FDA v. Alliance for Hippocratic Medicine -- Great Result, But Some Concerns About the Future of Associational Standing at SCOTUS

In my prior life as a practicing lawyer, I litigated several voting rights cases on behalf of the Lawyers' Committee for Civil Rights Under Law , a wonderful organization that I still support through my membership on the Board. My work for the Lawyers Committee included a time on leave from my law firm, serving as senior staff counsel during the 2020 election, and as outside pro bono counsel.

One of the issues we typically had to litigate was the standing of our individual and organizational clients to bring cases in federal court.? In voting rights cases, it was relatively straightforward to find registered or potential voters who were or would be adversely affected by state or local government action imposing onerous registration requirements, limiting access to polling places, or prohibiting or limiting access to ballot drop boxes, to name a few examples.? Similarly, to the extent that our clients were organizations (for example, during the 2020 election, we often sought to intervene or file as amicus on behalf of various state chapters of the NAACP in the many challenges brought by the Trump campaign to the results in various states), we would take advantage of the Supreme Court’s jurisprudence on associational standing, starting with Warth v. Seldin, 422 U. S. 490 (1975).

Thus, it was with some trepidation that I approached reading the Supreme Court’s decision last week in FDA v. Alliance for Hippocratic Medicine (available at 23-235 FDA v. Alliance for Hippocratic Medicine (06/13/2024) (supremecourt.gov), finding that the individual and organization plaintiffs seeking to challenge the FDA’s 2016 and 2021 decisions to increase the ease and availability of mifepristone, commonly known as the “abortion pill,” did not have standing.? Don’t get me wrong – I celebrate the outcome and the continued availability of mifepristone. ?But when this Court gets a hold of standing issues, my radar goes off because, inevitably, there ends up being some restriction or narrow reading of standing doctrine.

My fears were mostly allayed, although some language regarding associational standing is concerning.? Justice Kavanaugh’s opinion for the unanimous Court hewed closely to existing doctrine for the most part and found on the facts that the individual physician plaintiffs and the organizational plaintiffs did not have standing to challenge the FDA’s decisions.? The Court’s opinion reviewed the origins of standing requirements in Article III's “case or controversy” language, noting that the two basic requirements are that the plaintiff demonstrates 1) “concrete” and “particularized” “injury-in-fact” resulting from government action, and 2) that the government action caused the injury.? FDA, slip op at 5-12.? The Court then rejected two arguments by the individual physician plaintiffs.? First, the physicians argued that increased pregnancy complications from the use of mifepristone could result in them being forced, against their firmly held beliefs against abortion, to perform such procedures under emergency circumstances.? The Court responded that federal law, as well as many states, have “conscience” protections for physicians who do not want to perform abortions.? FDA, slip op at 14-17. Second, the physicians argued that the increased use of mifepristone would divert resources from care for other patients and cause an increase in emergency room visits.? The Court made short shrift of this argument, pointing out that if every government decision that could cause an increase in medical care conferred standing on physicians and other healthcare workers, the standing doctrine would have no meaning.? FDA, slip op at 18-21.

?My concerns grew a bit when the Court began to address the standing of the standing of the medical organizational plaintiffs.? Typically, standing for organizations is based either on injury to its members or increased expenditures by the organization in response to government action.? The Court did not even address the issue of associational standing based on injury to its members, either because the argument was not made or because it had already found that individual physician members did not have standing.?

The Court went on to reject arguments that the FDA’s actions caused the organizations to spend funds on studies of mifepristone and to divert resources from other worthy causes:

?"[A]n 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."

FDA, slip op at 22.? Unfortunately, this is typically the way many organizations establish injury-in-fact and causation.? The Court did not cite any prior case for this proposition. The Court also distinguished Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), noting that in that case, the organization was able to establish standing because it had a core business function that was adversely affected by the defendant’s actions. The Court noted, somewhat gratuitously, that “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context.”? I am concerned that this language could end up severely limiting organizational standing, but perhaps, as it did with Havens, it will confine this holding to the facts here.

Not to be outdone, Justice Thomas filed a concurrence, joining in the Court’s opinion but taking the opportunity, as he often does, to lay down a marker for a position he thinks the Court should take in a future case – namely, whether associational standing can be squared with Article III’s “case or controversy” requirement. I must admit that he makes some interesting and provocative points.? For example, he compares associational standing to the emergence of “universal injunctions,” which seek to apply equitable remedies beyond the parties before the court.? He also notes that associational standing can be seen as a way to avoid the requirements of Rule 23 of the Federal Rules of Civil Procedure governing class actions.?? I doubt the Court is prepared to ditch associational standing entirely, but whatever you think of him, Justice Thomas seems to view himself as writing for the ages.

So, all in all, it is a great result, but I retain some concerns about the broad language the Court used to find that the organizational plaintiffs in this case did not have standing. It remains to be seen how this holding plays out in the lower courts as public interest groups seek to challenge government action and use increased expenditures and diversion of resources to establish standing.???????????????

What do you think?? Let me know in the comments.?