The Fifth Circuit's mifepristone opinion is wrong

Part 1 of 2: Standing

On April 7, 2023, the U.S. District Court for the Northern District of Texas issued an order that overturned the FDA’s approval of mifepristone and effectively banned mifepristone nationwide. On August 16, 2023, the U.S. Court of Appeals for the Fifth Circuit partially affirmed and partially vacated the district court’s order. The Fifth Circuit affirmed the portions of the order overturning the FDA’s loosening of certain restrictions on mifepristone in 2016 and 2021, while vacating the portion of the district court’s order overturning the FDA’s original approval of mifepristone in 2000. Notwithstanding the Fifth Circuit’s affirmance, the district court’s order will be stayed in its entirety until the Supreme Court resolves the case.

The plaintiffs should have gotten no relief. The portions of the Fifth Circuit’s opinion affirming the district court are irredeemably wrong and will be reversed by the Supreme Court by a lopsided margin. For those who have read my prior posts on this case, there will be some repetition. But as Tolstoy said about unhappy families, every indefensible mifepristone opinion is indefensible in its own way.

In today’s post, I will explain why the plaintiffs lack standing. In my next post, I will explain why the FDA did not act illegally.

All women should be banned from taking mifepristone because it might make me sad and also busy.

The plaintiffs are organizations of doctors and individual doctors who are philosophically opposed to abortion. They want to ban mifepristone because if women cannot access it, at least some women will forego surgical abortions and carry their babies to term. However, under Article III of the Constitution, a plaintiff cannot obtain judicial relief unless the plaintiff has a personal stake in the litigation—that is, standing. The plaintiff must (1) demonstrate a concrete and particularized injury, that is (2) caused by the challenged order, and that would be (3) redressed by a judicial decision in their favor.

The plaintiffs aren’t required to prescribe mifepristone to their patients, and they don’t. They nonetheless claim a personal stake in banning all women across America from taking mifepristone, even if it is perfectly legal under state law and even if the woman, aware of the risks, chooses to take it. What’s their theory?

They actually have four theories. Three of them start from the following premises:

• Some women who are prescribed mifepristone will have complications.

• These women won’t go back to the doctors that prescribed them the mifepristone. Nor will they go to an emergency room suggested to them by their doctors. Instead, they will walk into a random emergency room.

• The emergency room will happen to be the one where the plaintiff-doctors work.

• No other doctors will be available to care for the patient, leaving the plaintiff-doctors with no choice but to care for the patient.

If all of these things happen, the plaintiff-doctor will purportedly be harmed in three ways:

1. Maybe the plaintiff-doctor will be forced to complete the abortion, violating the plaintiff-doctor’s conscience.

2. Patients who take mifepristone in order to have abortions will be sad, and so the plaintiff-doctors will also be sad. (Or as the Fifth Circuit puts it: “Second, treating mifepristone patients imposes considerable mental and emotional stress on emergency-room doctors. This is due to the unique nature of chemical abortions, which, according to the plaintiff-doctors, frequently cause ‘regret’ or ‘trauma’ for the patients and, by extension, the physicians.”).

3. Even if the doctors aren’t sad, they’ll be busy taking care of the patients, which will divert their attention from other things they’d rather be doing.

Theory #4 is different. The doctors theorize that if mifepristone is legal, women will take it, have complications, blame their doctors, and sue their doctors, forcing the doctors to submit claims to their malpractice insurers, which will raise costs for the malpractice insurers and cause them to raise premiums on all doctors, including the plaintiff-doctors who don’t prescribe mifepristone. Got that?

The Fifth Circuit thought these theories were sufficient to support standing. They’re not. I will organize my objections into five categories:

1. The statistical evidence cited by the court does not come close to substantiating the plaintiffs’ standing.

2. The plaintiffs’ declarations cited by the court also do not come close to substantiating the plaintiffs’ standing.

3. The court’s holding directly contradicts binding Supreme Court precedent.

4. The court’s decision has absurd implications which the court unconvincingly sweeps away.

5. This is a ridiculous way of running the legal system that undermines basic principles of judicial restraint and separation of powers.

After that, I will say a few words about the Fifth Circuit’s discussion of third-party standing. Finally, I will comment on Judge Ho’s theory that doctors who are deprived of the opportunity of watching women give birth sustain an “aesthetic injury” similar to the injury sustained when animal lovers are prevented from watching animals. (Spoiler alert: Pregnant women and babies are different from animals.)

The statistical evidence cited by the court does not come close to substantiating the plaintiffs’ standing.

What are the odds that a woman will take mifepristone, have a terrible complication, wander into a random emergency room, and stumble into one of the plaintiff-doctors, who won’t be able to hand off the patient to someone else? I don’t know, and neither does the Fifth Circuit. But, really low I’d guess.

The Fifth Circuit relies on two categories of evidence:

1. General statistical data regarding mifepristone complications.

2. Declarations from doctors who are on leadership teams of national pro-life organizations.

Let’s start with Category 1. The Fifth Circuit cites various statistics regarding the percentage of women who have complications from mifepristone (pp. 15-16). Example:

According to the most updated REMS medication guide, in studies conducted in the United States, between 2.9% and 4.6% of women visited the emergency room after taking mifepristone. Mifeprex Prescribing Information at 8 tbl.2 (Jan. 2023). Some women experience especially severe conditions, such as sepsis (.02%) or hospitalization relating to abortion (.04% to .06%), and some women require a blood transfusion because of heavy bleeding (.03% to .05%).

The data FDA cited in its 2000 approval memo is similar. For the American clinical trial, surgical intervention was required for 7.9% of women (4.5% for the French studies). Approval Memorandum at 1. Of that percentage, 1.2% of women required surgery due to heavy bleeding (.3% for France) and .12% required a blood transfusion (.11% for France). Id. FDA and Danco agree that over five million women have taken Mifeprex since it was first approved. These figures show that thousands of women, and as many as hundreds of thousands, have experienced serious adverse effects as a result of taking the drug, and required surgery or emergency care to treat those effects.

