ACSH Explains: Legal Standing & Why You Must Suffer Harm to Sue

A recent Supreme Court decision allowing the continued sale of the abortion drug, Mifepristone, was not based on FDA approval of the drug. Nor was it a ratification of the FDA’s relaxing prescription requirements. Rather, the Court decided the plaintiffs did not have “standing” to sue.  With that determination, they didn’t need to enquire further into the argument's merits - and tossed the case.
Image by Mohamed Hassan from Pixabay

What is “Standing”?

In the unanimous Supreme Court decision, the determinative issue was the lack of standing of the plaintiffs: four pro-life medical associations and several doctors who claimed “moral” injury and “distress” by the continued sale of the drug. The individual doctors also claimed their resources (time and money) would be diverted by treating patients for whom the drug failed and would require “extra care.” As I previously wrote predicting this outcome, their factual claims appeared specious, if not supercilious. 

The Court was more circumspect; in reversing the lower courts, they merely re-iterated the time-honored precepts of our democracy, noting that 

“Article III standing is a ‘bedrock constitutional requirement that this court has applied to all manner of important disputes….”

Article III of the Constitution creates the notion of judicial powers vested in a federal Supreme Court (along with lower courts)—the judiciary’s sole purpose: to adjudicate “cases and controversies” between claimants. 

In other words, these courts do not furnish advisory opinions, are barred from engaging in untethered theoretic determinations, and don’t pontificate in the abstract – even when such advice is sought by President George Washington [1]. Nor do courts serve as a venue for general complaints about governmental functioning. The venue for that is the legislature. The purpose of federal courts is solely to provide concrete remediation for actual disputes. Anything else would be considered “judicial overreach.” 

As the Court wrote in the  Mifiprestone  opinion, 

“Standing is built on a single basic idea – the idea of the separation of powers.”

Three tests must be satisfied before standing accrues: 

  • Proof of an actual or imminent concrete injury
  • Direct causation between the defendant’s acts and the injury (aka “standing causation”)
  • Reparability of the harm by the judicial remedy sought 

Actual or Imminent Injury

This requirement ensures plaintiffs “don’t roam the country in search of a governmental wrong.” The law insists that the plaintiffs cannot be “mere bystanders” but must have a “personal stake” in the dispute and the outcome to avoid “decisions made in the rarified atmosphere of a debating society.” Nor are federal courts to serve as “a vehicle for the vindication of value interests by concerned bystanders.” Rather, judicial determinations are to be made within a concrete factual context conducive to legal resolution. The injury must be personal and individual, actual or imminent. A general, moral, legal, ideological, or policy beef won’t cut it. 

Direct Causation

“Without the causation requirement, courts would be ‘virtually continuing monitors of the wisdom and soundness’ of government action.”

Where the plaintiff is not directedly regulated by the law being contested, when the regulation pertains to others, proving the causation requirement becomes more difficult. Plaintiffs cannot rely on “speculation about the unfettered choices made by independent actors not before the courts” – the links in the causal chain between the illegal conduct and injury must be direct and not “too speculative or too attenuated.”

In the Mifepristone case, the court ruled that the doctors and medical associations are unregulated parties who challenged the FDA’s regulation of others – since the plaintiffs do not prescribe the drug nor have they documented any instance where they could be required to do so. Instead, their claim is the “legal, moral, ideological objections” to its use by others [emphasis in the original]. [2] 

To manufacture standing, the plaintiffs raised complicated and imaginary scenarios, which the court criticized, e.g., claiming that the relaxed regulation “may cause downstream conscience [or economic] injuries to individual members of the associations.” 

While conscience injuries are recognized as a concrete legal injury, the court refused to be corralled into believing this is a realistic situation. Existing laws protect physicians from performing procedures to which they are conscience-averse. As the court makes abundantly clear:

“the plaintiffs have not shown – and cannot show – that FDA’s actions will cause them to suffer any conscience injury.”

Stated differently, the court held that “the law has never permitted doctors to challenge the government's loosening of general public safety requirements simply because more individuals might then show up in emergency rooms or in doctors’ offices with follow-on injuries.” Recognizing that all drugs carry risks or side effects and that approval of new drugs may increase doctor’s visits to treat resultant complications, the court ruled such claims are too tenuous to confer standing.

Association Standing

The court then soundly rejected the standing claims raised by the pro-life groups. Holding that the plaintiffs cannot “spend” themselves, by increased lobbying or educational costs, into standing, re-iterating that the association must suffer causally related injury-in-fact, noting that standing does not accrue merely by virtue of the “intensity of the litigant’s interest.”

Just What is the Status of Association Standing

The case of Environmental Working Group v. the US FDA might provide additional insight. Here, two associations sought to compel the FDA to regulate (including bans, injunctions, and/or requiring additional warnings on) formaldehyde-containing hair straighteners. Citing a litany of studies establishing the dangers of the chemical, the groups contended that a few of their members were actually injured (an organizational injury on behalf of its members) and that they were forced to spend additional sums to litigate, lobby, and educate their members (called “association injury). The courts found that they, too, had no standing. The same association claims of excess costs of lobbying, litigating, and education were raised by the Alliance for Hippocratic Medicine in the Mifepristone case and rejected, having not fulfilled all elements of the standing triad.

For comparison, consider the Red River Sugarbeet Growers Association et al. v. the USEPA case, where a group of agricultural associations damaged by the EPA’s ban on the pesticide chlorpyrifos sought to have it removed and narrowed on the groups that the EPA’s decision to ban the chemical entirely was overbroad, arbitrary, and capricious. The standing issue wasn’t even raised- as clearly, the decision harmed the individual members, and revocation of the ban, even in part, would have redressed the association members.

Judicial Redress

Because the redress (remedy) sought was prospective, rather than claims for damages typically sought in class action cases, and that alternative remedies were available, the US District Court for DC held that the judicial redress sought was unrelated to the harms claimed and that it was unlikely that future injuries to members would result.

In his separate concurring opinion in the Mifepristone case, Justice Thomas bemoans the lack of more law on the subject. , possibly thinking the class-action vehicle, in most cases, is a more appropriate approach. In any event, it seems the game isn’t yet over on the breadth of association powers. 


[1] In 1793, “the Supreme Court sent a letter to President George Washington denying his request for the Court’s opinion regarding certain legal issues pertaining to the nation’s relations with France. This letter set a critical precedent for the newly created Court, which the justices have never abandoned: the Court will only issue opinions in cases involving legal disputes between adversarial parties; it will not issue “advisory” opinions. 

“The Lines of Separation drawn by the Constitution between the three Departments of Government—their [sic] being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the United States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants”


[2] As if banning the drug to satisfy their moral conscience wouldn’t cause moral and physical harm to those who choose to use the drug – a harm they conveniently, and rather selfishly, ignore.



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