The U.S. Supreme Court is allowing, for now, several Food and Drug Administration (FDA) regulations that would loosen restrictions on—and expand access to—the abortion drug mifepristone to take effect. Justice Brett Kavanaugh, writing the majority opinion in the nine to zero decision, held that the plaintiffs—the Alliance for Hippocratic Medicine (AHM)—lack Article III standing to challenge the FDA order.
“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice,” the conservative justice wrote. He added, “…federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA‘s actions.”
“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” Kavanaugh continued before concluding in the opinion: “But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court.” Justice Kavanaugh, in the opinion, encouraged the plaintiffs to instead engage Congress, the President, and the FDA in addressing their desired changes through the legislative and regulatory review process.
Despite the decision, the Supreme Court did not fully close the door to future challenges to the FDA‘s mifepristone policies. The justices stressed that the standing issue came down to the fact that no plaintiffs were prescribed mifepristone nor suffered legal injury from the regulatory decision. A future case brought by a plaintiff with Article III standing could potentially result in the Court reversing the FDA’s decision.
