order to have a case heard by a federal court, a plaintiff must first demonstrate to the court that they have standing to bring such a case. The Supreme Court has defined the standing requirement to mean that a plaintiff “must show that (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” The purpose of these rules is to ensure that only those most directly concerned are able to argue their case, that the parties are truly adverse to one another, and that the case is well-defined enough to allow a court to make a fully informed decision. To be effective in this role, the doctrine must be applied neutrally across the entire spectrum of cases that come before federal courts. But this is too often not the case, due in large part to the wide latitude courts have in interpreting the elements of standing.
These circumstances can be readily seen in many privacy cases, as courts have maintained a high degree of skepticism as to whether privacy violations cause sufficient injuries to be cognizable under standing doctrine. For example, in the 2013 case of Clapper v. Amnesty International, the Supreme Court held that a group of journalists and attorneys who argued that increased government surveillance violated their constitutional rights did not have standing, as they could not prove that they were under surveillance (a task made difficult by the secrecy of the government programs), and thus the plaintiffs’ fears were speculative. In 2016, in Spokeo v. Robins, the Court held that a plaintiff suing a “people search engine” under the Fair Credit Reporting Act (FCRA) for disseminating incorrect information lacked standing, as the harm was not sufficiently “concrete,” because the defendant’s failings were merely “procedural violations.” The Court raised the standing bar even further in 2020, when in TransUnion v. Ramirez, they held that even though Congress had provided a private cause of action through a statute such as the FCRA, that alone is not enough to show that a plaintiff has standing to bring a case.
The high bar for standing does not just exist for privacy cases. In City of Los Angeles v. Lyons, the Supreme Court held that a Black man who had been previously subjected to an illegal chokehold by the Los Angeles Police Department did not have standing to block the ongoing use of these chokeholds because it was not sufficiently plausible that he would be subjected to the chokehold in the future. In Lujan v. Defenders of Wildlife, they held that plaintiffs seeking to block US funding of projects overseas due to harms to endangered species in those areas lacked standing because their grievance was general, and they did not each individually suffer a tangible and particular harm. And in Summers v. Earth Island Institute, the Court held that a “statistical probability” of injury is not enough to show standing, noting that to allow otherwise would “make a mockery of our prior cases.” Standing doctrine has thus proven to be a significant obstacle for many plaintiffs seeking relief from our courts, and the list of similar decisions goes on.
Which is why the standing analysis in the two mifepristone decisions is so troubling. The plaintiffs in this case have claimed injury from the continued distribution of mifepristone, arguing that the health risks associated with the drug’s use could “overwhelm the medical system” and “consume crucial limited resources” such as “blood for transfusions” and “physician time and attention.” The plaintiffs’ also claim that they might be made “complicit” if a patient has an extremely unusual reaction to mifepristone, and the doctors might be forced to perform a surgical abortion to save the life of the mother. But these claims are speculative, and are not based on the evidence we have from the 23 years that mifepristone has been on the market. If we apply the same rules articulated above to this case, it would appear that these plaintiffs would fail to demonstrate standing to any federal court.
But the district court judge thought otherwise, holding that the plaintiffs had standing based on their evidence-free allegations of future threats to the medical system. If we apply the rules articulated in Clapper, these claims do not show that the individual plaintiffs personally faced injuries that were imminent, concrete, and particularized. In fact, in the more than two decades since its approval, mifepristone has shown none of the dramatic risks the plaintiffs assert. Further, the district court judge also agreed that the plaintiffs’ claim of future complicity in a surgical procedure to save the life of the mother was also enough to show injury in fact, citing testimony by a small number of doctors alleging past harms. But if we apply the holding in Lyons, the extremely low likelihood that sometime in the future, a woman would take mifepristone, have an extremely unusual reaction to the drug, and will be rushed to a hospital where they happen to be treated by one of the plaintiff doctors is certainly no more likely than a Black man being put in a choke hold by a police department that has already done so in the past. And the holding in Summers tells us that even if the plaintiffs here could assert a statistical probability of future injury, that alone is not enough for standing. Based on existing evidence, the injuries claimed by the plaintiffs here are plainly conjectural and hypothetical.
While the Fifth Circuit’s order partially stayed the district court’s order, they largely agreed with the judge’s standing analysis, further separating this case from well-established precedent. It is especially noteworthy that these courts either fail to cite the Supreme Court cases mentioned above, or when they do, they have either mischaracterized or ignored their holdings. This issue is far from settled, but no matter where this case goes from here, these courts have done damage to our legal system. The rule of law requires that our legal principles be applied evenly to all cases. The motivated reasoning demonstrated by these courts will only serve to further erode our confidence in the judiciary as a source of justice.
Jeffrey L. Vagle is a professor at Georgia State University College of Law, where he teaches privacy law, cybersecurity law, and the law and ethics of technology. His scholarship focuses on issues of privacy, cybersecurity law and policy, and the ethics of technology and innovation.
Suggested citation: Jeffrey L. Vagle, Standing is as Standing Does: What the Mifepristone Rulings Mean for the US Rule of Law, JURIST – Academic Commentary, April 19, 2023, https://www.jurist.org/commentary/2023/04/mifepristone-us-rule-of-law.
This article was prepared for publication by JURIST. Please direct any questions or comments to commentary@jurist.org
