Of Beetles and Babies: The Possible Futures for Standing after FDA v. Alliance for Hippocratic Medicine

By: Erik Baptist, originally published June 6, 2024, The Federalist Society

The U.S. Supreme Court is poised to issue a decision in FDA v. Alliance for Hippocratic Medicine. The Court’s decision could have a significant impact on lawsuits that challenge federal agency actions on a broad range of subjects—from energy development projects to pesticide approvals.

In the FDA case, four pro-life medical associations and four individual doctors sued the FDA for its actions concerning abortion drugs. The FDA has argued that these medical professionals lack standing to sue the agency—even assuming its actions removing abortion drug safeguards were unlawful and threatened women’s health.

So how does a case against the FDA over abortion drugs have anything to do with beetles?

It started over thirty years ago when the U.S. Supreme Court issued the seminal standing decision Lujan v. Defenders of Wildlife. Writing for the Court, Justice Antonin Scalia stated that “[i]t is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm” and thus has standing to sue the government. Years later, Justice Scalia’s majority opinion in Summers v. Earth Island Institute doubled down on this standing doctrine when explaining that someone who wants to “view[] the flora and fauna” of a particular location has standing to sue.

Environmentalists have used this Supreme Court precedent to justify their standing when challenging federal agency actions across the country. For example, environmentalists successfully thwarted the construction of the Keystone XL Pipeline by citing their “professional, scientific, and aesthetic interests” in the American burying beetle, which resided in the pipeline’s proposed pathway.

An environmental group was also allowed to sue federal agencies because one of its whale-watching members experienced “heartbreak” when she learned about the death of a North Atlantic right whale. The federal government had opened the whales’ feeding grounds to gillnet fishing gear, and this particular whale died “from entanglement.” Another group was similarly able to sue because one of its members was affected “emotionally” by the alleged increased endangerment of these whales, causing her “heartache.”

In yet another case, environmentalists relied on their members’ “scientific, professional, educational, recreational, aesthetic, moral, and spiritual interests” to sue the federal government over its alleged failure to protect the dunes sagebrush lizard as a listed endangered species. The U.S. Fish and Wildlife Service settled with the environmentalists and recently finalized this listing. The oil and gas industry has stated that this listing substantially threatens production in the energy-rich Permian Basin of New Mexico and Texas.

The examples of these cases can go on and on.

In the pending FDA challenge, the plaintiff doctors have alleged that the agency’s actions—which decreased the safeguards required for women taking the abortion drugs—have increased the risk that women who take abortion drugs will end up in the emergency room with complications. This, in turn, causes the pro-life plaintiff OB-GYN hospitalists to divert from their desired professional goal of helping women bring new life into this world and participate in surgical interventions to treat abortion-drug complications. The doctors say it grieves them to see women harmed by the FDA’s actions. Removing the remains of a baby from the mother also causes these doctors much heartache.

One of the plaintiff OB-GYN hospitalists said that when she “must perform surgery to deal with complications from chemical abortions, this takes attention away from . . . multiple laboring patients” preparing to give birth. She has “cared for at least a dozen women who have required surgery to remove retained pregnancy tissue after a chemical abortion.” It is “heartbreaking” for her to watch the “suffer[ing] caused by “[u]nsupervised chemical abortion.”

In both the environmental lawsuits and the pending FDA challenge, the plaintiffs seek to pursue their professional and personal interests, but the federal government’s actions prevent them from doing so while causing them emotional harm.

The U.S. Court of Appeals for the Fifth Circuit found that the plaintiff doctors had standing to sue the FDA for multiple reasons. In a concurring opinion, Judge James Ho identified an additional reason: “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.”

During oral argument in the Supreme Court, Justice Neil Gorsuch also appreciated this connection. He asked the FDA how its argument fits with the Court’s environmental law cases because “we’ve got to find a way to stitch it all together.”

In response, the FDA asserted that there was an “attenuated link” between the FDA’s actions and the harm to the doctors. But the plaintiff doctors contend otherwise, having submitted agency records that show the FDA repeatedly directed women to emergency rooms and hospitals—where the doctors work and treat women for abortion-drug complications.

In its briefing, the FDA also argued that the plaintiffs could not rely on statistical probability of future harm for unnamed association members. The plaintiffs’ response pointed to the testimony of three named doctors—one association member and two of the individual doctor plaintiffs—who have each treated women for emergency medical conditions from abortion drugs a dozen times or more. The doctors couple this evidence with the FDA’s admission that its data showed “there may be more frequent ED/urgent care visits” caused by its recent actions.

As the Court held in Massachusetts v. EPA, “[e]ven a small probability of injury is sufficient . . . provided of course that the relief sought would, if granted, reduce the probability.” This allowed an environmental association to sue the federal government on behalf of a member who “has never yet seen a right whale and is concerned by ‘[a]nything that reduces the probability’ of her seeing one.”

And the plaintiff doctors explain that restoring the safeguards that the FDA removed will likewise reduce the probability of their injuries.

Given its decades-old precedent, the Supreme Court must (1) find that the doctors can sue the FDA, (2) overrule its precedent, or (3) create a double standard. There are no other options.

Will the Court follow the latter course and privilege beetles over babies? Lizards over life? Or will the Court’s decision constrain environmentalists from challenging federal agency actions over aesthetic and emotional injuries? Or, as the plaintiff doctors urge, will the Court apply its precedent in a consistent manner and find that they have standing to sue the FDA? We will know soon enough.

Erik Baptist serves as senior counsel at Alliance Defending Freedom, focusing on administrative litigation and regulatory advocacy.