Mifepristone in the Supreme Court—Comments on Oral Argument (Updating)

[Note: I will be updating this post during the oral argument.]

Solicitor General Elizabeth Prelogar began today’s oral argument in FDA v. AHM with standing, emphasizing the plaintiffs’ argument for Article III standing is based upon an attenuated chain of causation that fails to satisfy the requirements of Article III standing. This was a good start. In turning to the consequences of allowing this suit to go forward, I think it was an error to focus exclusively on the consequences for reproductive choice and women seeking to terminate pregnancies. Allowing standing in this case poses the risk of opening the door to suits against all manner of FDA decisions, such as decisions to approve vaccines (among other things). Courts have generally rejected standing in such suits. Is that really something the Court wants to change?

Asking the first question (as has become traditional), Justice Thomas wants to know, if not these plaintiffs, who could sue to challenge the FDA’s approval (a question that Justice Alito picks up later). This is a good question, but there is no constitutional requirement that Article III standing must exist for someone. Put another way, there can be cases in which no one has Article III standing to challenge the federal government’s failure to regulate someone else, particularly where (as here) Congress has not created a cause of action or purported to authorize such suits. Under Lujan, the standing inquiry can be eased when Congress has created a procedural right or authorized suit, but it has never done so here. As Justice Thomas notes in response, the plaintiffs may have a stronger argument relying upon some of the Court’s associational standing cases (such as Havens Realty, for instance), but I doubt the Court really wants to rely upon that outlier decision. (Indeed, some of us thought the Court was poised to cut back on Havens Realty in Acheson Hotel.) 

Pressed on this point by Justice Alito, SG Prelogar effectively acknowledges that there may not be any specific individual who can sue the FDA for revising ts regulation of mifepristone. The theory the plaintiffs have pressed, she notes, does not come within miles of the requirements of Article III standing as the Court has articulated them in prior cases. Whether there is some other theory out there that might work is not a question the government has to answer.

Asked to distinguish Havens Realty by Justice Barrett, SG Prelogar notes that in Havens Realty there was direct harm to the organization, due to its contractual obligations and the like. In other words, Havens Realty was a far narrower decision than some lower courts have assumed (which is something we saw in the emoluments clause litigation). Prelogar is correct on this point. Havens Realty is not the open door for associations that some circuit courts have turned it into.

While most of the early questioning of SG Prelogar focuses on standing, Justice Alito turns to the merits. Prelogar effectively responds to AHM’s claim that FDA failed to adequately consider the potential combination of regulatory changes it made. Then Justice Alito raises the Comstock Act: Should the FDA have considered the statute? No, Prelogar answers, because the Comstock Act is not in the FDA’s lane. This is precisely correct. The FDA does not enforce Comstock (and Comstock was clearly unenforceable prior to the Dobbs decision). Put another way, the Department of Justice could enforce the Comstock Act in a future administration, but the FDA was not obligated to focus upon it. Moreover, the FDA relied upon an Office of Legal Counsel memorandum on the enforceability of the Comstock Act.

Justices Barrett, Kagan, and Kavanaugh all raise the issue of whether a doctor’s conscience objection is sufficient for standing in a case like this. SG Prelogar maintains that federal law protects the legitimate conscience objections of doctors who object to performing abortions or providing abortion-inducing medications. Moreover, the FDA’s loosening of the regulation of mifepristone does not implicate such conscience claims.

. . . .(developing . . . updating during the live argument) . . . .

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For those interested, here are my prior blog posts about this case and the issues it raises:

• “The Next Abortion Battlegrounds,” June 22, 2022;
• “Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA,” March 8, 2023;
• “AHM v. FDA: A Contrary View and a Rejoinder,” March 28, 2023;
• “Blue-State AGs Have A Mifepristone Lawsuit of Their Own,” March 29, 2023;
• “Two (Wrong) Mifepristone Court Rulings in One Day,” April 8, 2023;
• “The Good and Bad of the Fifth Circuit’s Abortion Pill Ruling,” April 13, 2023.
• “BREAKING: Supreme Court to Consider Fifth Circuit’s Abortion Pill Decision,” Dec. 13, 2023.
• Supreme Court Denies Red State Effort to Intervene in Mifepristone Case, Feb. 20, 2024.
• Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively?, Mar. 26, 2025.

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