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Both the Biden administration and mifepristone distributor Danco Laboratories separately filed petitions with the Supreme Court last Friday, asking the justices to step back into the fight over medication abortion access. The petitions were expected after last month’s lawless decision from the U.S. Fifth Circuit Court of Appeals that—if allowed to stay in place—would reinstate outdated and onerous regulations on mifepristone, one of two drugs used in medication abortions in this country.
But just because the legal filings were expected doesn’t make them any less risky. After all, this is the same Supreme Court that, entirely on its own and just because it could, overturned Roe v. Wade to satisfy the political appetite of its conservative justices. There’s great risk the Court could do something similar with medication abortion access. That risk is worth taking, though, given what’s at stake.
Yes, the case is very much about the conservative legal movement’s attempt to use the courts to impose some kind of national ban or rollback of medication abortion. It’s also about conservatives’ efforts to dramatically expand their ability to launch political lawsuits against policy that’s popular with almost everyone but their extremist base by upending the legal concept of “standing” in federal lawsuits.
What is standing? It’s the legal requirement that anyone bringing a lawsuit in federal court has some kind of skin in the game of whatever dispute they’re asking the court to settle. It’s an important requirement that keeps frivolous and political lawsuits out of the federal courts. And, as my colleague Imani Gandy and I talked about at length on our Boom! Lawyered podcast, it’s a requirement the conservative legal movement has turned on its head in its challenge to the Food and Drug Administration’s regulation of mifepristone.
Both Trump Judge Matthew Kacsmaryk and the Fifth Circuit embraced Alliance for Hippocratic Medicine’s arguments that the anti-abortion feelings of its members, along with hypothetical lost opportunities to treat hypothetical future patients, were sufficient to argue that the FDA rushed mifepristone to market over 20 years ago. Honestly, I’m running out of adjectives. The arguments—and the law they’re creating—are so ludicrous and so incredibly dangerous.
If conservatives are successful in upending the concept of legal standing to challenge mifepristone regulations, there’s no telling where that strategy ends. This proves once again that the conservative legal movement starts its larger strategy with attacks on abortion rights and access. It never stops there.