This type of evidence is of little use in assessing whether the plaintiffs face a risk of seeing a patient who has previously taken mifepristone. At most, we could come up with a back-of-the-envelope figure for the total number of women who have gone to the emergency room in the past 23 years after taking mifepristone. But this tells us nothing about the chances that a plaintiff-doctor will see an ER patient. For example, these statistics tell us nothing about how often women having complications go to the doctor who prescribed them the pills, or an ER doctor to which they were referred, as opposed to randomly walking into some other ER where the plaintiff-doctors work. These statistics also tell us nothing about often these plaintiff-doctors—or any doctors—are the only doctors in the ER, thus preventing them from referring the patient to another doctor. On these issues, the court cites no further statistical evidence; it proceeds directly to the declarations of the plaintiffs.

The Fifth Circuit also says this (p. 16 n.2):

To be clear, we do not understand the Medical Organizations and Doctors’ standing theory as applying only to women who present to the emergency room with severe complications such as those listed above. Rather, they also contend that they are injured by treating women who experience less urgent medical side-effects because such treatment forces the doctor to participate in the abortion process.

Yeah, but what are the odds in that case that the doctor will be forced “to participate in the abortion process”? Usually the patient will just go to the doctor who prescribed her the mifepristone. If she decides to switch doctors, what are the odds that she’ll decide to cold-call one of the declarants, who are mostly members of the leadership team at the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG)? And if she does, and if it’s not an emergency, why wouldn’t the plaintiff-doctor refer her to someone else? The Fifth Circuit nowhere stops to consider whether these scenarios are plausible.

Another problem is that these statistics refer to the total number of ER visits. But, as I’ll explain in more detail in my next post, the Fifth Circuit affirms the district court only with respect to certain changes the FDA made in 2016 and 2021. (In 2016, the FDA increased the gestational age limit from 49 to 70 days, reduced the number of required in-person clinic visits to one, and allowed healthcare providers other than doctors to prescribe it. In 2021, the agency decided to suspend enforcement of the in-person dispensing requirement.). So to establish standing, the doctors need to show the statistical effect of those changes.

On that, there is a massive statistical record compiled by the FDA, but unfortunately none of it favors the plaintiffs, which is the reason these changes were approved in the first place. So instead all we have more vague plaintiff declarations (pp. 30-34). No statistical evidence, nothing.

There’s also no statistical evidence regarding the claim of insurance premiums going up. The plaintiffs could have checked the effect on premiums in 2000 (when mifepristone was approved) or 2016 (when restrictions were loosened). They don’t.

To sum up, I’d characterize the statistical evidence compiled by the plaintiffs as nearly, perhaps completely, useless in establishing that they themselves face imminent injury.

The plaintiffs’ declarations cited by the court also do not come close to substantiating the plaintiffs’ standing.

The plaintiffs’ declarations aren’t helpful either.

The court relies primarily on the declarations of Dr. Francis, Dr. Skop, and Dr. Wozniak, all of which are block-quoted (pp. 16-19). All are leaders in pro-life organizations. Dr. Francis is a Board Member and the CEO-Elect of AAPLOG; Dr. Skop is the Director of Medical Affairs at the Charlotte Lozier Institute (a pro-life organization) and a former Board Member at AAPLOG; and Dr. Wozniak is AAPLOG’s Secretary.

This does not mean that their declarations are necessarily unreliable, but it is a source of bias. This is especially problematic because the declarants have never been deposed or cross-examined. How do you think the Fifth Circuit would react if plaintiff-doctors challenging an FDA rule restricting abortion drugs consisted of the CEO of Planned Parenthood, a Board Member of Planned Parenthood, and the Secretary of Planned Parenthood?

The declarations are also maddeningly vague. There’s no specific numbers about the doctors’ own practices that might allow us to evaluate their risk of harm. For instance, how many patients is Dr. Francis really seeing per year, given that her part-time, possibly full-time, job is to be AAPLOG’s CEO? There are anecdotes about prior patients the doctors have seen, but there are no specifics. No documents support any of the doctors’ assertions. None of the patients submit declarations to support the accounts. We just have vague recollections by pro-life activists that at some point in the past, unspecified patients were harmed by drugs prescribed by other doctors.

But even taking a closer look at the declarations, they’re still exceptionally weak. Even the portions of the declarations that the Fifth Circuit block-quotes don’t come close to establishing the plaintiffs’ standing.

The plaintiffs’ first theory of standing is that if mifepristone is legal, they might experience conscience violations in the future. Amazingly, none of the declarants ever claim that they were forced to perform an abortion against their will. Nor do they claim that their own consciences were ever violated.

Let’s start with Dr. Francis. She says this (pp. 16-17):

[T]he patient presented back at our emergency room with heavy vaginal bleeding and unstable vital signs as a result of taking chemical abortion drugs. One of my partners was able to detect a fetal heartbeat. Due to the amount of bleeding that she was experiencing and evidence of hemodynamic instability, however, my partner had no choice but to perform an emergency D&C. The patient needed to be hospitalized overnight for close observation after the D&C. Not only did my partner need to provide several hours of critical care for this patient, but my partner also needed to call in a back-up physician to care for another critically ill patient. And because the preborn baby still had a heartbeat when the patient presented, my partner felt as though she was forced to participate in something that she did not want to be a part of—completing the abortion.

Sounds bad, but it’s all about her partner, who is never identified and is not a declarant or a plaintiff. We also don’t know how Dr. Francis knows, for instance, that the “unstable vital signs” were “as a result of taking chemical abortion drugs”—her “partner” was caring for this patient who was prescribed drugs by yet another doctor.

