The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Standing Analysis in FDA v. Alliance for Hippocratic Medicine

The Court ducks the conscience theory of standing based on the government's new position, "abandons" Haven's Realty, and starts the deadpool for associational standing


Today the Supreme Court unanimously reversed the Fifth Circuit in FDA v. Alliance for Hippocratic Medicine. This outcome was not a surprise, since the Court granted a complete stay of the District Court's ruling in April 2023, allowing mifeprisotne to remain on the market.

After AHM was argued, I wrote that the Court should use this case as an opportunity to scale back two primary standing doctrines: Havens Realty "diversion of resources" standing and "Offended Observer" standing. The Court did just that.

Justice Kavanaugh wrote a very tight majority opinion. Part II is a very useful summary of standing doctrine. All Federal Courts students should read it for a quick review. He managed to keep all nine Justices on board, even where there were opportunities for them to jump ship. (By contrast, see Justice Thomas's fractured unanimous reversal in Vidal v. Elster.) And, as I'll explain below, there is some language here that may come back to bite progressives.

According to Justice Kavanaugh, the plaintiffs advanced three sets of causation theories.

Theory #1: Standing Based on Conscience Objections

The first theory asserts "that FDA's relaxed regulation of mifepristone may cause downstream conscience injuries to the individual doctor plaintiffs and the specified members of the plaintiff medical associations, who are also doctors." The Fifth Circuit granted standing on this basis. Specifically, the panel found that under federal law, doctors could be required to participate in an abortion, or provide some sort of abortion-related care, in violation of their conscience. In a related challenge to new emergency regulations under EMTALA (Emergency Medical Treatment and Active Labor Act), the federal government argued that individual doctors would be required to provide such care if no other doctor at the hospital was able to. Here is an excerpt from the Fifth Circuit's opinion:

At oral argument, counsel for FDA disputed that EMTALA binds individual doctors, arguing instead that the obligation to provide abortion-related care runs to hospitals. That is, individual doctors may assert conscience objections so long as one doctor at the hospital can provide the required care. This raises the question of what would happen if no other doctor were available—a situation that seems particularly likely in smaller clinics. But setting that issue to the side, counsel's argument appears to conflict with the Government's position on appeal in the Texas case. See Br. for Appellants at 25, Texas v. Becerra (5th Cir. May 1, 2023) (No. 23-10246) ("EMTALA requires doctors to offer abortion care when that care is the necessary stabilizing treatment for an emergency medical condition.") (emphasis added); id. at 27 ("[W]hen pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care.") (quoting United States v. Idaho, 623 F. Supp. 3d 1096, 1109 (D. Idaho 2022)).

We conclude that the federal laws Defendants cite do not alleviate the Doctors' conscience injury, at least for purposes of this preliminary posture. The inconsistencies between the Government's position in Texas v. Becerra and FDA's position here tend to rebut the notion that Doctors are free to refuse treatment to mifepristone patients.

Before the Supreme Court, it seems the government changed its position, or at least reconciled its position between AHM and the EMTALA case. Justice Kavanaugh's majority opinion cites Solicitor General Prelogar's oral arguments in the AHM case, as well as in Moyle (the EMTALA abortion case, not the circumcision case). Kavanaugh wrote:

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.

In NFIB v. Sebelius, Chief Justice Roberts famously relied on Solicitor General Verrilli's "representation" that there were no collateral consequences if a person failed to purchase health insurance–they would only have to pay a tax-penalty. That "representation" was huge. Here too, Prelogar made an important "representation" about conscience protections.

In response to all of that, the doctors still express fear that another federal law, the Emergency Medical Treatment and Labor Act or EMTALA, might be interpreted to override those federal conscience laws and to require individual emergency room doctors to participate in emergency abortions in some circumstances. See 42 U. S. C. §1395dd. But the Government has disclaimed that reading of EMTALA. And we agree with the Government's view of EMTALA on that point. EMTALA does not require doctors to perform abortions or provide abortion-related medical treatment over their conscience objections because EMTALA does not impose obligations on individual doctors. See Brief for United States 23, n. 3. As the Solicitor General succinctly and correctly stated, EMTALA does not "override an individual doctor's conscience objections." Tr. of Oral Arg. 18; see also Tr. of Oral Arg. in Moyle v. United States, O. T. 2023, No. 23–726 etc., pp. 88–91 (Moyle Tr.).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.

The core basis for the Fifth Circuit's conscience-based standing theory was undercut by the government's representation. I know it is very popular to ridicule the Fifth Circuit, but when the government changes its theory of the case, the standing analysis will differ. Moreover, there is some very strong language for conscience protections. Advocates for mifepristone will be superficially pleased, but they will worry far more about how doctors could invoke these conscience protections in future cases. The Court's progressives did not need to join this analysis, but they did.

In any event, the Court was able to duck this theory of standing. It could come back in the future.

[Update: Kristin Wagoner, the President of ADF, said their lawsuit forced the Solicitor General to switch positions:

WAGGONER: I'm glad you brought that up because what we've seen in this litigation is an about-face explanation by the Department of Justice, the federal government. When this case began, the federal government took the position that there were no conscience rights, that the Biden administration, through its agency, could force health care providers to perform abortions and to violate their conscience. And they changed their position when the case finally got to the U.S. Supreme Court, and essentially, that's because the lawsuit backed the government into a corner and forced the government to abide by the constitution in this area.


The Court also chipped away at what might be called "offended observer" standing in Footnote 3:

The doctors also suggest that they are distressed by others' use of mifepristone and by emergency abortions. It is not clear that this alleged injury is distinct from the alleged conscience injury. But even if it is, this Court has long made clear that distress at or disagreement with the activities of others is not a basis under Article III for a plaintiff to bring a federal lawsuit challenging the legality of a government regulation allowing those activities. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473, 485–486 (1982); United States v. Richardson, 418 U. S. 166, 175 (1974); Sierra Club v. Morton, 405 U. S. 727, 739 (1972).

The words "distress" and "disagreement" appear nowhere in the cited cases. The Court has added a new gloss in Article III standing. I expect these standards to bleed over to the Establishment Clause context.

Theory #2: Standing based on monetary harms

The second theory claimed the plaintiffs would incur monetary costs from the new policy: "in particular, diverting resources and time from other patients to treat patients with mifepristone complications; increasing risk of liability suits from treating those patients; and potentially increasing insurance costs." The Court quickly rejected this argument. The Plaintiffs have not incurred any such costs in the past, and any possible future costs would be too "attenuated."

Justice Kavanaugh was quite adamant in rejecting what he called "doctor standing":

In any event, and perhaps more to the point, the law has never permitted doctors to challenge the government's loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors' offices with follow-on injuries. Stated otherwise, there is no Article III doctrine of "doctor government safety regulations. Nor will this Court now create such a novel standing doctrine out of whole cloth. . . .

The answer is no: The chain of causation is simply too attenuated. Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.

Justice Kavanaugh concluded this section with Footnote 5, which puts some constraints on the third-party standing doctrine:

The doctors also suggest that they can sue in a representative capacity to vindicate their patients' injuries or potential future injuries, even if the doctors have not suffered and would not suffer an injury themselves. This Court has repeatedly rejected such arguments. Under this Court's precedents, third-party standing, as some have called it, allows a narrow class of litigants to assert the legal rights of others. See Hollingsworth v. Perry, 570 U. S. 693, 708 (2013). But "even when we have allowed litigants to assert the interests of others, the litigants themselves still must have suffered an injury in fact, thus giving them a sufficiently concrete interest in the outcome of the issue in dispute." Ibid. (quotation marks and alterations omitted). The third-party standing doctrine does not allow doctors to shoehorn themselves into Article III standing simply by showing that their patients have suffered injuries or may suffer future injuries.

Justice Thomas's solo concurrence expressly calls on the Court to reconsider third-party standing, as well as associational standing. He relies on Judge Murphy's opinion in Association of American Physicians & Surgeons v. FDA, 13 F. 4th 531, 540 (CA6 2021).

Thomas traces the roots of this dotrine, which seem to have been manufactured in the 1950s and 1960s:

For over a century and a half, the Court did not have a separate standing doctrine for standing that allows doctors to challenge general associations. As far as I can tell, the Court did not expressly contemplate such a doctrine until the late 1950s. In NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958), the Court permitted an association to assert the constitutional rights of its members to prevent the disclosure of its membership lists. While the Court allowed the NAACP to raise a challenge on behalf of its members, it also acknowledged that the NAACP had arguably faced an injury of its own. Id., at 459–460. The Court, however, soon discarded any notion that an association needed to have its own injury, creating our modern associational-standing doctrine. In National Motor Freight Traffic Assn., Inc. v. United States, 372 U. S. 246 (1963) (per curiam), the Court suggested that an uninjured industry group had standing to challenge a tariff schedule on behalf of its members. Id., at 247. The Court offered no explanation for how that theory of standing comported with the traditional understanding of the judicial power. In fact, the Court's entire analysis consisted of a one-paragraph order denying rehearing. Since then, however, the Court has parroted that "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members." Warth v. Seldin, 422 U. S. 490, 511 (1975) (emphasis added; citing National Motor Freight Traffic Assn., 372 U. S. 246); see also, e.g., Automobile Workers, 477 U. S., at 281.

Footnote 5 is inconsistent with this string of precedents. Indeed, Justice Thomas cited Students for Fair Admissions as an example where the Court has "consistently applied" associational standing without any consideration. We can start the deadpool for associational standing, at least where the organization lacks its own Article III injury.

Theory #3: Haven's Realty Diversion of Resources

The Plaintiffs' third theory of standing was based on diversion of resources. For example, due to the FDA's actions, the group had to conduct studies to inform their members of how to comply with the law. The Court vigorously rejects this theory.

But an organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action. An organization cannot manufacture its own standing in that way.

The Court explains that the plaintiffs have misread Havens Realty. But apart from that analysis, the Court signals that Havens Realty is on shaky grounds.

Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context. So too here.

When exactly was the Lemon test "abandoned"? Who knows? But I can safely predict that Havens Realty will suffer a similar fate. The Court all but overruled it.  And any lower court that relies on Havens Realty will be reversed. I already issued a warning for the new asylum cases that rely on Havens Realty. Havens Realty will join other precedents from the Burger Court, including Lemon, Abood, Bakke, Roe, in the ashheap of history.


Progressives may see FDA v. AHM as something of a victory, but I suspect this unanimous decision will be cited to reject many other civil rights challenges, especially if there is an upcoming Republican administration.