Yesterday, on remand from the Supreme Court, the U.S. Court of Appeals for the Fifth Circuit remanded Alliance for Hippocratic Medicine v. FDA (the mifepristone case) to the district court. As readers likely recall, a unanimous Supreme Court concluded that AHM lacked standing to sue the FDA for loosening the rules governing mifepristone. Indeed, it was not a particularly close call.
As Josh Blackman notes in a post below, Judge James Ho wrote a separate concurrence defending the panel's initial decision as a faithful application of applicable Supreme Court precedent that relied upon the federal government's prior representations about whether federal conscience laws protect doctors from having to perform abortions where doing so would violate their consciences. I accept that the Solicitor General offered the Court a more robust reading of federal conscience protections than may have been provided in other cases, and that this argument provided the Court with a basis for concluding that the plaintiffs lacked standing, but this concession by the SG was not necessary to resolve the case.
I reject Judge Ho's claim that the Fifth Circuit (and district court) "applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit." For reasons I explained in multiple posts (see listing below), even if one assumes that federal laws would not have protected members of AHM from having to perform abortions in emergency settings, AHM still failed to satisfy the requirements of Article III standing under existing doctrine.
