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Supreme Court Flips on Who Can Sue in Abortion Pill Case

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Law News – Over time, the opinions of conservative and liberal US Supreme Court justices have changed on standing; conservatives are now more likely to believe that standing exists so they can take up cases involving contentious subjects.

The way the current conservative-led court has handled the separation of powers and student loan forgiveness is a clear indication of the shift. One of the best illustrations of the justices’ capacity to use procedural questions to address a case and reach a decision, or to keep the courts out of it entirely, is the legal struggle around the availability of the abortion medication mifepristone.

The topic of standing in FDA v. Alliance for Hippocratic Medicine and Danco v. Alliance for Hippocratic Medicine, which are scheduled for oral argument on March 26, concerns the ability of physicians who oppose abortion but do not recommend medicine to legally challenge laws that facilitate access to abortion services.

Access to the most common type of abortion might be threatened nationally if the justices decide that the physicians have a valid lawsuit, as the conservative US Court of Appeals for the Fifth Circuit decided. If not, mifepristone use for early-term abortions may keep rising.

Richard Pierce, a law professor at George Washington University, said that procedural rules such as standing allow the justices “to decide the merits when they want to decide the merits and avoid deciding the merits when they don’t want to decide the merits.”

Swapping Out Sides

When the makeup of the federal judiciary and the Supreme Court has changed, conservative and liberal justices have shifted their stances on standing.

According to Ashutosh Bhagwat, a law professor at the University of California, Davis, the Supreme Court has tended toward centratism ever since the Warren Court’s liberal rulings in the 1960s.

However, the Trump administration brought about a conservative supermajority of 6-3 that is seen to be among the most political in recent memory.

According to Bhagwat, conservatives have a history of using standing to reject lawsuits because they disagree with rulings that upheld civil rights. “At this point, conservatives are going to great lengths to establish a legal basis for challenging the policies of the Obama and Biden administrations.”

Liberals have also warned the public about the dangers of an overreaching judiciary, having previously called for widespread access to federal courts to uphold newly developing civil rights.

“Cases and Disputations”

Cliff Sloan, a law professor at Georgetown University, asserted that standing theory is a key factor in limiting the authority of the federal judiciary.

According to Sloan, the Constitution’s requirement that courts only hear “cases” or “controversies” is meant to prevent judges from deciding on matters of public policy by guaranteeing that there is a legitimate disagreement between the parties involved.

The issue is that, despite the significance of the standing doctrine, it has been “applied inconsistently and erratically, and in a way that frequently has a very direct impact on the outcome of the case” at the Supreme Court during the previous few decades, according to Sloan.

Part of the reason for this, according to Brookings Institution Fellow Scott Anderson, is the broad definition of “cases” and “controversies.” Because courts must make a somewhat subjective decision about whether there has been enough legal injury to qualify for standing, they have a “natural inclination to lean toward particular outcomes for institutional or ideological reasons.”

According to Anderson, this has led to a “hodgepodge of case law” in which it is more difficult to establish standing in fields like environmental law than in administrative law and other fields that conservatives have targeted.

It’s a really sensitive area, he declared.

Policy Choices

According to Heather Elliott, a law professor at the University of Alabama, the criticism, especially with regard to the Supreme Court lately, is focused on the justices’ desire to achieve a certain decision.

Elliott stated that it is simple to identify this worry when the court dismisses a good case for procedural reasons. However, she noted that it is “harder to show when the court is ignoring standing problems” in order to resolve a matter on which it may not otherwise be able to.

Elliott cited the court’s rulings from 2023 about the student loan forgiveness initiative of President Joe Biden.

In Biden v. Nebraska, a split court determined that the state of Missouri could challenge the law based on potential harm to a government corporation or entity, even though the justices in Department of Education v. Brown unanimously declined to consider a challenge by two individual borrowers who were ineligible for the loan forgiveness programs.

The majority’s six conservative justices stated that any loss to that state company “is also a harm to Missouri” before concluding that the administration’s proposals to write off more than $400 billion in student debt went too far.

Justice Elena Kagan, on the other hand, expressed disagreement with the majority’s decision to uphold the status quo on the forgiveness of student loans. In dissent, Kagan stated that the majority “decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent at the behest of a party that has suffered no injury.”

Conflicting Opinions

Republican-led states, including Missouri, have requested to get involved in the mifepristone case to allay some of the concerns that have been raised. The federal government objects to the motion, arguing that it raises “new and contested questions” at a late time regarding state standing.

The Fifth Circuit stated that the physicians had demonstrated standing by having “proven up each link in the chain of causation.”

It has been demonstrated that a certain proportion of women will experience health issues as a result of using the medication; that physicians contesting FDA regulations treat patients in urgent situations; and that treating those women will force the physicians to “violate their rights of conscience, sustain mental and emotional distress,” and “divert time and resources away from their ordinary practice,” according to the Fifth Circuit.

However, the Food and Drug Administration (FDA) and Danco Laboratories—the company that makes the name-brand version of mifepristone—argue that the doctors lack standing in papers submitted on January 24.

The regulatory body stated, “They do not prescribe mifepristone, and FDA’s approval of the drug does not require them to do or refrain from doing anything.”

Mifepristone is not one of the narrow circumstances in which a party may have standing, according to Bhagwat.

He declared that the “manipulation is so obvious to be beyond doubt.”

The case is U.S., No. 23-235 Food and Drug Administration v. Alliance for Hippocratic Medicine.

Article Source: Bloomberg Law

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