Dr. Francis again (p. 17):

After taking the chemical abortion drugs, [the patient] began having very heavy bleeding followed by significant abdominal pain and a fever. When I saw her in the emergency room, she had evidence of retained pregnancy tissue along with endometritis, an infection of the uterine lining. She also had acute kidney injury, with elevated creatinine. She required a dilation and curettage (D&C) surgery to finish evacuating her uterus of the remaining pregnancy tissue and hospitalization for intravenous (IV) antibiotics, IV hydration, and a blood transfusion.

As the Fifth Circuit grudgingly acknowledges in a footnote, this patient received the drugs from India (p. 17 n.3). Still, the Fifth Circuit says this incident “supports the proposition that mifepristone sometimes causes severe adverse events” (p. 17 n.3). No it doesn’t. Dr. Francis has no idea whether the drug was in fact mifepristone if the patient ate some random thing she got on the Internet from India. And overturning FDA approval would increase the frequency of people attempting to obtain drugs from India. Also, Dr. Francis doesn’t allege any kind of conscience violation here—she merely says she saw the patient in the emergency room, not that she actually performed the abortion or did anything that violated her conscience. So I don’t understand how this incident supports Dr. Francis’s standing.

Next up to bat is Dr. Skop (pp. 17-18):

In my practice, I have cared for at least a dozen women who have required surgery to remove retained pregnancy tissue after a chemical abortion. Sometimes this includes the embryo or fetus, and sometimes it is placental tissue that has not been completely expelled. I have cared for approximately five women who, after a chemical abortion, have required admission for a blood transfusion or intravenous antibiotics or both.

For example, in one month while covering the emergency room, my group practice admitted three women to the hospital. Of the three women admitted in one month due to chemical abortion complications, one required admission to the intensive care unit for sepsis and intravenous antibiotics, one required a blood transfusion for hemorrhage, and one required surgical completion for the retained products of conception (i.e., the doctors had to surgically finish the abortion with a suction aspiration procedure).

In the first paragraph, she says she’s cared for women who, previously, underwent surgery or required admission for a blood transfusion or intravenous antibiotics. She doesn’t say she performed the surgery or admitted the patients, only that she “cared for” these women. In the second paragraph, she talks about her group practice’s activities, not herself. Also, Dr. Skop doesn’t say her conscience was violated by any of this. Her declaration says: “The drugs mifepristone and misoprostol may cause serious complications for the women and girls who take them.” She gives these statements as examples. So she’s offering anecdotes designed to show that mifepristone is unsafe; she’s not even trying to substantiate harm to her own conscience.

Dr. Skop again (p. 18):

In my office, I treated one young woman who had been bleeding for six weeks after she took the chemical abortion drugs given to her by a doctor at a Planned Parenthood clinic. After two follow-ups at Planned Parenthood, during which she was given additional misoprostol but not offered surgical completion, she presented to me for help. I performed a sonogram, identified a significant amount of pregnancy tissue remaining in her uterus, and performed a suction aspiration procedure to resolve her complication.

Once again, Dr. Skop does not present this as a conscience violation, but instead as an example of “patients presenting with complications from chemical abortions.” It also makes no sense to treat this as a conscience violation, because Dr. Skop saw the patient “in her office” after two follow-ups, i.e., not in the emergency room. Dr. Skop easily could have referred this patient to someone else.

Dr. Wozniak now (pp. 18-19):

One of my patients, who was about nine weeks pregnant, had previously been treated by hospital staff for a pulmonary embolism with anti-coagulants. She was advised that she could not seek a chemical abortion because it was contraindicated due to the medications; yet the woman left the hospital and sought an abortion at Planned Parenthood of Indiana.

The woman was given mifepristone by the doctor at Planned Parenthood and took the drug. The woman called an Uber for a ride home from Planned Parenthood. The woman began to experience bleeding and other adverse side effects from the mifepristone. The woman’s Uber driver did not take her home because she was so ill and instead brought her to the hospital’s emergency department. At the hospital, the woman came under my care. The woman had not yet taken the second abortion drug, misoprostol. I treated the patient for the adverse effects she suffered and told her not to take the misoprostol given to her by Planned Parenthood because of the grave risk that she could bleed out and die. The woman had a subsequent ultrasound, which showed that her unborn child was still alive. I advised the internists treating this patient to avoid administering certain medications that could harm the patient and her unborn child.

For example, in one month while covering the emergency room, my group practice admitted three women to the hospital. Of the three women admitted in one month due to chemical abortion complications, one required admission to the intensive care unit for sepsis and intravenous antibiotics, one required a blood transfusion for hemorrhage, and one required surgical completion for the retained products of conception (i.e., the doctors had to surgically finish the abortion with a suction aspiration procedure).

Some of these details are sketchy (does she really know what happened at Planned Parenthood and in the Uber?). But even setting that aside, there’s no conscience violation in here. In the first paragraph, Dr. Wozniak tells the patient not to take the misoprostol and tells the internist not to harm the unborn child. In the second paragraph, we have other doctors doing things, not her.

To wrap up, the Fifth Circuit is unable to identify a single clear example of a conscience violation that any of the plaintiff-doctors have experienced in their careers. To be sure, Dr. Skop says (p. 20) she is concerned about conscience violations, but this doesn’t mean that she faces the risk of such violations. The Fifth Circuit cites statements by declarants that “others they knew have been required to complete a failed chemical abortion against their consciences, or to provide related care” (p. 20). The “others they knew” aren’t plaintiffs. How can the plaintiffs show an imminent risk of their conscience being violated if it’s never happened?

The government made another argument in the Fifth Circuit—that the doctors didn’t face a risk of harm to their conscience because federal law gave them the right to conscientiously object. In response, the Fifth Circuit points to a government guidance document that allegedly requires doctors to perform emergency care, including abortion care notwithstanding conscience objections (p. 28). The government says the Fifth Circuit is misinterpreting the guidance document, the Fifth Circuit points to statements in a government brief allegedly saying otherwise (p. 28). The funny thing here is that a different district court in Texas enjoined that guidance, yet the Fifth Circuit still relies on it to substantiate the purported conscience injury. In other words, it’s heads I win, tails you lose. The government issues guidance that (allegedly) requires doctors to provide emergency abortion care, and the Texas courts (1) say the guidance is illegal for the benefit of pro-life doctors, and (2) simultaneously assume the guidance is legal for purposes of banning mifepristone, also at the behest of pro-life doctors. Anyway, all of this is a sideshow given that the doctors don’t substantiate any risk of a conscience injury.

