Suit challenging mifepristone should be dismissed, FFRF tells Supreme Court

Packages of Mifepristone

A new brief the Freedom From Religion Foundation and American Atheists have filed before the U.S. Supreme Court contends that the litigants who are challenging medication abortion lack standing to sue.

Last August, the 5th U.S. Circuit Court of Appeals reprehensibly upheld a district court injunction restricting mifepristone, part of a two-drug protocol used for medication abortion. The appeals court ruling limited abortion medication to just seven weeks of gestation and also banned telemedicine and mail-order shipments for abortion pills. This decision was appealed both by Danco, the drug manufacturer, as well as the U.S. Food and Drug Administration in separate cases. The plaintiffs are anti-abortion physicians and anti-choice organizations that claim injury based on manufactured and hypothetical scenarios and are represented by the Christian nationalist outfit Alliance Defending Freedom.

The anti-abortion groups and physicians lack standing to challenge the FDA’s regulatory decisions in 2016 and 2021 concerning mifepristone, the friends-of-the-court brief asserts.

The U.S. Constitution “requires a ‘proper party’ to bring suit, which ensures that federal courts resolve only real cases or controversies,” the brief states. “In this instance, anti-abortion advocates seek to use the courts to limit access to a safe and effective medication used for abortion.” The anti-abortion plaintiffs have sought to reverse-engineer a way to challenge the use of mifepristone, but those attempts fall well short of constitutional requirements.

First, the brief points out, the physicians have not demonstrated a “certainly impending” injury. Their religious or moral objections require a highly speculative chain of events and rely on hypothetical injuries. The other alleged injuries are just a proxy for what the physicians really care about: trying to ban the most popular form of abortion care because they have a so-called moral and religious objection to abortion. Under their standing theory, doctors who have a mere possibility of treating patients who may suffer from improbable complications from a drug may utilize the courts as a proxy for the doctor’s religious objections to the use of the drug. The sweeping breadth of this theory would permit suits for concocted and theoretical injuries.

“The Constitution does not permit plaintiffs to invent speculative injuries as a basis for a ‘case or controversy,’” says the brief. “The Constitution also does not permit plaintiffs to litigate claimed moral or religious injuries via proxy by way of other speculative claims.”

Second, the physicians’ standing theory would grant judicial review over any number of implausible and hypothetical injuries. Within the ambit of the FDA, doctors could wield religious or moral objections as a basis for standing if they might treat a patient someday who might be harmed by an FDA-regulated medication. This is not only contrary to the Constitution, but is untenable in a secular nation where science, not dogma, must guide the FDA’s regulatory decisions.

The FDA regulations in question do not require the physicians to do anything. The FDA has taken no regulatory action relating to these doctors that threatens their rights of conscience. And the physicians have not identified when their rights of conscience would be harmed.

Finally, FFRF and AA are concerned about manipulation by courts of their jurisdiction in order to favor preferred litigants. The Supreme Court has often turned away challenges that involve alleged violations of civil rights, the First Amendment’s Establishment Clause and environmental protection on the grounds that injuries are too generalized or too speculative, or that cases have been rendered moot by subsequent state action. Yet, the Supreme Court has increasingly failed to scrutinize these limits on its own jurisdiction in cases involving Christian litigants who assert constitutional violations. The court must decide such issues in a uniform and impartial manner.

“Not only is the judiciary’s impartiality at stake, but access to justice for all citizens is at stake,” the brief warns. “By design, the question of standing is a prerequisite for judicial intervention that closes the courthouse door to some litigants. Any manipulation by courts on the basis of standing becomes a means to issue favorable decisions on the merits to one side.”

The 5th Circuit’s handling of this case stands as an example of jurisdiction manipulation. While it found standing here on the basis of the doctors’ speculative future injuries, it has in the recent past declined to engage in the same treatment of those who are far more likely to suffer (such as in the case of students with disabilities challenging an order that prohibited school districts from requiring students to wear masks during the Covid-19 pandemic).

The Supreme Court has long admonished litigants and lower courts that the judicial system is not the forum for hearing “generalized grievances” arising from government actions, even where those actions conflict with fundamental constitutional principles. The plaintiffs, by seeking to address a concern shared by doctors generally — a desire not to see patients suffer side-effects that require medical intervention — seek an exception to this rule, but have fallen far short of establishing that such an exception would be appropriate.

For all these reasons, FFRF and AA conclude, the Supreme Court should reverse the judgment of the 5th Circuit and the case should be dismissed.

You can read the amicus brief here.

FFRF Senior Litigation Counsel Patrick Elliott, FFRF Anne Nicol Gaylor Legal Fellow Sammi Lawrence and American Atheists lawyer Geoffrey Blackwell prepared the brief. Elliott is the counsel of record for the brief.

The Freedom From Religion Foundation, the largest national association of freethinkers, was founded nationally in 1978 as a 501(c) (3) nonprofit and has more than 40,000 members, including members in every state and the District of Columbia. FFRF’s primary purposes are to educate about nontheism and to preserve the cherished constitutional principle of separation between religion and government. Additionally, almost all of FFRF’s members consider access to reproductive health care a vital secular policy issue, and a recent membership survey showed that 98.8 percent of FFRF members support access to abortion care.

The interest of the filers of the brief in this case arises from their position that religious ideology has always been and remains the primary threat to reproductive freedom in the United States. Religious liberty demands that religious ideology may not, in a secular, religiously pluralistic nation, be the basis of federal policy, especially that which denies people the freedom to make health care decisions. The amici also seek to protect equal access to courts. Courts must not put their thumb on the scales when it comes to jurisdictional matters in favor of Christian litigants, and foreclose access to courts to civil rights and other litigants.

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