Supreme Court Rules Pro-Life Physicians Cannot Challenge FDA’s Loosening of Abortion Pill Limits – Ruling Turns on Technical Doctrine of “Standing”

The Supreme Court has unanimously turned away a legal challenge pro-life physicians brought against federal Food and Drug Administration (FDA) actions removing safety protections from abortion pills. In FDA v. Alliance for Hippocratic Medicine, the Supreme Court did not uphold the FDA actions as such, but simply ruled that these particular challengers – pro-life doctors and the Alliance for Hippocratic Medicine (AHM) – did not have “standing” to bring their federal court case. A silver lining in the case was the Court’s ringing endorsement of conscience rights for pro-life physicians.

The case pitted the pro-life doctors against the FDA and Danco Laboratories, the manufacturer of the Mifeprex abortion pill (mifepristone). AHM claimed the FDA repeatedly violated the law in approving the abortion pill in the first place and in subsequently removing important health regulations on pill distribution. What happened next? In brief, AHM won in the district court and won, in part, in the U.S. Court of Appeals for the Fifth Circuit. Meanwhile, the Supreme Court put those victories on hold while it reviewed the case. The Supreme Court then issued its final ruling on June 13, 2024.

The litigation is of immense importance because abortion pills are now the most common methods of terminating pregnancies –and terminating the lives of prenatal children – in the United States.

Reflecting that importance, the ACLJ filed seven friend-of-the-court briefs in the litigation – one in the federal district court, two in the Fifth Circuit (one in opposition to the FDA and Danco’s request for a stay of the district court’s ruling against the FDA’s abortion pill approval and relaxation of safety standards, and one on the merits of the appeal), and four in the U.S. Supreme Court (one opposing the FDA and Danco on an emergency stay request and three on the merits of the case). In these various briefs, we highlighted the dangers of abortion, the use of abortion to exploit women, the federal criminal law that makes it illegal to mail abortion pills, and the flaws in the FDA’s abortion pill review process.

But the Supreme Court did not confront any of that. Instead, the Court simply held that the physician challengers and their organization AHM did not satisfy the constitutional requirements to bring suit in the first place. That means their particular challenge cannot proceed, though it is not the end of the case. The states of Missouri, Kansas, and Idaho filed their own challenge to the FDA actions and intervened in the federal district court. While their motion to intervene in the Supreme Court was denied, the states remain parties in the federal district court. And the Supreme Court’s decision rejecting standing by physicians does not apply to states, which have distinct legal claims to standing.

What about that silver lining regarding conscience rights? One of the arguments the pro-life physicians made for standing was that the FDA’s loosening of abortion pill regulations would mean (1) more women would be coming in for post-abortion medical help (because of the dangers and mishaps associated with abortion pills), and (2) some of the medical response (completing the abortion?) may violate the consciences of the pro-life physicians. The response the Biden Administration gave? There’s no way that could happen because federal law powerfully protects medical conscience rights. It is highly ironic that the Biden Administration would be the one making this argument, as the Administration generally attacks conscience rights. See here, here, and here. But the Supreme Court firmly held the Biden Administration to its word. Per the unanimous opinion (at 14-15, emphasis added):

[A]s the Government explains, federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences. See 42 U. S. C. §300a– 7(c)(1); see also H. R. 4366, 118th Cong., 2d Sess., Div. C, Title II, §203 (2024). The Church Amendments, for instance, speak clearly. They allow doctors and other healthcare personnel to “refus[e] to perform or assist” an abortion without punishment or discrimination from their employers. 42 U. S. C. §300a–7(c)(1). And the Church Amendments more broadly provide that doctors shall not be required to provide treatment or assistance that would violate the doctors’ religious beliefs or moral convictions. §300a–7(d). Most if not all States have conscience laws to the same effect. See N. Sawicki, Protections From Civil Liability in State Abortion Conscience Laws, 322 JAMA 1918 (2019); see, e.g., Tex. Occ. Code Ann. §103.001 (West 2022).

Moreover, as the Government notes, federal conscience protections encompass “the doctor’s beliefs rather than particular procedures,” meaning that doctors cannot be required to treat mifepristone complications in any way that would violate the doctors’ consciences. Tr. of Oral Arg. 37; see §300a–7(c)(1). As the Government points out, that strong protection for conscience remains true even in a so-called healthcare desert, where other doctors are not readily available. Tr. of Oral Arg. 18.

And again (at 16-17):

We agree with the Solicitor General’s representation that federal conscience protections provide “broad coverage” and will “shield a doctor who doesn’t want to provide care in violation of those protections.” Tr. of Oral Arg. 18, 36.

But what about emergency situations where everything is rush-rush? Not a problem (at 17, emphasis added):

[E]mergency room doctors summoned to provide emergency treatment [say they] may not have time to invoke federal conscience protections. But as the Government correctly explained, doctors need not follow a time-intensive procedure to invoke federal conscience protections. Reply Brief for United States 5. A doctor may simply refuse; federal law protects doctors from repercussions when they have “refused” to participate in an abortion. §300a–7(c)(1); Reply Brief for United States 5. And as the Government states, “[h]ospitals must accommodate doctors in emergency rooms no less than in other contexts.” Ibid.

In short, as the Court concluded (p. 17), “Federal law fully protects doctors against being required to provide abortions or other medical treatment against their consciences.” That is good news.

Now, it’s time to continue the challenge to the FDA’s misguided approval of easy access to the human pesticide of abortion pills, either through the states’ or others’ separate challenges, or through political and legislative efforts.