But wait! Let’s say I’m misinterpreting these declarations and in fact, the doctors did experience conscience injuries from these encounters.

That wouldn’t support standing to challenge the 2016 and 2021 changes, which are the only FDA actions for which the plaintiffs’ claims aren’t time-barred. So, have the plaintiffs alleged any conscience violations, or even any bad personal experiences, attributable to those changes?

No. Literally none! The plaintiffs don’t recite anecdotes that they’ve suffered conscience violations because of these changes. They don’t recite anecdotes that anyone suffered conscience violations because of these changes.

In fact, the doctors’ declarations don’t even state they saw any specific patients as a result of these changes. Instead, the plaintiffs offer pseudo-expert declarations predicting that bad things are happening or will happen because of the changes with no actual examples.

For example, the court block-quotes this statement from another doctor, Dr. Foley (p. 31):

Under the current practice by those who prescribe and dispense chemical abortion drugs like mifepristone and misoprostol, there is no follow-up or additional care provided to patients. Instead, with no established relationship with a physician, patients are simply left to report to the emergency room when they experience adverse events.

And here’s this perspective from Dr. Barrows (p. 33):

Mifepristone and misoprostol are dangerous drugs that can potentially harm women. Relaxing the required medical supervision and oversight for patients taking these drugs puts women’s health at risk. By eliminating the in-person dispensing requirement and the requirement for a post-abortion follow-up, the FDA has exposed women to a higher likelihood of undetected serious complications. Specifically, the expanded use of telemedicine for chemical abortions means that some women who are beyond 70 days’ gestation because they are mistaken or wrong about the gestational age of their unborn child will take these drugs outside of the appropriate window.

Reading this discussion you would have no idea there is an absolutely massive agency record with numerous randomized controlled studies with tens of thousands of participants testing these specific claims. None of this is cited. It’s just a bunch of pro-life activists making un-cross-examined, non-specific, numbers-free assertions that the FDA’s changes put women’s health at risk.

Let’s turn to the other theories of standing. Theory #2 is that the doctors will be stressed out, which the court treats as derivative of Theory #1 (p. 29):

[T]he mental and emotional stress shown here is best understood as additional to the Doctors’ conscience injuries, not independent from them. The threat of being forced to violate a sincerely held moral belief is cognizable at least in part because the event would involve acute emotional and psychological harm. Maddox, 19 F.4th at 65; Clemens, 48 F.4th at 155. The emotional and mental strain of which the Doctors testify is of the same nature, albeit of an arguably lesser magnitude. In this way, the “enormous stress and pressure” that the Medical Organizations and Doctors cite augment the Doctors’ conscience injuries, but does not provide a separate basis for Article III standing.

I agree with the Fifth Circuit that “doctors being stressed out” isn’t an independent Article III injury. Emergency rooms are stressful places! So we’re back to the conscience injuries, which have never happened.

Theory #3 is that “doctors are injured because they must divert time and resources away from their ordinary practice to treat mifepristone patients.” (p. 21). The court says: “economic harm—like damage to one’s business interest—is a quintessential Article III injury.” (p. 26). “The Doctors therefore sustain a concrete injury when they are forced to divert time and resources away from their regular patients.” (p. 26).

Come on. This theory suggests that literally any time emergency room doctors see anyone, they’re injured. After all, any time the emergency room doctor sees someone, she’s not seeing someone else she could be seeing at that moment. All patients requires resources that could otherwise be directed to other patients. Do we really think that all day, every day, a doctor’s being “injured” when she sees a patient because she could be seeing a different patient? There’s no allegation that the doctor gets a lower paycheck when she sees a hypothetical mifepristone user who walked into the emergency room as opposed to seeing anyone else.

Theory #4 is that “the Doctors sustain a concrete injury when mifepristone patients expose them to greater liability and increased insurance costs.” (p. 26). Here, the declarations are particularly weak because the doctors don’t actually say anything about their insurance premiums. The Fifth Circuit merely cites generic statements about mifepristone being risky (p. 22):

See Dr. Barrows Declaration ¶ 23 (testifying that providing emergency treatment to women suffering complications because of taking mifepristone puts doctors in “riskier, emergent medical situations”); Dr. Jester Declaration ¶ 20 (“These situations are naturally higher risk for both the patient and for the physician providing care.”).

Two points here. First, the question is not whether mifepristone is risky in the abstract, but instead whether mifepristone is risky relative to the alternatives, which are either surgical abortion or carrying the pregnancy to term. My guess is that carrying the pregnancy to term is riskier from the insurer’s perspective than a mifepristone abortion, especially given the high damages that sometimes occur in malpractice cases related to childbirth. But I don’t know. Neither do the plaintiffs, who apparently have no idea what has happened to their malpractice premiums in the 23 years since the FDA approved mifepristone.

Second, I’m struck here by the Fifth Circuit’s apparent failure to recognize that there is a difference between a plaintiff alleging something and that thing being true. The allegations related to increased insurance premiums are embarrassingly speculative and unsupported, and yet the Fifth Circuit feels it doesn’t need to kick the tires on them at all. It just quotes the declarations (p. 22), and then announces that the plaintiffs experienced concrete harm based on their premiums going up (pp. 27, 54). “The plaintiffs say it, ergo it is true” is not how courts are supposed to decide cases, regardless of how passionately the judges may support the plaintiffs’ side.

The court’s holding directly contradicts binding Supreme Court precedent.

