Fifth Circuit Remands Abortion Pill Challenge to District Court
- September 20, 2024
The Fifth Circuit vacated and remanded this week a challenge to the Food and Drug Administration's (FDA's) regulatory regime for the abortion pill mifepristone after the Supreme Court decision in June that found plaintiff emergency room doctors and medical groups lacked standing to bring the action.
The appeals court previously held the plaintiff physicians sufficiently demonstrated injuries for standing purposes, including requiring them to perform or complete an abortion contrary to their sincerely held beliefs as part of treating women suffering from mifepristone complications.
The appeals court went on to find that the FDA improperly lifted certain restrictions on mifepristone that expanded access to the drug. Alliance for Hippocratic Med. v. Food and Drug Admin., No. 23-10362 (5th Cir. Aug. 16, 2023).
However, the Supreme Court reversed, rejecting plaintiffs’ asserted conscience injuries as a basis for standing. The Court cited “the broad and comprehensive conscience protections guaranteed by federal law” as shielding the physicians from participating in the procedure or from treating mifepristone complications even in emergencies. Food and Drug Admin. v. Alliance for Hippocratic Med., No. 23–235 (U.S. June 13, 2024).
“[B]oth the district court and this court applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit. We all agreed that they do,” the Fifth Circuit panel said in their September 16 per curiam order.
The Court’s decision reaffirmed that a “a conscience injury . . . constitutes a concrete injury in fact for purposes of Article III,” but reversed because the government took a different position on federal conscience protections in this context than it did before the Fifth Circuit, the panel said.
“There’s a simple reason why our court—unlike the Supreme Court—was uncomfortable trusting federal conscience laws to protect doctors: The Government has taken precisely the opposite position on federal conscience laws in other cases and in other courts—including ours,” according to the panel.
The Fifth Circuit sent the case back to the U.S. District Court for the Northern District of Texas, which initially granted a preliminary injunction to plaintiff doctors and medical associations, Alliance for Hippocratic Med. v. U.S. Food and Drug Admin., No. 2:22-CV-223-Z (N.D. Tex. Apr. 7, 2023).
Alliance for Hippocratic Med. v. U.S. Food and Drug Admin., No. 23-10362 (5th Cir. Sept. 16, 2024