The United States Supreme Court’s recent decision in Food and Drug Administration v. Alliance for Hippocratic Medicine (Alliance), which serves, for now, to keep mifepristone widely available in the United States, does not necessarily foreclose another challenge to the FDA’s actions. Although the challengers in Alliance, several individual doctors opposed to abortion on religious or moral grounds along with medical groups whose members are opposed to abortion, were ultimately unsuccessful in their efforts to get both the FDA’s initial approval of the drug in 2000 and its expansion of access to the drug in 2016 and 2021 rescinded, the unanimous decision by the United States Supreme Court decided the matter on the narrow issue of standing, relying on well settled principles of jurisprudence.

In fact, Justice Kavanaugh began his 25-page opinion with a quote from the late Justice Antonin Scalia summarizing the core of the constitutional doctrine of standing. As Scalia wrote, a plaintiff must “first answer a basic question: What’s it to you?” Moreover, Kavanaugh continued, a plaintiff needs to show that the defendant caused the injury that she is complaining about. Kavanaugh then rejected each of the “complicated causation theories” that the challengers relied upon to connect FDA’s actions to the injuries that they were asserting.