The United States Supreme Court's recent decision in Food and Drug Administration v. Alliance for Hippocratic Medicine (Alliance), which serves, for now, to keep mifepristone widely available in the United States, does not necessarily foreclose another challenge to the FDA's actions. Although the challengers in Alliance, several individual doctors opposed to abortion on religious or moral grounds along with medical groups whose members are opposed to abortion, were ultimately unsuccessful in their efforts to get both the FDA's initial approval of the drug in 2000 and its expansion of access to the drug in 2016 and 2021 rescinded, the unanimous decision by the United States Supreme Court decided the matter on the narrow issue of standing, relying on well settled principles of jurisprudence.
In fact, Justice Kavanaugh began his 25-page opinion with a quote from the late Justice Antonin Scalia summarizing the core of the constitutional doctrine of standing. As Scalia wrote, a plaintiff must "first answer a basic question: What's it to you?" Moreover, Kavanaugh continued, a plaintiff needs to show that the defendant caused the injury that she is complaining about. Kavanaugh then rejected each of the "complicated causation theories" that the challengers relied upon to connect FDA's actions to the injuries that they were asserting.
First, he relied on federal laws that protect doctors from being required to provide medical treatment against their consciences to conclude that the challengers could not show that the FDA's actions will harm them. The absence of any case in which a doctor opposed to abortion had actually been required to perform one or provide other care that would violate her conscience made that conclusion relatively easy to draw. Then Kavanaugh rejected as being far too speculative the assertion that having to treat patients who have suffered complications will injure the doctors in other respects, such as diverting resources, increasing the likelihood that they will be sued, and potentially increasing their insurance costs. Such claims, he concluded, would open the door to countless lawsuits challenging "almost any policy affecting public health" like trauma surgeons challenging the repeal of gun restrictions because they might have to operate on more gunshot victims. Kavanaugh then listed a parade of horribles that such an "unprecedented and limitless approach" could bring. To start the Federal Judiciary down "that uncharted path," would "seemingly not end until virtually every citizen had standing to challenge virtually every government action that they do not like."
The court also rejected the medical groups' claim for standing on behalf of their members – a doctrine known as associational or organizational standing. And finally, the court dismissed the idea that if these challengers didn't have standing, then it may be that no one would have standing to challenge FDA's 2016 and 2021 actions. Rejecting the assertion as ]potentially suspect, but even assuming that were the case, Kavanaugh concluded that such a prospect is not a reason to determine that a particular set of challengers must have standing. He continued, "some issues may be left to the political and democratic processes: The Framers of the Constitution did not 'set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts.'"
I cannot tell you how many times, either writing for the Connecticut Supreme Court or joining my colleagues in one of their opinions, we concluded matters based on the jurisprudential concept of standing relying on well settled principles and precedent, often highlighting United States Supreme Court authority. Indeed, we had many opportunities to determine what constitutes standing. As we acknowledged repeatedly:
"Standing is ... a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy."
"The fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated. Standing is not a technical rule intended to keep aggrieved parties out of court.... Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented."
We recited countless times:
"the requirements of justiciability and controversy are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great. Where the nexus between the injury and the claim sought to be adjudicated is obvious and direct, a plaintiff has standing to maintain the claim."
And when deciding whether an association has standing to bring a claim, we adopted the federal standard of associational standing as set forth in the United States Supreme Court Hunt decision relied upon in Alliance:
"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Representational standing depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured."
I highlight the rubric from these countless Connecticut cases to reinforce that the United States Supreme Court decision, while properly applauded, did not set new ground rules but merely applied well settled principles of law to baseless assertions.
The allegations in Alliance are unlike what we experienced nearly 30 years ago in 1996 in Gay and Lesbian Law Students Association v. Board of Trustees, University of Connecticut, wherein, when faced with an action brought by a Gay student group against a state university seeking an injunction to prohibit the university from permitting military from using on campus employment recruiting facilities or other employment services. we held:
"the infringement of the rights of the plaintiff's members under the Gay Rights Law was concrete and particularized as well as actual and imminent. The members had been denied equal placement opportunities because the career services office had allocated resources to the military, which would not, regardless of their abilities and talents, hire them. [The conduct by the recruiters] created a lack of equal access to the office of career services and has caused some of the plaintiff's members to reevaluate their approaches to the career services department. Moreover, by allowing the military to use the services of the placement office and to conduct on-campus interviews, the defendants sanctioned impermissible discrimination that caused the plaintiff's members to have feelings of shock, anger, humiliation, frustration and helplessness. Finally, the violation of the members' rights under the Gay Rights Law was continuing and, at the time of the temporary injunction hearing, was about to increase upon the arrival of military recruiters to conduct interviews. By permanently enjoining on-campus recruiting by the military, the trial court secured the members' rights under the Gay Rights Law."
That case was a far cry from the one advanced in Alliance. Because the plaintiff's members did not otherwise have standing to sue in their own right, the Alliance court's determination regarding associational standing was equally sound. So while abortion advocates are drinking champagne, I wouldn't have even opened the bottle.
Originally published by Connecticut Law Tribune and Law.com.
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