What Today’s Major Supreme Court Ruling on Biden’s Abortion Pill Expansion Means for the Pro-Life Fight

The U.S. Supreme Court just unanimously ruled on a major abortion case, but the Court didn’t actually base its ruling on abortion or the abortion pill. The high Court found that the plaintiffs (a medical association) didn’t have standing to bring the lawsuit in the first place. As a result, the Biden Administration’s expansion of abortion pills, including through the mail, remains in effect, as the Justices threw out the lawsuit.

While this was not an ACLJ case, we wrote numerous amicus briefs (“friend of the court” briefs) advocating against abortion pill expansion on the merits. Unfortunately, the Court never reached those arguments, rejecting the case based on a lack of standing. Despite this ruling, the ACLJ will continue to fight against future attacks against the unborn, including our case pending before the Supreme Court defending pro-life sidewalk counselors.

Many might be surprised by the 9-0 ruling not restricting access to the abortion pill after the overturning of Roe v. Wade. How could some of the conservative Justices vote this way? We’re here to break it down for you.

Supreme Court Justice Brett Kavanaugh authored the opinion:

“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. . . .

“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court.”

The case in question is Food and Drug Administration v. Alliance for Hippocratic Medicine (FDA v. AHM), consolidated with Danco Laboratories v. Alliance for Hippocratic Medicine (Danco v. AHM). Danco manufactures the abortion pill Mifeprex (mifepristone), and the FDA initially approved and expanded the availability of mifepristone.

In brief, AHM was challenging (1) FDA approval of the abortion pill and (2) FDA relaxation of restrictions (called REMS) on abortion pill dispensing.

The federal district court issued a preliminary ruling that halted both the approval of mifepristone and the loosening of the REMS. The FDA and Danco appealed and sought emergency relief from the interim order, and the case eventually reached the Supreme Court.

Essentially, the Justices’ ruling today had nothing to do with the fact that the case involved the abortion pill; rather, the Justices didn’t believe the case had standing. “Standing” means that a plaintiff can’t just sue someone if that plaintiff was not the one harmed. Someone must be harmed to warrant a lawsuit.

AHM believed that its clients, doctors, could potentially suffer “downstream” economic and conscience harm from the abortion pill and wanted to challenge its expansion on behalf of these clients. The Court said that this “downstream” impact was too far a stretch to have Article III standing under the Constitution to bring this lawsuit.

That’s why the Justices ruled 9-0 and rejected the case. If the right plaintiff had brought this challenge, someone who was actually harmed by FDA approval or expansion of abortion pills, then it might have been a different story.

ACLJ Senior Counsel CeCe Heil explained how the ruling was based on a legal technicality:

When you lose on standing, . . . you have to have an injury, you have to be injured, personally injured, to be able to bring a lawsuit. And here, the Court, I think rightfully, acknowledges that they have no injury, in fact. They’re saying that it’s downstream, and they’re not the doctors who are prescribing mifepristone; they’re not a pregnant woman who possibly took mifepristone and had terrible consequences happen because of these . . . relaxed restrictions.

CeCe also noted a silver lining for future pro-life cases, which comes from Justice Clarence Thomas’ (a long-time pro-life Justice) concurrence:

Just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients.

In other words, the same principle being applied to the pro-life plaintiffs will likewise be applied to the abortion industry. Often when a pro-life law is passed, Planned Parenthood and other abortionists file a lawsuit, arguing it will potentially harm their clients. And Justice Thomas just laid the groundwork that abortionists will no longer be able to employ the same legal tactic.

While the result of today’s 9-0 decision is disappointing, the sky isn’t falling for the pro-life movement. In fact, we could potentially use today’s ruling to aid our ongoing pro-life litigation across the country.

Today’s Sekulow broadcast included a full analysis of the U.S. Supreme Court’s unanimous decision in rejecting the expansion of the abortion pill based on the plaintiff’s lack of standing. Former U.S. Representative Tulsi Gabbard reacted to the news that Tajikistan nationals arrested in the U.S. might be connected to ISIS. We also gave an update on a recent legal ACLJ victory in Pakistan on behalf of a murdered Christian.

Watch the full broadcast below: