The Supreme Court’s unanimous decision ensuring access to an abortion pill took no position on its safety or morality. Instead, Justice Brett M. Kavanaugh, writing for the court, focused entirely on standing. That is the legal doctrine that requires plaintiffs to show that they have suffered direct and concrete injuries in order to sue.
Justice Antonin Scalia, who died in 2016, once succinctly summarized the standing doctrine, saying it requires plaintiffs to answer this question: “What’s it to you?”
The plaintiffs in the case, doctors and medical associations who oppose abortion, had no good answer to that question, Justice Kavanaugh wrote.
Their main theory was that there was a statistical possibility that some doctors may at some point work in an emergency room and have to treat patients suffering from complications after taking the pill, subjecting the doctors to “enormous stress and pressure” and putting making them choose between their consciences and their professional obligations.
Justice Kavanaugh rejected that reasoning. “The plaintiff doctors and medical associations are unregulated parties who seek to challenge F.DA.’s regulation of others,” he wrote.
“Specifically, F.D.A.’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone,” he wrote. “But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And F.D.A. has not required the plaintiffs to do anything or to refrain from doing anything.”
It was significant, he wrote, that so-called conscience protections in federal law ensured that the plaintiffs never have to perform abortions or deal with possible complications from them.
The standing doctrine can mean that some legal questions never get answered in federal court, Justice Kavanaugh wrote. “Some issues,” he wrote, “may be left to the political and democratic processes.”
There are other avenues to try to limit the availability of the pills, he added.
“Citizens and doctors who object to what the law allows others to do may always take their concerns to the executive and legislative branches and seek greater regulatory or legislative restrictions on certain activities,” he wrote. That statement echoed a sentiment in the court’s 2022 decision overturning Roe v. Wade, which said the issue of abortion should be left to the elected branches.
Standing is a neutral legal principle that applies to the right and left alike, Chief Justice John G. Roberts Jr. wrote in an influential 1993 law review article while he was a lawyer in private practice.
“It restricts the right of conservative public interest groups to challenge liberal agency action or inaction,” he wrote, “just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”
Walter Dellinger, a former acting U.S. solicitor general, once said a rigorous approach to standing was consistent with Chief Justice Roberts’s statement at his confirmation hearings that judges should aspire to be umpires, whose only job is to call balls and strikes.
“Before any judge begins calling balls and strikes,” Mr. Dellinger said, “he must first make sure the batter at the plate is an actual player and not just a fan who ran on the field.”
