On Tuesday, the Supreme Court heard oral argument in FDA v. Alliance Hippocratic Medicine, the mifepristone case. Much of the argument focused on whether AHM had standing to challenge the FDA's actions. From my vantage point, it looks like the plaintiffs will lose. Indeed, the writing has been on the wall since the Court granted a stay of the Fifth Circuit's decision back in April 2023. The question isn't whether AHM will lose; the question is how. I would humbly submit that the Court could take this opportunity to clean up several aberrations in standing law.
First, the Court should claw back so called "diversion of resource" standing based on Haven's Realty. As this theory has been interpreted by some lower courts, an organization can claim Article III standing simply by claiming that a government policy forces the organization to divert resources. In other words, the organization would usually spend their resources on X, but because of some state action, the organization now spends their resources to respond to the state action. That injury seems entirely self-inflicted, and is at odds with decades of standing law. Yet some lower courts accepted this theory in legal challenges to Trump policies. I had hoped that the Supreme Court could address Havens Realty in Acheson, but that case fizzled out on mootness grounds.
During oral argument in AHM, several Justices addressed Havens Realty standing. Earlier in the argument, Justice Barrett said that AHM's injury "sound[s] in the Havens Realty associational standing." Barrett added that these are the sorts of "allegations we see by immigration advocacy groups." They claim a "diversion of resources" in the form of "increased expenses that result from the complications of having to address" the state action. Barrett asked Solicitor General Prleogar to distinguish "diversion of resources" from Havens Realty.