In addition to crediting the claims of the specific declarants, the Fifth Circuit also adopts a statistical approach to standing. The theory goes like this: because there are allegedly hundreds of doctors in the plaintiff organizations, there’s got to be at least one of them who will suffer a conscience violation at some point or another, and that statistical probability is enough to give the organizations standing (p. 20):

The Organizations offered testimony from representatives of the American College of Pediatricians, American Association of Pro-Life Obstetricians and Gynecologists, Christian Medical and Dental Associations, and Catholic Medical Association—each of whom explained that their membership includes thousands of doctors and hundreds of OB/Gyns and emergency-room doctors. See Dickerson Declaration ¶¶ 3, 13; Dr. Harrison Declaration ¶ 8; Dr. Barrows Declaration ¶ 5; Dr. Van Meter Declaration ¶ 8. Given the large number of women who experience serious medical complications due to mifepristone, and the large number of association members who are emergency-room doctors, the Medical Organizations argue, it is highly likely that one or more of their members will be required to provide emergency care to a mifepristone patient in the near future.

The Fifth Circuit’s reasoning on this issue contradicts Summers v. Earth Island Institute, 555 U.S. 488 (2009). The court’s efforts to reconcile its opinion with that case are utterly unpersuasive.

In 2002, fire burned a large area of the Sequoia National Forest. In 2003, the Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of that Forest. Under the Forest Service’s rules at the time, for salvage sales of less than 250 acres, the Forest Service did not provide a period of public comment and did not make an appeal process available.

In Summers, the plaintiffs were environmental organizations with hundreds of thousands of members. Some of those members were harmed by the Forest Service’s failure to permit the public to comment on the Burnt Ridge Project. For example, one member submitted a declaration stating that he had repeatedly visited the Burnt Ridge site, that he had imminent plans to do so again, and that his interests in viewing the flora and fauna of the area would be harmed if the Burnt Ridge Project went forward.

However, by the time the case reached the Supreme Court, the challenge to the Burnt Ridge Project had been settled. The plaintiffs nonetheless sued the Forest Service, alleging that the Forest Service’s rules refusing to permit public comment on less-than-250-acre salvage sales were illegal.

Their theory of standing was quite intuitive. The Forest Service acknowledged that “it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations in the reasonably near future.” Meanwhile, one of the plaintiff organizations, the Sierra Club, had over 700,000 members. These were environmental organizations, composed of people who like to explore forests. It was statistically almost certain that some of the organizational members would be harmed by some of the thousands of future salvage-timber sales in exactly the same way that the organizational member was harmed by the Burnt Ridge Project.

The dissent, written by Justice Breyer and joined by Justices Stevens, Souter, and Ginsburg, would have held that this statistical certainty is enough. Justice Breyer asked: “How then can the Court deny that the plaintiffs have shown a ‘realistic’ threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, esthetic, and environmental interests of the plaintiffs' members?” Of course, the plaintiffs could not pinpoint which member would be harmed or where the future salvage-timber sale would be, but Justice Breyer observed: “a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates.”

But the majority opinion—by Justice Scalia, and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—concluded that the plaintiff organizations lacked associational standing.

In their view, statistical certainty was not enough. The Court began by holding that the declaration of a specific individual, Jim Bensman, did not establish that Bensman had standing. Although Bensman alleged past injury, this allegation was insufficient for standing because, among other things, “it relates to past injury rather than imminent future injury that is sought to be enjoined.” And although Bensman also alleged future injury, he lacked standing because he failed to “allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the national forests.”

Next, the Court rejected the dissent’s “statistical certainty” theory on the following basis:

The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "`700,000 members nationwide, including thousands of members in California'" who `use and enjoy the Sequoia National Forest,'" post, at 1154 (opinion of BREYER, J.), it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service's procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.

The Court then walked through several prior cases and explained: “This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity.”

To me, this case is open and shut under Summers. The plaintiffs claim that some members of their organizations are statistically likely to be harmed, which is the exact claim rejected in Summers.

The Fifth Circuit disagrees. First, the Court offers, with a coy “to be sure” preface, a statement acknowledging that it’s aware of how Summers directly forecloses its reasoning (p. 25):

To be sure, the majority expressed skepticism with that theory. See id. at 497 (criticizing the dissent’s “hitherto unheard-of test for organizational standing: whether . . . there is a statistical probability that some of [the plaintiffs’] members are threatened with concrete injury”).

Quite so! The Fifth Circuit then says that it doesn’t care that its holding directly violates Supreme Court precedent because it perceives that the Supreme Court has a “bigger concern.” (p. 25). Aha!

So what’s the “bigger concern” that justifies violating Supreme Court precedent? It’s that the plaintiffs “lacked evidence of the number of association members who intended to visit the parks, and when” (p. 25). The Fifth Circuit quotes the Supreme Court’s statement that “In part because of the difficulty of verifying the facts upon which such probabilistic standing depends, the Court has required plaintiffs claiming an organizational standing to identify members who have suffered the requisite harm—surely not a difficult task here, when so many thousands are alleged to have been harmed.” (p. 25).

But that is the exact problem in this case! The individual declarants—Dr. Francis, Dr. Skop, etc.—can’t plausibly claim they’ll be injured in the future. Hence, the plaintiffs rely on the theory that to quote the Fifth Circuit, “it is highly likely that one or more” of the organizations’ members “will be required to provide emergency care to a mifepristone patient in the near future” (p. 20). But which members? The organizations don’t know. Unlike in Summers, there’s really no way for them to know, which is why this is a weaker, rather than stronger, case for standing than Summers. The fact remains that the organizations have no idea which one of their members will face these harms, so they’re just saying “one or more” members face those harms, which Summers says you can’t do. The Fifth Circuit quotes language in Summers saying the plaintiffs suffered from a lack of evidence, but the plaintiffs in this case suffer from the exact same—in reality, a greater—lack of evidence.

