Noah Feldman
On Thursday, the U.S. Supreme Court unanimously rejected lower courts’ outrageous attempts to block access to the abortion medication mifepristone. But it wasn’t because the conservative justices reconsidered the views that led them to overturn Roe v. Wade in 2022.
Instead, the ruling tells us mostly that, in a presidential election year, with the Dobbs decision behind them, the justices didn’t want to issue a decision that could have caused a national uproar by further limiting abortion access. It may also be a subtle signal to conservative judges in lower courts.
In the case, Food and Drug Administration v. Alliance for Hippocratic Medicine, the court held that the doctors who brought the case lacked standing. Standing doctrine is the Supreme Court’s favorite tool to avoid deciding a controversial case. According to Supreme Court precedent, to bring a case in federal court, a plaintiff must have suffered a concrete injury. That of course raises the question: What counts as a concrete injury? The mischief lies in the various answers that a court can give.
Here, the court held that the anti-abortion doctors who brought the case didn’t suffer any concrete injury when the FDA made mifepristone more easily available by mail and telemedicine. If that sounds sensible and correct, that’s because it is. But conservative lower courts had found that standing did exist because it was possible to imagine some set of circumstances in which one of these doctors might have been harmed.
The Supreme Court’s conservative justices had the option of agreeing with that logic. But they did not. By holding that there was no standing, the justices were able to throw out the pro-life doctors’ case without saying anything whatsoever about mifepristone or the FDA’s approval processes.
Herein lies the magic of standing as a tool. It enabled the court to produce a result that doesn’t appear doctrinally inconsistent with Dobbs; that didn’t pass judgment on the extremely dubious attacks by lower courts on the FDA’s approval procedures; and that sidestepped a political furor. Standing doctrine, for wholly legitimate reasons, provided the court with a neutral “get out of jail free” card.
And yet, to careful Supreme Court watchers and legal insiders, the ruling is full of meaning and messages. Above all, it can be read as a signal that, having won most of its big-ticket conservative wish-list cases during Biden’s first term in office, the majority would prefer not to enrage the general public any further than it already has, especially in an election year.
Overturning Roe had been the primary objective of the conservative legal movement for nearly five decades, and the court’s conservatives were going to do that no matter the consequences. But they clearly thought there was no need to take their success to the next level in the mifepristone case, despite the urging of conservative lower courts. (It’s worth noting, however, that a second abortion ruling, involving Idaho’s strict ban, is still pending.)
If the Supreme Court in the next few weeks finds a way to uphold the Texas law that denies guns to domestic abusers, as seems likely, that would be another example of not further enraging the public after previously issuing a radical new opinion — as the conservative majority did in 2022’s Bruen decision.
Another, subtler message of the decision is that Chief Justice John Roberts’ preference for achieving conservative ends by gradual means, rather than by drastic ones, may become the modus operandi of the conservative majority in the near future. But make no mistake: The conservative constitutional revolution will still be under way. It just won’t be quite so overt.
The other cases to watch over the next couple of weeks are the ones about the Chevron doctrine, which is essential to administrative law — and thus to the agencies that ensure our air is clean, our water is safe, and so on. The most extreme conservatives on the court would like to overrule the Chevron precedent altogether. Roberts can be counted on to propose a subtle evolution of the doctrine that would weaken it but not create a headline saying that the court had again overturned a decades-old precedent.
Finally, there is the most delicate message of all, one susceptible to multiple interpretations: Arguably, the Supreme Court’s conservative majority is telling conservative lower courts to slow the onslaught of radically conservative decisions so that it won’t have to find creative ways of overturning them.
Movement conservatives could respond that the Supreme Court isn’t really telling the lower courts to hold off, only showing that it is willing to do the job of reining them in. But deciding on standing tells lower courts: You went too far, not in the content of your ruling, but in taking the case at all.
In the rarified world of judges, that counts as a scolding. Or at least it should.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
