A Quick Explanation on Today's Supreme Court Decision Allowing Mifepristone to Remain on the Market

Understanding What the Court Did and Did Not do in Today's Decision

Today, in a major victory for abortion rights advocates (and for American women and doctors), the United States Supreme Court unanimously reversed lower court decisions that held that women could not access the FDA-approved abortion pill, Mifepristone.¹

This decision and the reactions to it are probably confusing, especially since the Court got rid of Roe v. Wade only two years ago. Moreover, people are hearing about some of the more complicated legal doctrines that many activists, journalists, elected officials, and even lawyers don’t understand.

Given the impact on individual rights and women’s health, it is important to understand what the Court did and did not do today.²

To clarify:

1. The Supreme Court did not hold today that there is a constitutional right for women to use mifepristone or for doctors to prescribe Mifepristone.

2. The Supreme Court did not hold that the Food and Drug Administration had lawfully approved Mifepristone through the administrative process.

What the Court held instead is that under Article III of the Constitution, the plaintiffs lacked standing to bring their case against the FDA for authorizing Mifepristone. Basically, the people suing to take Mifepristone off the market had no legal right to bring the lawsuit and therefore, it had to be dismissed.

How did they reach that conclusion?

In federal court, one cannot simply bring a case, instead, one must have what is known as “standing”.³ What does one need to have standing to bring a federal case?

1. Actual Injury. That is where one has an actual injury from the conduct of the government that is more than simply speculative or conjectural.⁴ It is not enough to simply bring a case against the government for violating the law; one must show that they are directly harmed by the government’s action.⁵

2. Causation. The defendant being sued must be the one who has caused this actual injury, not some other third party.⁶

3. Redressability. The court must be able to legally address the injury in question.⁷

The “standing” requirement is constitutionally required by Article III of the United States Constitution.⁸ It is a fundamental constitutional rule that governs federal court proceedings, so much so that not even Congress can legislatively confer standing on others who would not ordinarily have it.⁹

Article III is rather complicated and involves several complex doctrines but the gist of it is this: The Court doesn’t want the federal court system to turn into a Festivus style airing of the grievances.¹⁰

Here, it wasn’t Festivus but a religiously driven airing of the grievances and some renegade federal judges. All the Justices agreed that those seeking to remove Mifepristone from the market lacked any kind of standing.

To sum up the problem with their case. The individuals suing don’t take or prescribe Mifepristone, are not being required to take or prescribe Mifepristone in any way, and are instead trying to tell other people what to do. They effectively admitted as much. The theories they presented as to why they still had standing were so bad that even Lionel Hutz has offered better legal arguments.

To quote Elaine Benes of Seinfeld, “[They’ve] got NOTHING!”

On the one hand, this decision fills me with relief.

First, Mifepristone, a vital abortion care medication, will remain available to American women. Second, the Court has shown that it has some integrity left. To have affirmed these lower court decisions, it would have had to abandon all of its rules on standing and up-end the entire understanding of our judicial system. It would only have done that to reach a political result - effectively banning abortion.

Traditionally, conservatives like to restrict who has standing to bring a case to federal court¹¹ while liberals like to expand who has standing to bring a case.¹² Thus, had they affirmed the lower court decisions, the Supreme Court would have demonstrated that it is nothing more than a politically motivated wing of government. That is a rather frightening prospect.

The possibility exists. The initial trial court decision and the partial affirmance of the 5th Circuit Court of Appeals were authored by completely unqualified Trump-appointed judges, who apparently have forsaken all fealty to the law but instead have devoted themselves to partisan politics. Had they followed longstanding precedents, this would never have reached the Supreme Court.

Thus, I feel great relief knowing that the Supreme Court held up as an institution.

On the other hand though, it is concerning to consider the uncertain future of Mifepristone access. Holding that a group of pro-life busy-bodies lack standing to bring a lawsuit to remove Mifepristone from the market is substantively different from holding that one has the right to access or prescribe Mifepristone.

Proposition 8 (2008), which banned same-sex marriage in California, serves as an important example of this distinction. In a 5-4 decision, the Supreme Court dismissed the appeal of the case striking it down as unconstitutional as the defendant-intervenors lacked standing to appeal the lower court decision.¹³ That rendered Proposition 8 dead without the Court evaluating the merits of the case.

Chief Justice John Roberts wrote that decision and was joined by Justice Antonin Scalia. Just two years later, when the Court heard the merits of the same-sex marriage argument in the Obergefell v. Hodges case, both Chief Justice Roberts and Justice Scalia dissented from the decision holding that there was a constitutional requirement to allow same-sex marriage.¹⁴

Because other hypothetical questions are left unanswered by this case like:

1. Can Republican controlled states ban Mifepristone as some are currently doing?

2. Could a Republican controlled Congress pass a federal law banning Mifepristone that President Trump, returned to office, signs into law?

3. Could President Trump, returned to office, direct the FDA to revoke approval for Mifepristone and have it pulled from the market?

We don’t know how the Court would answer these questions. And if Mifepristone could be banned, one of the most common ways of accessing abortion could be taken away, even in states where abortion remains legal.

Most women in need of abortion care services rely upon Mifepristone. The Republican Party is committed to the complete elimination of legal abortion in this country. Roe v. Wade was only the starting point. If the Republican Party wins in November, they will certainly make every effort to ban Mifepristone. And we don’t know if the courts will allow them to or not.

Thus, today’s decision is another reminder that this fall, abortion rights are on the ballot. Vote accordingly.

1. https://www.supremecourt.gov/opinions/23pdf/23-235_n7ip.pdf

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.