The Fifth Circuit wraps up its analysis this way:

Summers does not stand for the proposition that courts must categorically reject standing when a plaintiff alleges that a defendant’s action puts hundreds of association members at risk of future injury. It stands for the proposition that courts must treat such assertions with caution. The standard for making this showing is high, but the Medical Organizations and Doctors have met it. They have provided multiple examples of organization members who sustained the exact harm they say will recur. They have explained that the conditions producing that harm remain in place. And they have testified to having hundreds of members who are reasonably likely to be harmed. At this stage, that is enough.

I don’t understand how “that is enough” under Summers. The whole point of Summers is that it’s not enough. The plaintiffs provided the declaration of the plaintiff harmed at Burnt Ridge, evidence that the lack-of-notice problem still existed, and evidence that hundreds of organizational members intended to travel to future national forests and sustain the same type of harm. Summers held that’s not enough because you’ve got to identify the specific environmentalist going to a specific forest, a level of specificity the plaintiffs in this case obviously don’t have given the speculative nature of their claims. There’s no principled way to distinguish Summers.

The court’s decision has absurd implications which the court unconvincingly sweeps away.

The inescapable logical implication of the court’s decision is that plaintiff-doctors can challenge any government action that might cause any unspecified subset of the population to get sick. This is because it is always possible that someone-or-other will ramble into an emergency room and chance upon a plaintiff-doctor, stressing the plaintiff-doctor out.

A few examples:

1. Guns. Plaintiffs will be able to challenge any government rule that relaxes a gun safety restriction. It’s always possible that if the restriction is relaxed, then someone, somewhere, will get shot, walk into the emergency room, happen upon a plaintiff-doctor, and make the plaintiff-doctor feel sad or even complicit in the shooting.

2. Gas stoves. Plaintiffs will have standing to try to force the government to ban gas stoves. Someone, somewhere, might misuse a gas stove, burn himself, go to the emergency room, and stress the doctor out or even make the doctor feel complicit in global warming.

3. Cars. Think some airbag requirement is unnecessarily stringent? Sorry, government, you’re getting sued by a plaintiff-doctor who’s worried that someone will be in a car accident, lose the benefit of the airbag requirement, go into the hospital, and “injure” a doctor by causing the doctor to see him.

I could go on and on. And I haven’t even talked about mental health! There are armies of psychiatrist-plaintiffs who could bring claims like this. It’s like Six Degrees of Kevin Bacon—name any rule, and I’ll connect the rule to a psychiatrist having standing.

How about … student loans! It’s extremely easy to put forth: (1) Evidence that being in more debt leads to mental health issues, and (2) Declarations from psychiatrist-plaintiffs that there seem to have been a lot of people in the ER having mental health crises over their student loans being out of control. And so the path to standing is paved and wide: Unless the government relaxes student loan rules, some stressed-out student somewhere in America might have a mental health crisis, walk into the ER, and bump into the psychiatrist. Honestly I’m not sure there’s a single rule the government could possibly promulgate that a sufficiently clever plaintiff-doctor can’t challenge.

So how does the court deal with this problem?

Here’s what it says:

Danco argues that the Medical Organizations and Doctors’ standing argument is “limitless,” and worries that its logic would allow doctors to challenge firearm laws based on the stress involved with treating gunshot victims. … But we see several limits. Foremost is the rigorous evidence needed to prove traceability and redressability. The plaintiffs in Danco’s hypothetical would lack standing unless they could prove that a particular law caused there to be more gunshot victims, and that enjoining enforcement of the law would cause there to be fewer. That is a tall order, to say the least.

“Rigorous evidence,” seriously? In the gun hypothetical, it would in fact be the easiest thing in the world to come up with evidence exactly as strong as the supposedly “rigorous evidence” in this case. Remember our two categories of evidence here:

1. General statistics that sometimes, mifepristone causes people to come to the emergency room.

2. Vague, un-cross-examined declarations by the leadership of pro-life organizations saying that they’ve encountered patients with complications.

OK, so suppose a Republican administrations abolishes, say, the no-ghost-guns rule, and some anti-gun plaintiff-doctors sue trying to keep it in place. Can they put forth these two categories of evidence? Obviously yes!

1. It will be extremely easy to show that if ghost guns are legal, people will use ghost guns, and so some people will end up in the emergency room. This is like arguing that water is wet. Of course people will use ghost guns, at least occasionally. That’s why they’re there! Even if you’re a Second Amendment Guy who thinks that legal ghost guns will only be used on bad guys, doesn’t matter; even bad guys in emergency rooms might stress doctors out.

2. It will be extremely easy to find anti-gun doctors who could write declarations exactly like the declarations here. “I am a doctor. One of my partners saw someone who was shot by a ghost gun. It stressed me out.” Totally unverifiable, but how is that different from this case?

But c’mon, we all know what will happen in the next Fifth Circuit case. The court’s just going to say that the evidence in this case was “rigorous,” and the evidence in the guns case isn’t “rigorous,” case closed.

How about conscience? Can’t the anti-gun doctors assert moral objections exactly like the doctors here? Can’t a doctor say that treating a gunshot victim makes him “complicit” with gun violence, just like a doctor treating a mifepristone user makes him “complicit” with abortion? Maybe not, according to the Fifth Circuit:

Equally significant is the requirement that a plaintiff be threatened with injury akin to being forced to violate his or her sincerely held conscience beliefs. That sort of injury will be absent except in the most exceptional cases.

It’s not hard to predict what will happen. In the Fifth Circuit, cases in which right-wing doctors complain about their consciences will be “exceptional,” cases in which left-wing doctors complain about their consciences won’t.

The Fifth Circuit’s reasoning is utterly manipulable. By ratcheting standing requirements down so dramatically, while simultaneously declaring that perhaps different outcomes will be reached in less “exceptional” cases, the court is leaving the door wide open for a Conservative Plaintiffs Win, Liberal Plaintiffs Lose rule. Rules of general applicability like standing aren’t supposed to work this way.

