The mifepristone ruling lacks both standing and merit — will SCOTUS preserve our rights or quash them?

The Supreme Court of the United States (SCOTUS) has continued to delay a decision on a Texas trial judge’s ruling concerning the Food and Drug Administration’s (FDA) approval of mifepristone. But make no mistake, SCOTUS is in trouble.

The Supreme Court must now contend with the bizarrely and poorly written Alliance for Hippocratic Medicine v. US Food and Drug Administration. The trial court decision reversed FDA approval of mifepristone, the drug used for chemical abortions, based on a survey of people responding to ads on the walls of New York subway stations. The trend in SCOTUS toward ideological, rather than impartial, legal decisionmaking is well known to everyone. As the culture wars rage on, SCOTUS set aside established precedent and reversed Roe v. Wade, which then put in place the opportunity for cases like Alliance. The culture wars need combatants, and in Alliance the plaintiffs are, regrettably, physicians.

In Dobbs v. Jackson Women’s Health Organization, SCOTUS reasoned that abortion rules should be decided state by state. The Constitution did not guarantee a right to abortion, the justices said, because the word “abortion” does not appear in the original text. Though an impressive document, the Constitution also does not mention specifically the rights to travel, privacy, autonomy or dignity. As an evolving society, we have grown beyond what was only written down. The Supreme Court knows this. In the latest legal salvo, the court must now decide how to deal with the merits of a decision opposed by a clear majority of U.S. citizens.

Luckily for SCOTUS, it has an out. Alliance can be easily tossed because the plaintiff physicians in this case so clearly lack what is known in the law as “standing.”

Standing refers to a party’s right to make a legal claim. Alliance was decided in federal court, and to have standing there, two things must be shown. First, the challenged conduct must have caused the plaintiff actual injury. Second, the interests sought to be protected must fall under the interests and actions of the regulatory body in question.

In this regard, the plaintiffs did at least sue the right regulatory body — in this case the FDA. The real problem here is the claim of injury by physician members of the Alliance for Hippocratic Medicine. A plaintiff cannot bring a complaint against another party based on the possibility of an injury. I can’t sue my neighbor for speeding down my street over concerns that his driving may injure my children who happen to be away at summer camp at the time of my complaint, for instance.

An injury is a violation of another’s legal right. In Alliance, the physician plaintiffs would have to show that FDA policy on mifepristone caused a real injury of life or limb, or at least the loss of a medical license. The concern over the loss of one’s soul is not sufficient in the eyes of the law. Physician members of the Alliance for Hippocratic Medicine are not actually prescribing mifepristone, so the claim of injury is moot. Alliance doctors have nothing at stake — therefore they have no standing to attack the FDA’s views on the safety of a drug they don’t prescribe.

Imagine the California Medical Board required all licensed physicians within the state to prescribe mifepristone to qualified patients on request. In this situation, physicians would have the requisite standing to challenge the science behind FDA approval of mifepristone, because they would risk losing their license if they refuse to prescribe.

A pregnant woman would have standing if she lived in a red state that made clinical abortion illegal. Arguably, a woman of childbearing age who is not pregnant might have standing, as she has a contingent right at stake should she need mifepristone. SCOTUS might favor an amicus brief from such a woman representing the millions of American women who may be affected by the outcome.

SCOTUS knows all of this, but will the justices act? Overturning Alliance should be a morning’s work. If, by some extraordinary hiccup in the collective legal minds of the court, they fail to strike on the basis of no standing, they surely should toss out Alliance because of the obvious lack of scientific merit. This problem has been identified by many other commentators. Even the lead author of the cited study rejected the conclusion that her study reflects the view of 14 percent of American women. But, in the current culture wars, SCOTUS might choose to redefine what constitutes good scientific evidence.

Still, SCOTUS has another method available that should allow it to defer to the FDA. The FDA is a federal agency, and in Chevron USA Inc v. Natural Resources Defense Council Inc, the court rightly established the doctrine in administrative law of judicial deference given to administrative actions. Administrative agencies contain industry experts that are better situated to make agency-relevant decisions than people without such a background. Although it seems these days in America we are living in a post-qualified age, this principle of deference is still found in every democracy around the world.

Issues around abortion are important. Physicians can thoughtfully add to the public conversation. But in Alliance, they simply add to the rage. Physicians with an obvious bias brought this case to a judge with an obvious bias. It is not in the spirit, or the plain language, of the modern version of the Hippocratic oath.

Joel Zivot, MD, MA, JM, is associate professor of anesthesiology at Emory University School of Medicine.