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A clutch of red-state attorneys general seem likely to try a last-minute gambit to reanimate the corpse of Food and Drug Administration v. Alliance for Hippocratic Medicine, a lawsuit challenging the abortion medication mifepristone. But they won’t succeed, because states can’t and shouldn’t parachute into moribund litigation halfway across the country. That means the Supreme Court’s decision today should end this threat to abortion access—at least for now.
To recap: Since 2000, millions of pregnant people in the U.S. have safely and effectively used mifepristone and its partner, misoprostol, as part of an FDA-approved abortion medication regimen. Mifepristone is safer than penicillin and Viagra.
Over time, as it collected evidence showing the medication’s safety, the FDA dialed back its unnecessarily strict limits on prescribing and using mifepristone. In 2016, for instance, it allowed the two-medication regimen to be prescribed until 10 weeks from conception, up from an original seven weeks. And in 2023, it allowed certified pharmacies to dispense mifepristone, where before patients would have to get their medicine directly from a clinician.
But in 2022, a group of anti-choice doctors and medical associations—the eponymous Alliance for Hippocratic Medicine—sued to block the FDA’s generation-old approval of mifepristone. Not by accident, they sued in Amarillo, Texas—a division of the federal Northern District of Texas where virtually all cases get assigned to Matthew Kacsmaryk, a die-hard anti-choice jurist. And they got what they wanted. Last April, Kacsmaryk effectively enjoined the FDA’s longstanding approval of mifepristone. On appeal, the U.S. Court of Appeals for the 5th Circuit let a lot of that injunction stand.
Judge-shopping, revanchism, religious dogma, and paternalistic nostalgia dressed up as administrative law: As Mark Joseph Stern has shown in these pages, that’s not nearly as rare as it should be. The only mildly surprising part of the whole debacle was the appellate court’s firm conviction that these doctors—who neither took mifepristone nor prescribed it—had any business in court in the first place. If you don’t own a dog or bet on them, you don’t get to sue over the race.
This is the “standing” doctrine. Plaintiffs can’t sue in federal court unless they were injured by something the defendants did. And their injury can’t just be that they’re really upset about it. Otherwise, anyone who cared about any aspect of federal policy could sue—and courts, not legislatures, would be policymaking bodies.
Conservatives once professed to care deeply about this doctrine. It served as a bulwark against progressives making a federal case out of, for instance, the EPA’s failure to regulate greenhouse gases.
But in the 5th Circuit, at least, that aspect of our (otherwise venerated) history and tradition has gone by the wayside. Standing doctrine is hard for the right-wing grievance machine, which believes it is entitled to whine to the refs over every perceived slight.
So, obligingly, the 5th Circuit held that the doctors did have standing—after all, the court reasoned, someday they might be forced to treat someone undergoing some unspecified mifepristone-related complication, compromising their deeply held ideals.
At the end of that meandering trail of implausible contingencies lay a false premise. As the Supreme Court explained in its decision reversing the 5th Circuit: None of the plaintiff doctors alleged that they had ever been in a situation where they were forced to provide abortion care of any sort. And nobody is ever forced to provide abortion care, since federal law protects doctors’ freedom of conscience.
What’s more: Nobody, even like-minded anti-choicers, ever really believed the 5th Circuit’s standing logic. That’s how Idaho, Kansas, and Missouri got involved in a lawsuit filed in a state hundreds of miles away from any of them.
When the FDA asked the Supreme Court to temporarily block the 5th Circuit’s decision pending further litigation, it leaned hard into the plaintiffs’ lack of standing. And the Supreme Court seemed inclined to listen, granting that stay request and hearing the case on the merits.
The red states responded by jumping into the fray. A year had gone by since the case first started. The district court had already given the private plaintiffs everything they wanted. But the states were worried that all the mischief would be undone by plaintiffs’ lack of standing: “The Federal Government’s recent petition,” they argued in their motion to intervene, “spends the brunt of its analysis attacking the private plaintiffs’ theories of standing. But in this motion, the States press sovereign and economic harms that cannot be asserted by private plaintiffs.” So, they contended, they should be allowed into a case that none of them could ever have filed in the first place because none of them has any plausible connection to Amarillo, Texas. Kacsmaryk, of course, was as obliging as ever.
And now what? Since the private plaintiffs don’t have standing, the district court would normally dismiss the entire case, wiping away the remaining vestiges of its preliminary injunction. But now there is a new set of state plaintiffs. They’re likely to argue that they get to go on litigating, because they have different and untested claims of standing. And we already know how the district court and the 5th Circuit feel about the merits. Does the agony continue?
It shouldn’t. Not, anyhow, if existing law means anything.
If standing is broken at its inception, you can’t fix it afterward. Plaintiffs need standing when they file their case. If they haven’t been injured, they shouldn’t be in court in the first place—and courts have no power to do anything in the case other than dismiss it. Standing defects can’t be cured by subsequent legal repositioning—including by intervention. As one federal appellate court put it: “Since intervention contemplates an existing suit in a court of competent jurisdiction and because intervention is ancillary to the main cause of action, intervention will not be permitted to breathe life into a ‘nonexistent’ law suit.”
The alternative would open the door to all kinds of procedural machinations—including the one that the state intervenors are trying here. Litigation hoboes can just get a willing plaintiff, no matter how frivolous his arguments, to file a suit in a favorable district, and then slip in behind him before the stockcar doors slide shut. The railyard dicks will get the original railhopper, but his sly buddy gets to keep on traveling.
So this case should die now, because allowing Zombie AHM to survive would be bad law and bad policy. But it would also be profoundly harmful to any vestigial sense of state dignity.
States aren’t just like normal litigants. They have some unique prerogatives and interests and some unique litigation privileges, too. For instance: Standing applies differently to states. Unlike individuals, they’re entitled to go to court to protect their sovereignty—their (limited but real) autonomous prerogative to appoint their own officials and make their own laws.
Those special prerogatives grow out of the place of states in our federalism bargain. And they come with obligations—including the obligation not to act like litigation hoboes. Red states shouldn’t sue the FDA over a safe 23-year-old medication that makes women healthier and freer. But if they do, they should have the same faith in the federal system that the federal system has in them, suing in their own home jurisdictions rather than decamping across state lines because a Texas judge will treat them nice.
None of that, of course, prevents a new set of litigants—even these states—from bringing a new suit. For now, mifepristone remains legal and accessible. Not even Matthew Kacsmaryk can undo that—perhaps temporary—win.