This is a ridiculous way of running the legal system.

My problems with this litigation run deeper. The plaintiffs’ claims are utterly contrary to bedrock norms of separation of powers and judicial restraint.

I cannot imagine a worse way of resolving the legality of mifepristone than by catering to the speculative concerns of the plaintiff-doctors.

Consider the perspective of a woman in, say, Massachusetts who wants a mifepristone abortion at, say, eight weeks of pregnancy. She wants to use mifepristone. Her doctor wants her to use mifepristone. The state says it’s perfectly legal to use mifepristone. The FDA says it’s perfectly safe for her to use mifepristone. But if the Fifth Circuit’s order stands, it will be illegal for her to use mifepristone because there’s some minuscule possibility that some woman, somewhere in America, will have a complication from an abortion and might randomly come across one of the plaintiffs. It doesn’t matter if this woman would ever do this. She can swear on the Bible that she’ll go to the doctor that prescribed her the mifepristone or an emergency room that she knows is welcoming. Too bad. She—and millions of women exactly like her—have to have surgery or continue pregnancies they don’t want to continue so that the plaintiff-doctors are bit less stressed out and possibly pay a bit less money in malpractice premiums.

Imagine how the woman would react when this is explained to her. She will think, correctly, that the legal system is a ridiculous joke. I cannot think of a better way to obliterate confidence in the legal system than to allow such litigation to proceed.

It does not have to be this way. Article III is designed to prevent exactly this outcome. Article III, and the separation-of-powers principle it embodies, protects the citizenry from courts who use the gripes of individual plaintiffs as a tool to reorder society.

Justice Scalia’s classic article, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” could have been written for this case. He writes:

Contrast that classic form of court challenge with the increasingly frequent administrative law cases in which the plaintiff is complaining of an agency's unlawful failure to impose a requirement or prohibition upon someone else. Such a failure harms the plaintiff, by depriving him, as a citizen, of governmental acts which the Constitution and laws require. But that harm alone is, so to speak, a majoritarian one. The plaintiff may care more about it; he may be a more ardent proponent of constitutional regularity or of the necessity of the governmental act that has been wrongfully omitted. But that does not establish that he has been harmed distinctively—only that he assesses the harm as more grave, which is a fair subject for democratic debate in which he may persuade the rest of us. Since our readiness to be persuaded is no less than his own (we are harmed just as much) there is no reason to remove the matter from the political process and place it in the courts.

And more:

Even if the doctrine of standing was once meant to restrict judges “solely, to decide on the rights of individuals,” what is wrong with having them protect the rights of the majority as well? They’ve done so well at the one, why not promote them to the other? The answer is that there is no reason to believe they will be any good at it. In fact, they have in a way been specifically designed to be bad at it—selected from the aristocracy of the highly educated, instructed to be governed by a body of knowledge that values abstract principle above concrete result, and (just in case any connection with the man in the street might subsist) removed from all accountability to the electorate. That is just perfect for a body that is supposed to protect the individual against the people; it is just terrible (unless you are a monarchist) for a group that is supposed to decide what is good for the people. Where the courts, in the supposed interest of all the people, do enforce upon the executive branch adherence to legislative policies that the political process itself would not enforce, they are likely (despite the best of intentions) to be enforcing the political prejudices of their own class.

That’s exactly what happened in this case. The plaintiffs found themselves pro-life judges in Texas who think that they know better than the benighted women, doctors, state legislators, and FDA officials who think it’s perfectly fine for an eight-week-pregnant woman to take medicine to end her pregnancy rather than go through surgery. The plaintiffs, relying on their amazingly speculative standing theories, pushed against that open door and earned themselves a court order allowing them to impose their philosophy on the entire country. I cannot think of a case in American history that more perfectly crystallizes the virtue of limiting litigation to actual cases and controversies.

Doctors trying to ban their patients from taking mifepristone are not aligned with their patients.

The Fifth Circuit offers a tentative view that doctors have third-party standing to sue on behalf of their patients (p. 35). The Fifth Circuit’s reasoning here is mind-boggling.

To begin, the doctrine of third-party standing is irrelevant here. That doctrine applies when a plaintiff who is harmed sues to invoke a third-party’s right, as when an abortion doctor threatened by laws targeting abortion doctors sues and claims the law violates a patient’s constitutional right to an abortion. I don’t understand why that doctrine is relevant here, where the plaintiffs aren’t asserting any particular rights held by their hypothetical patients.

But setting that point aside, the doctrine of third-party standing applies only when the plaintiff’s interests and the third party’s interests are aligned. Here this is obviously not satisfied; a woman who wants to take mifepristone is not aligned with a doctor trying to ban her from taking mifepristone.

The Fifth Circuit observes:

Indeed, the Court has “long permitted abortion providers to invoke the rights of their actual or potential patients.” June Med. Servs., 140 S. Ct. at 2118. We fail to see how this case is materially different.

Really?? You don’t “see how this case is materially different”? There is an obvious reason why abortion providers are aligned with their patients. Both of them want the abortion to happen! The purpose of targeting the abortion doctor is to prevent the abortion doctor from seeing the patient. You can’t see the difference between a doctor trying to give a patient the procedure she wants and a doctor trying to ban the patient from getting the procedure she wants?

The Fifth Circuit responds to this point as follows:

FDA and Danco deny that third-party standing applies, saying that the Doctors have a “diametrically opposed” or “antagonistic” relationship with women experiencing severe complications as a result of taking mifepristone. FDA Br. at 33; Danco Br. at 32. That is so, Defendants contend, because the relief the Doctors seek would reimpose certain conditions of using mifepristone. That dubious proposition misunderstands the nature of the would-be representation. The Doctors pursue third-party standing to represent their patients’ interest in avoiding or limiting the dangerous side effects that sometimes occur when a woman takes mifepristone.

