Even the Supreme Court seems sick of its abortion pills case

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.

Their frustration with the Alliance case is understandable, since they’ve been dealing with it for nearly an entire year. Last April, after two lower courts issued decisions that would have effectively removed mifepristone from the market, the justices voted 7-2 to leave access to mifepristone intact while this case was being appealed.

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.

The plaintiffs in this case gamed the court system to ensure that this lawsuit would be heard by Matthew Kacsmaryk, a former anti-abortion lawyer who frequently acts as a rubber stamp for Republican litigants seeking a court order blocking a federal policy. Several of the justices suggested ways to dismiss the Alliance case that are fairly narrow. And, if the Court leaves open some possible way that this case could be revived, Kacsmaryk will almost certainly leap on it to try to ban mifepristone 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.

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.”

It is not enough for a plaintiff to show that there is a high statistical likelihood that they will be injured in the future. That was the holding of Summers v. Earth Island Institute (2009), which rejected the idea that a membership organization can establish standing by demonstrating that “there is a statistical probability that some of those members are threatened with concrete injury.”

Nevertheless, the plaintiffs in the Alliance case argue that they have standing to ask the courts to restrict access to mifepristone because there is a statistical probability that they might be injured in the future. The plaintiffs are anti-abortion doctors and organizations representing anti-abortion doctors.

Specifically, they argue that if mifepristone remains on the market and can be prescribed under the FDA’s current protocol, some percentage of people will experience complications (serious complications from mifepristone are exceedingly rare but not nonexistent). These patients then might seek care from an emergency room. Once they arrive, they might be cared for by a doctor who belongs to one of the plaintiff organizations. And that doctor might have to provide care which violates the doctor’s conscience.

That’s a whole lot of “mights.” And it is far too many mights to show that the conscience injury that plaintiffs fear is “certainly impending.”

At Tuesday’s oral argument, various justices floated several theories why this case should be dismissed. Justice Elena Kagan, for example, honed in on the fact that Summers seems to preclude these plaintiffs’ lawsuits from moving forward, telling Erin Hawley, the lawyer for the plaintiffs, that her standing theory “sounded very probabilistic to me.”

Justice Ketanji Brown Jackson, meanwhile, worried that there is a “mismatch” between the specific harm alleged by these plaintiffs, and the sweeping remedy that they seek. If the plaintiff doctors believe that they may be required to provide care that violates their conscience, Jackson argued, then the proper remedy is to exempt them from having to provide such care. It isn’t a broad court order “preventing anyone from having access to these drugs at all.”

Jackson’s concerns were echoed by Justice Neil Gorsuch, a conservative Republican who frequently votes with Thomas and Alito, but who already broke with them once when the Court handed down its temporary order allowing mifepristone to remain on the market last April. Gorsuch fretted that “a handful of individuals who’ve asserted a conscience objection” should not be able to go to court and obtain a “nationwide” order changing the entire country’s approach to mifepristone.

Meanwhile, many of the justices suggested that, for these plaintiffs to have standing to bring their lawsuit, they would have to produce at least one doctor who identifies a specific circumstance where they will be forced to violate their conscience, and this doctor must also describe exactly what their conscience forbids them from doing.

Two doctors did submit statements in this case indicating that they object to completing an abortion, and they fear that they would be required to do so if a patient shows up at an emergency room after they took mifepristone, but the drug did not succeed in terminating the patient’s pregnancy.

But, as Justice Amy Coney Barrett pointed out, even among the small number of patients who require emergency care after taking the drug, most of these patients do not arrive at the ER with a live fetus. So its not clear that any doctor involved in this case has ever been asked to provide care that violates their conscience, must less that such a violation is “certainly impending” in the future.

It appears very likely, in other words, that the Court will find some way to rule that this case should be dismissed on jurisdictional grounds. The only question is how the justices will find their way to that conclusion.

Though the Court appears likely to dismiss this case, there is a significant risk that the case could be revived if the justices’ decision is too narrow. That’s because the trial judge in this case is likely to latch onto literally any opportunity, no matter how tenuous, to restrict access to abortions.

Until recently, any federal lawsuit filed in Amarillo, Texas, was automatically assigned to Kacsmaryk, a Trump appointee with close ties to the religious right, and a history of handing down dubiously reasoned decisions that advance right-wing causes. The Judicial Conference of the United States, an internal governing body for the federal judiciary, recently announced a new policy that is supposed to prevent this kind of “judge shopping” from happening in the future. But the new policy will not cause cases that are already assigned to Kacsmaryk to be reassigned to another, unbiased judge.

Suppose that the Supreme Court rules that the Alliance case must be dismissed because the two doctors who described the nature of their conscience objections described them too narrowly. If that happens, the Alliance plaintiffs may try to revive their lawsuit by submitting new statements that describe those objections more broadly. Given Kacsmaryk’s record of doing whatever it takes to restrict access to abortion, he will likely rule that this case can be revived.

Similarly, Kacsmaryk has already ruled that three red states, which tried to join this lawsuit months after it was filed, may do so. Unless the Supreme Court definitively rules that these states do not have standing, Kacsmaryk will almost certainly rule that they do. That would also revive the case, and most likely require the Supreme Court to hear it again at a later date.

The Supreme Court, in other words, needs to decide whether they want this meritless lawsuit to continue for years, repeatedly being revived by a judge who is determined to do whatever he can to ban abortions — or whether they want to put this case to bed forever.

The only way to ensure that it doesn’t come back is to hand down a broad ruling that cuts off any argument Kacsmaryk might use to revive it.