To paraphrase the line from “Forrest Gump,” Supreme Court opinions are like “a box of chocolates; you never know what you are going to get.” For standing nerds, there was a gem in today’s opinion in FDA v. Alliance for Hippocratic Medicine, No. 23-25 (U.S. June 13, 2024).
The case was a challenge by anti-abortion doctors and medical associations to FDA actions approving and making the abortion drug mifepristone more available. The Court reversed the lower courts’ decisions setting aside the FDA actions, finding that plaintiffs had no standing to sue.
The doctors had no standing to sue because even though performing an abortion is a “conscience injury,” and, thus an injury in fact, the challenged regulation would not in fact require doctors to do abortions over objection. As to the other claimed injury — diversion of medical treatment away from other patients — the causal link between the FDA’s regulatory actions and those injuries was too speculative to establish standing.
So far, not all that surprising. What was interesting was the Court’s rejection of the medical associations’ “resource drain” standing theory based on the decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). The associations claimed that they suffered injury in fact due to the costs incurred in doing their own studies of mifepristone to educate their members and the resources they spend drafting citizen petitions to FDA and on advocacy and public education. All this, according to the associations, was to the detriment of other spending priorities.
The Court flatly rejected this notion of “injury in fact” in a unanimous opinion:
[A]n organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way. [Slip op. at 22.]
The Court noted that “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context. So too here.” Id. at 23.
The “resource drain” theory, which was severely limited (if not rejected) today, has been a favorite of animal rights and other organizations that challenge regulatory actions or actions of businesses related to the treatment of animals. A familiar scenario is for the the organization to argue that it has spent time and money exposing the animal mistreatment that results from either the regulatory action or the defendant’s action, that this diverts resources from the organization’s other activities and that this “drain” on the organization’s resources is an Article III injury in fact establishing standing to sue. See, e.g., People for the Ethical Treatment of Animals v. Tri-State Zoological Park, 843 Fed. App’x 493 (4th Cir. 2021); People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (D.C. Cir. 2015). Today’s Supreme Court decision likely closes the book on that theory.