A unanimous ruling by the Supreme Court of the United States, preserving a federal agency’s relaxed regulations of an abortion-causing drug, is not what contemporary Court-related coverage and commentary would lead one to expect. Although, in fact, consensus is the order of the day at the Court, breathless reports of split decisions, bitter dissents, and partisan divides—especially in June—tend to generate more attention and, unfortunately, distort the public perception of the justices and their work. So when the Court ruled unanimously on a case touching on the hottest of all hot-button issues, some outlets characterized it as a “dodge” or based on a “technicality.” 

In a case called Food and Drug Administration v. Alliance for Hippocratic Medicine, the justices reviewed a lower-court ruling that the FDA probably acted unlawfully when, in 2016 and 2021, it lifted certain restrictions on the distribution, prescription, and use of the abortion drug mifepristone (also known as RU 486). The case and the underlying claims of illegality are complicated but, in the Supreme Court, the threshold question was fairly straightforward: Did the doctors and associations who challenged the FDA’s policy changes have “standing” to do so in federal court? As Justice Brett Kavanaugh wrote, the challengers are “pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others.” But, are those objections enough to invoke what our Constitution calls “the judicial power of the United States”?

The law of “standing” in American constitutional law is complex and particular applications of that law are contested. Still, it is well established, as Justice Kavanaugh reminded readers, that a party seeking to sue in a federal court “cannot be a mere bystander, but instead must have a ‘personal stake’ in the dispute.” As one federal judge put it, nearly 30 years ago, “A federal case is a limited affair, and not everyone with an opinion is invited to attend.” Americans are famously eager to “make a federal case” out of disagreements but, as the late Justice Antonin Scalia once observed, the Constitution demands that all would-be plaintiffs answer what Justice Kavanaugh called “a basic question”: “What’s it to you?”

All nine justices—including the five who voted two years ago to reject Roe v. Wade and Planned Parenthood v. Casey as “grievously wrong” and to permit reasonable regulation of abortion—concluded that, notwithstanding their sincere pro-life commitments, the plaintiffs lacked standing to challenge the legality of the FDA’s actions. To be clear, nothing in the Court’s decision supports those actions on the merits. The ruling was about the challengers—and not their challenges.

To establish standing, a party has to establish, among other things, an “injury in fact” that was caused by the other side’s conduct. As Justice Kavanaugh explained, this requirement is not hard to satisfy when the party bringing the challenge is also a party being regulated. Things are trickier, though, when someone objects to the government’s regulation of (or failure to regulate) someone else. In this case, as the Court saw it, the pro-life plaintiffs “do not prescribe or use mifepristone” and the FDA “has not required the plaintiffs to do anything or to refrain from doing anything.” They are not burdened; rather, they are “bystanders.” Their objections are serious and their legal arguments might well be compelling, but they must be presented—in a federal court, anyway—by others.

The challengers had pressed three arguments connecting the FDA’s rule changes to their own injuries-in-fact. The Court considered, but rejected, all three. In the justices’ view, it is not enough that the relaxed regulations could result in complications for pregnant women and, in turn, emergency abortions that would violate the pro-life doctors’ consciences, because the doctors could not establish that they would be required to perform or participate in such abortions. After all, “federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences.” (To the regret of some commentators, the government had conceded as much, notwithstanding ongoing efforts by activists and the current administration to weaken conscience protections.)

The pro-life doctors also attempted to establish their standing by insisting that they could suffer monetary and other costs—diversions of time to treat women harmed by mifepristone, increased liability risk, higher insurance payments, etc.—but the Court concluded that the necessary causal link between such results and the FDA’s moves were “too speculative” and “attenuated.” And, finally, the Court was unmoved by the argument that the medical-association plaintiffs, as organizations, had acquired standing due to the resources they had dedicated to studying the effects of the FDA’s policies and of abortion drugs and to advocating against them.

As is generally the case when a federal court resolves a closely watched lawsuit, about a hot-button topic, on standing grounds, some observers have characterized and criticized the Court’s determination as a dodge or a punt, or as resting on a mere detail or technicality. Some progressive observers and abortion-rights supporters also expressed regret and alarm that the ruling had deprived political campaigns and operatives of what would have been, for them, a politically useful headline, and that it might complicate the regrettable but ongoing efforts to undermine the Court’s reputation and to cast the justices as rogue activists.

And, to be sure, there are reasons to regret the case’s result. Putting aside, for the moment, that drug-induced abortions, like surgical abortions, cause the deaths of unborn children, the litigation over the FDA’s rule-loosening highlighted troubling facts about mifepristone-related harms and dangers to women’s health. What’s more, federal drug policy is now being used to circumvent and override legitimate limits on abortion that have been adopted through the democratic process after Dobbs.

And yet, it would be a mistake for those who appreciate and value our constitutional experiment to object to the Court’s enforcement of the standing rule. That rule is firmly rooted in the basic structure of our Constitution; when observed, it keeps judges in their prescribed lane and enhances public accountability in lawmaking. As, one hopes, we all learned in a civics or history class, two essential features of our democracy—that is, the democracy that is “constituted” by our foundational political act—are the preservation of the states as functioning political communities and the distinctions among the national government’s powers. The standing requirement serves both.

We should remember that the primary way our Constitution protects individual rights and democratic self-government is not by listing particular rights—as important as those rights are—but by enumerating, dividing, allocating, checking, and limiting national power. Article III of the Constitution gives “the judicial power” of the national government to the federal courts, but it carefully and deliberately limits the exercise of that power to specific contexts, namely, to a limited set of “cases” and “controversies.” When federal law is made, it is made in accord with the deliberate, even if not entirely efficient, process set out in Article I, a process in which the House, the Senate, and the President are involved, as are the several states (through the Senate’s structure) and We the People.

It is possible to imagine a different approach, one that invites and empowers judges to opine on the merits and morality of policies, unburdened by the discipline of the adversarial process. Indeed, some jurisdictions take such an approach. Our constitution does not; our federal courts are not authorized to wrestle with moot-court questions and classroom hypotheticals, no matter how profound and pressing their subject matter may be. As the late Chief Justice William Rehnquist once wrote, “th[e] constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties.” That division is not a technicality, and observing it is not a dodge.