The Potential Role of the Conscience Objection in a SCOTUS Decision Rejecting Plaintiffs' Standing in the Mifepristone Case

Cutting to the chase, I agree with Amy Howe's assessment (on SCOTUSblog) of yesterday's Supreme Court oral argument in FDA v. Alliance for Hippocratic Medicine that, one way or another, SCOTUS will likely reverse the Fifth Circuit, with the result that mifepristone remains available without the requirement of in-person dispensation and in accordance with the protocol approved in 2016. The simplest way to get there would be to hold that the plaintiffs lack standing. As Professor Segall argued on this blog on Monday, although standing doctrine is notoriously manipulable, the plaintiffs' argument for standing is extraordinarily weak here.

To recap very briefly, here's the chain of causation the plaintiffs invoke to try to demonstrate an imminent injury:

(A) The FDA changes in 2016 (allowing mifepristone to be used somewhat later in pregnancy than before, at a lower dose, and without the requirement to report certain adverse events) and 2021 (allowing dispensation by mail or equivalent) increased the risk that people ending their pregnancies with mifepristone would experience complications requiring emergency room visits;

(B) Those extra trips to the ER in turn increase the risk that one or more of the plaintiffs or their members who are ER physicians will need to treat such a patient;

(C) Providing such treatment sometimes amounts to completing and thus participating in the performance of an abortion (even when the physician merely removes dead tissue), which violates the moral scruples of those plaintiff ER physicians;

Thus,

(D) Plaintiffs have demonstrated that FDA's 2016 and 2021 actions imperil plaintiffs by trenching on their anti-abortion moral scruples.

Much of the early phases of the oral argument focused on whether that string of armbone-connected-to-the-wristbone-connected-to-the-fingerbone reasoning was too speculative to amount to an imminent injury. Based on the Court's prior cases, it almost certainly is too speculative but . . . wait for it . . . Justice Alito--champion of every plaintiff's day in court--thought this sort of statistical piling on was fine because the Court allowed standing to be shown this way in environmental law cases from the 1970s that the Court has all but repudiated in subsequent narrower decisions (like this one authored by Justice Alito himself!).

Accordingly, although I can probably count three votes for saying that plaintiffs' causal chain is too attenuated, I don't see the Court getting to five that way. However, a holding for the FDA based on lack of standing is reachable on other possible grounds. Let's consider two related ones.

(1) Because of federal statutory protection for institutions and individuals with conscientious objections to performing abortions (or doing what they regard as participating in abortions), Step (C) of the plaintiffs' chain of reasoning seems especially unlikely to materialize. If a woman who took mifepristone visits the ER because of complications (that are somehow traceable to the 2016 or 2021 changes) and one of the plaintiff doctors is on call, that doctor can simply decline to provide treatment.

The plaintiffs' lawyer had essentially one response to this seemingly fatal objection to her clients' position: in a medical emergency, there will not be time to secure the legal exemption. But that's got to be wrong, even putting aside the fact that, as anyone who has ever spent hours waiting to be seen in an emergency room knows, the term "emergency room" is highly misleading. Federal law's conscience objection forbids after-the-fact punishment of medical personnel who refused to participate in an abortion; the plaintiff doctors do not need to treat a patient suffering mifepristone-related side effects while waiting for authorization from hospital bureaucrats to refuse treatment. They have the authorization already from federal law.

I'm setting aside the repugnant cruelty of an exercise of "conscience" on the part of an ER doctor who refuses to treat a patient in need based on a moral judgment about the prior acts that brought the patient to the ER. If I were at a restaurant and I saw someone choking on a piece of meat, I would surely try to help clear their airway, notwithstanding the fact that as a vegan I disapprove of meat eating. I would have thought that the ethical obligation of medical professionals is to treat rather than to judge their patients. Apparently the version of Hippocrates celebrated by the Alliance for Hippocratic Medicine not only opposed abortion (as reflected in the traditional oath) but endorsed the proposition first, last, and always, do no good for anybody connected to an abortion. But I digress.

It's very easy to get to four votes for the proposition that the federal conscience objection means the plaintiffs' claim for standing fails at step (C). In addition to the three Democratic appointees, there's Justice Kavanaugh, who asked exactly one question during the entire oral argument. He asked the Solicitor General to confirm that "under federal law, no doctors can be forced against their consciences to perform or assist in an abortion." When she so confirmed, Justice Kavanaugh said "thank you" and then remained silent for the duration. I would thus expect that if the Court finds no standing on this basis, the opinion would make very clear that the conscience objection applies.

(2) Justice Jackson at various points suggested that the problem with the plaintiffs' case was the mismatch between the alleged injury--violation of their conscience--and the remedy--invalidation of the FDA authorizations. If there's an injury to the plaintiffs' conscience, Justice Jackson said, then the remedy should be expanded protection for conscience, not invalidation of the FDA action for everyone else. Justice Gorsuch jumped on this bandwagon to raise his familiar objection to nationwide injunctions: all of the other actors who aren't parties are being subject to the remedy here.

In her rebuttal, SG Prelogar pushed back against what she took to be the Jackson/Gorsuch position that the Fifth Circuit opinion should be vacated and narrower relief--in the form of some broader guarantee of conscience--should be substituted. As she noted, the plaintiffs sued the FDA, which doesn't play any role in administering the conscience exemptions, so that's not the kind of relief that it can be ordered to provide. That's clearly right as a matter of law, but I wonder whether SG Prelogar (who, to be clear, is among a handful of the very best advocates to appear before the Court in the roughly 35 years since I've been paying attention) might have phrased the point a bit differently so as not to seem to be pushing back against the Jackson/Gorsuch view. 

With the benefit of some extra time, the SG might have put the point this way: Justice Jackson and Justice Gorsuch, I completely agree with your point that the relief the Fifth Circuit granted doesn't match the injury alleged. The decision below thus has to be reversed, but the government has no objection to this Court doing so by making clear that the statutory conscience objection is sufficiently capacious to address all of the plaintiffs' concerns. Such an answer would have married the Jackson/Gorsuch position to the Kavanaugh position, thus locking in at least five votes.

That said, I suspect that the Court will get to that result anyway and that Chief Justice Roberts and Justice Barrett would also join. I could even imagine Justice Thomas joining a decision based on standing (although he was not wholly off base to worry that under the government's view, no one ever has standing to challenge FDA approval of a drug, a point I'll discuss on Friday). The reason I say Justice Thomas might be in play is that he might regard the case as an opportunity to strike a final death blow to the broadest interpretation of the tester-plaintiff case of Havens Realty Corp. v. Coleman, which seems to allow any organization that opposes any government policy to manufacture standing for itself by engaging in activities to oppose the policy (like using some of its resources to track and oppose the policy) and then claiming that the diversion of those resources is an Article III injury. If the plaintiffs are going to lose on standing grounds anyway, Justice Thomas might calculate that it's worth joining the majority in exchange for language repudiating that broad view of Havens.

Hence, we could be left with a Christmas tree of an opinion on standing grounds: Justice Kavanaugh gets an endorsement of the broad conscience objection; Justice Barrett, who also expressed interest in the scope of the conscience objection, shares that present; Justice Gorsuch gets some further repudiation of nationwide injunctions; Justice Thomas gets an express narrowing of Havens; and Chief Justice Roberts gets to avoid having his beloved Court further tarnished by another obviously ideological decision. The result could thus be 8-1, with only Justice Alito refusing to go along with any ruling that does not restrict abortion; he would get (and deserve)  a lump of coal.