On Thursday morning, the Supreme Court issued a ruling in FDA v. Alliance For Hippocratic Medicine that kicked the conservative legal movement’s latest attack on abortion out of court. Writing for a unanimous Court, Justice Brett Kavanaugh explained that the Alliance For Hippocratic Medicine, a sock-puppet group of right-wing creeps challenging the FDA’s approval of mifepristone, lacks standing—the legal right to bring a lawsuit in the first place.
Generally speaking, a plaintiff has standing if they experienced an injury that was caused by the defendant, and that a court can fix. Here, AHM advanced a legal theory that was too far-fetched even for the Court’s radical right-wing supermajority, although notably accepted by both a Trump district court judge and the Fifth Circuit Court of Appeals.
Because of the Court’s ruling, the disgraceful status quo it imposed in Dobbs remains in place: Mifepristone remains available in states where it is not already banned. Abortion access is no less limited—but for once, no more limited—than it was yesterday.
At issue in Alliance for Hippocratic Medicine is mifepristone, a safe and effective pill that the Food and Drug Administration (FDA) approved two decades ago for use in ending pregnancies. As of 2023, medication like mifepristone is used in over 60 percent of abortions in the United States. Nevertheless, four anti-abortion groups commenced a lawsuit in 2022, strategically filed in the courtroom of noted culture warrior Matt Kacsmaryk. Crucially, the doctors involved do not prescribe mifepristone to their patients, and the FDA’s regulations do not require them to do anything or stop them from doing anything. In short, they could have just minded their business. Yet they alleged that they were injured by the FDA’s regulations because they (personally) don’t like abortion, and might (hypothetically) have to care for a patient who uses mifepristone in the future.
In federal district court, Kacsmaryk agreed that the Alliance for Hippocratic Medicine had valid claims to make. So, too, did Judge James Ho of the Fifth Circuit, who in a partial concurrence argued that “doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.” By this reasoning, doctors should be able to force someone to give birth if they think looking at ultrasounds is really neat.
The Court disposed of this notion in short order: “A plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Kavanaugh wrote. This is a relief. But it’s not an outright win for pregnant people and their loved ones. The fact that the Court even needed to clarify something this obvious is a testament to how entrenched conservative extremism is in the federal judiciary, and especially in the Fifth Circuit, where anti-choice activists are already hard at work coming up with a different attack on mifepristone that the Court’s conservatives might find a little less specious.
Distressingly, the opinion leaves breadcrumbs for these activists to follow next time—and sets up some roadblocks to keep progressive activists out. For example, Kavanaugh writes that plaintiffs who aren’t actually affected by a given regulation, like the AHM, can still “thread the causation needle” if they show that the parties who are regulated “will likely react in predictable ways that in turn will likely injure the plaintiffs.” The Court also clarified that an organization does not have standing merely if it “diverts its resources in response to a defendant’s actions.”
Why does this matter? The diversion-of-resources argument comes from a landmark 1982 case called Havens Realty Corporation v. Coleman, in which a fair housing organization sought to sue an apartment complex for its refusal to rent apartments to Black “testers”—people who posed as potential renters to test compliance with the law. The Court ruled in Havens Realty that the organization, although it wasn’t actually trying to rent apartments, nonetheless had standing to sue, in part because the realty company’s actions forced the organization to use its limited resources to ferret out illegal discrimination.
Kavanaugh’s opinion declines to extend standing to the AHM under Havens Realty. But he also goes out of his way to call Havens Realty an “unusual case” that the Court “has been careful not to extend…beyond its context.” If this language signals that the Court is looking skeptically at future diversion-of-resources claims, that could be bad news for civil rights groups trying to use the courts to enforce the law.
In a solo concurrence, Justice Clarence Thomas comes out and says what Kavanaugh does not. In his separate opinion, Thomas takes direct aim at “associational standing”—the legal theory that allows organizations to sue for injuries suffered by its members. “Our associational-standing doctrine appears to create serious problems, both constitutional and otherwise,” he wrote, criticizing the Court having “never attempted to reconcile [the doctrine] with the traditional understanding of the judicial power.”
Associational standing originates from NAACP v. Alabama ex rel. Patterson, a 1958 Supreme Court case in which the NAACP sued to prevent the disclosure of its member rolls to state officials, which would have put their safety at risk in the Jim Crow South. In a unanimous opinion, the Court sided with the NAACP—an outcome that avoided forcing individual Black plaintiffs in mid-1950s Alabama to sue in their own names in order to vindicate their rights.
In the years since, many civil rights groups have used associational standing to bring cases on matters that affect their members’ interests. Environmental organizations, for example, depend on associational standing to enforce the Endangered Species Act, or to challenge development proposals that will wreak havoc on the surrounding environment. Doctors have used associational standing to sue on behalf of their patients whose rights are infringed when state laws deny them abortion care—again, an especially important tool in cases where individual plaintiffs might reasonably fear harassment or violence.
Thomas is careful to note that he is writing with an eye to the future; “in an appropriate case,” he says, “we should explain just how the Constitution permits associational standing.” But this is how the conservative legal movement works: Even when the outcome is, relative to the alternative, good, the conservative justices find ways to set the conservative legal movement up for future success. This time bomb didn’t go off this time, but the clock is ticking.
