Abortion Ruling Has Nothing to Do With the Pills’ Safety or Morality

The Supreme Court’s unanimous decision ensuring access to an abortion pill took no position on its safety or morality. Instead, Justice Brett M. Kavanaugh, writing for the court, focused entirely on standing. That is the legal doctrine that requires plaintiffs to show that they have suffered direct and concrete injuries in order to sue.

Justice Antonin Scalia, who died in 2016, once succinctly summarized the standing doctrine, saying it requires plaintiffs to answer this question: “What’s it to you?”

The plaintiffs in the case, doctors and medical associations who oppose abortion, had no good answer to that question, Justice Kavanaugh wrote.

Their main theory was that there was a statistical possibility that some doctors may at some point work in an emergency room and have to treat patients suffering from complications after taking the pill, subjecting the doctors to “enormous stress and pressure” and putting making them choose between their consciences and their professional obligations.

Justice Kavanaugh rejected that reasoning. “The plaintiff doctors and medical associations are unregulated parties who seek to challenge F.DA.’s regulation of others,” he wrote.

“Specifically, F.D.A.’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone,” he wrote. “But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And F.D.A. has not required the plaintiffs to do anything or to refrain from doing anything.”