Mifepristone and the rule of law, part II
Kinda wonky, but best in depth coverage of the issues raised in this horrendously bad decision.
https://adamunikowsky.substack.com/p/mifepristone-and-the-rule-of-law-9c4
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And there is plenty to say about the judge’s legal reasoning. The decision is indefensible. In this post, I will walk through the decision and explain just how bad it is.1
Standing
The plaintiffs are organizations of pro-life doctors seeking to overturn the FDA’s approval of mifepristone. As I explained in my prior post, they lack standing. Under Clapper v. Amnesty International USA, the plaintiffs bear the burden of proving a “certainly impending” injury from the FDA’s approval of mifepristone. Neither the organizations, nor their doctor-members, can meet that standard. The plaintiffs’ philosophical disagreement with abortion does not give them standing to seek a federal court order banning all doctors nationwide from prescribing mifepristone to their patients.
The district court nonetheless finds that the plaintiffs have both associational standing—i.e., standing based on injuries suffered by their doctor-members—and organizational standing—i.e., standing based on injuries to the organizations themselves.
The court starts with associational standing. It begins by reciting assertions from the plaintiffs’ filings and and declaring, without additional analysis, that they establish standing. For example, the court quotes the plaintiffs’ assertions that “chemical abortion drugs can overwhelm the medical system” and “consume crucial limited resources” such as “blood for transfusions.” (p. 7).
These allegations do not establish standing. To establish standing, the doctor-members must show that they personally face an imminent risk of concrete and particularized injury. Vague speculation that someday, somewhere, some unspecified doctor will be “overwhelmed” by an onslaught of patients coming to the ER after taking mifepristone does not establish that these particular doctors face an imminent risk of a concrete and particularized injury.
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