OK, so the court seems to be acknowledging that the doctors aren’t aligned with a woman who is deciding whether to take mifepristone. Instead, it seems to think that the doctors are aligned with their hypothetical future patients who have already taken mifepristone and are suffering complications.

This theory makes zero sense because:

1. These patients won’t “benefit” from a ban on mifepristone. They’ve already taken the mifepristone! The only patients who would be affected by banning mifepristone are people who haven’t taken it yet and are hence, definitionally, not the doctors’ patients.

2. The doctors’ interests are clearly not aligned with those patients because the doctors’ theory of standing is that they’re harmed by seeing them! The doctors want to not see them to avoid purported conscience violations, and when the doctors do have to see them, here’s the doctors’ compassionate point of view: “This diversion of resources, the Doctors say, directly harms their medical practices” (p. 21). And the court thinks those doctors are aligned with the patients they are coming to court to complain about?!

3. Also, how can we be sure that the patients actually want mifepristone to be banned? Believe it or not, a woman can take mifepristone, have a complication, and still think she made the right decision. The court seems to imagine that every woman who has a mifepristone complication will suddenly have a revelation that taking the mifepristone was a mistake, abortion is evil, and she’s now perfectly aligned with AAPLOG Board members who want to abolish abortion for all women across America. The concept that a woman might take mifepristone and not regret it is completely lost on the Fifth Circuit.

Babies are not cows

Judge Ho’s concurring opinion adds an additional theory in support of the plaintiffs’ standing. He opines that when a doctor assists a mother in giving birth, the doctor experiences aesthetic pleasure, similar to the pleasure that people experience when they view pretty animals. If women are allowed to take mifepristone, some women whose babies the plaintiffs might otherwise deliver will have abortions, stripping the doctors of those happy moments. This, according to Judge Ho, is an aesthetic injury similar to the injury experienced by environmentalists when animal habitats are destroyed.

This sounds like I am caricaturing his views, but he really does argue this. He says (p. 68):

It’s well established that, if a plaintiff has ‘concrete plans’ to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal.

And then (p. 69):

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

He quotes Dr. Jester saying he feels happy when he sees Mom and Baby following a delivery (p. 69): “When my patients have chemical abortions, I lose the opportunity . . . to care for the woman and child through pregnancy and bring about a successful delivery of new life.”

Judge Ho then observes (p. 69) that “every circuit, including our own, has concluded that, when a federal agency authorizes third parties to harm flora or fauna that a plaintiff intends to view or study, that satisfies all of the requirements for Article III standing.” His argument wraps up as follows (p. 70):

The FDA has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest. And this injury is likewise redressable by a court order holding unlawful and setting aside approval of that abortifacient drug.

I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.

Let’s pause for a moment for some artwork in support of Judge Ho’s aesthetic vision. Here one may observe a pregnant woman, banned from using mifepristone, in a bucolic setting among cows:

And here adjacent to a pond of lovely flamingos walks a woman who, banned from taking mifepristone, has given birth:

Quite exquisite! But does the pleasure in gazing at these ladies give rise to standing?

Let’s return to Judge Ho’s conclusion (p. 70): “I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.”

Um, I can think of a basis. Perhaps we can start with the fact that women and babies aren’t animals?

In the American legal system, the displeasure of being unable to view another person being happy isn’t a cognizable legal injury. So, for example, I don’t have standing to sue for a prisoner to be released from prison based on my own aesthetic pleasure from seeing him grinning when he walks free. I don’t have standing to sue on behalf of an immigrant to enter the United States to see his joy in reaching our shores.

But wait. Here, Judge Ho isn’t even suggesting there’s standing to see a particular person being happy. He’s suggesting that there’s some statistical probability that an unspecified woman, deprived of mifepristone, will have a baby, and the smiles of Mom & baby will later be viewed by, say, Dr. Jester, making Dr. Jester happy. So, Judge Ho’s theory implies that I, or you, or anyone, has standing to seek a general relaxation of asylum requirements, because statistically, some unspecified, possibly not-even-born-yet immigrant who would benefit from that relaxation might move near where I live, and smile, giving me pleasure. This theory of standing would obliterate all limits on Article III, because all government actions might make someone somewhere smile.

Why does our legal system distinguish between the aesthetic pleasure of viewing animals and the aesthetic pleasure of viewing humans? Well, recognizing that humans aren’t animals, our legal system trusts humans to stand up for themselves. If an expectant parent is injured, she can file her own lawsuit. If she doesn’t, it’s not up to a doctor who doesn’t even know her to file a lawsuit to protect his right to “delight” in watching her.

And perhaps there’s less “delight” than Judge Ho thinks. Judge Ho observes: “Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones.” Perhaps a woman who is forced, against her will, to carry her baby to term because Judge Ho banned her from taking mifepristone might not be as profoundly joyful as Judge Ho might want. I don’t think our legal system should view a doctor’s observation of these women’s experiences the same way as it views a person on safari staring through binoculars at gazelles.

What about the babies? In our legal system, parents, and only parents, have standing to bring lawsuits on behalf of their babies. Even if I think my neighbor’s kid is cute, I don’t have standing to file a lawsuit to protect my “delight” in seeing her.

Judge Ho declares: “The FDA has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest.” No. Plaintiffs do not have “an interest” in other peoples’ children, much less other people’s hypothetical children. If someone filed a lawsuit declaring that he had “an interest” in witnessing my baby’s future babbling, I would probably go to the police and seek a protective order.

And … you want to talk about speculative? To establish standing, the plaintiffs must show a personal aesthetic injury. So Judge Ho’s vision seems to be that once a woman is banned from taking mifepristone because of AAPLOG’s lawsuit, she’ll let bygones be bygones, get excited to become a Mom, switch doctors, and share her beautiful moments with the very AAPLOG members who successfully sought a court order interfering with her reproductive freedom. All this so the AAPLOG members can have the types of stimulating visual experiences they attain when they see animals at the zoo.

I think that’s enough about Judge Ho. My next post will address the merits.