The lawsuit challenging mifepristone should have never been heard by any court.
The Supreme Court appeared listless, even bored, during Tuesday’s oral arguments in FDA v. Alliance for Hippocratic Medicine, the case asking the courts to ban the abortion drug mifepristone.
On Tuesday, it appeared likely that the justices would break down along the exact same lines — with only Justices Clarence Thomas and Samuel Alito voting to halt access to the drug.
Broadly speaking, the Alliance case presents two separate legal issues. The first is whether the Food and Drug Administration erred when it took several steps, beginning in 2016, that made it easier for health providers to prescribe mifepristone.
The plaintiffs faced an extraordinarily steep uphill climb to prevail on this issue. The Supreme Court has long said that a “court is not empowered to substitute its judgment for that of” the FDA when evaluating if a particular drug should be on the market. The only question judges may consider when evaluating the FDA’s decision is whether the agency articulated a “rational connection between the facts found and the choice made.”
In this case, the FDA looked at myriad scientific studies, collectively involving tens of thousands of mifepristone patients, when it determined how the drug should be prescribed. That’s more than enough to show a “rational connection” between the data and the FDA’s decision to expand access to mifepristone.
Based on the justices questions on Tuesday, however, it seems unlikely that the Court will even reach the question of whether the FDA violated its legal obligations. That’s because the second question before the Court is whether any federal judge had jurisdiction to hear this case in the first place.
Nearly all of the justices’ questions on Tuesday focused on this threshold question — a strong sign that the Court is inclined to dismiss the case on jurisdictional grounds, without even getting into the question of whether the FDAviolated the law.
That said, if the justices do rule on jurisdictional grounds, there is a high risk that this lawsuit will be revived in the lower courts and will wind up before the Supreme Court yet again.
There does not appear to be much of an appetite for banning mifepristone among the current slate of justices, however. So, unless the membership of the Court drastically changes in the next couple years — such as if former President Donald Trump were able to replace several justices — it is unlikely that there will be five votes to ban the drug even if this case reached the Court again in the future.Most of the justices seemed to be looking for a way to make this case go away
No plaintiff may bring a lawsuit in federal court unless they’ve been injured in some way by the defendant they are suing — a requirement known as “standing.” Moreover, if a federal plaintiff seeks an injunction, a court order that seeks to alter a defendant’s behavior in the future, they must show that they will be injured by that defendant in the future and that this injury is “certainly impending.
