Access to mifepristone—a commonly used, safe, and effective abortion pill—is back in the hands of the Supreme Court. Last month, the Biden administration asked the justices to step in after a panel of judges on the famously reactionary U.S. Court of Appeals for the 5th Circuit further constrained availability of the medication. Previously, the court temporarily paused a 5th Circuit decision that would have taken mifepristone completely off the market while the justices consider appeals.
Much can—and has—been said about the merits of this case and the danger of judges substituting their personal views for the Food and Drug Administration’s scientific expertise. But its implications for abortion access are only part of what makes this case so frightening. Alliance for Hippocratic Medicine v. FDA also reflects a disturbing new pattern at the nation’s highest court: Right-wing lawyers and activists are increasingly constructing straw man plaintiffs to stand in for conservative ideological interests, and the Republican-appointed justices are happy to play along.
A bedrock principle of our legal system is that the federal judiciary adjudicates and redresses actual harms to real people. The courts are limited to settling disputes in which the plaintiffs can show “concrete and particularized injury.” This principle restrains the courts from wielding unchecked, ideological veto power over laws enacted by the other two branches.
Yet the mifepristone case is the latest in a series of recent examples of conservative jurists playing fast and loose with the words concrete and particularized.
Nominally, the plaintiff here is the Alliance for Hippocratic Medicine. The organization, which claims to represent doctors, was almost certainly invented for the sole purpose of filing this lawsuit. Its website launched in July 2022, a month after the Supreme Court overturned Roe v. Wade and a month before the group legally incorporated in Amarillo, Texas, where every federal case is now heard by a single hard-line conservative judge.
So that’s a no on the “real people” test. What about actual harms? Among other poor reasoning in the 5th Circuit decision, one judge wrote in a separate opinion, “Unborn babies are a source of profound joy for those who view them. … Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.” Thin stuff.
In reality, the driving force behind the mifepristone suit is not the AstroTurf Alliance for Hippocratic Medicine but the Alliance Defending Freedom, a self-described “Christian law firm” that raises more than $100 million a year to pursue right-wing cultural positions such as fetal personhood and same-sex marriage bans.
The ADF has been deeply involved in multiple egregious examples of the Supreme Court’s rewarding of artificial plaintiffs suffering invented harm. In a June ruling split along ideological lines, the six Republican-appointed justices allowed Colorado graphic designer Lorie Smith to refuse to create wedding websites for same-sex couples.
In 303 Creative LLC v. Elenis, Smith claimed that by compelling her to serve LGBTQ+ customers, Colorado’s anti-discrimination laws violated her free speech and prevented her from entering the wedding website industry. She also claimed to have received a request to build a same-sex wedding website on the very day she filed her federal lawsuit. These “facts” must have been too convenient to check, because the New Republic later revealed that Smith had falsified both claims. In reality, Smith had already entered the wedding website business (a fact she tried to conceal). Meanwhile, the man who allegedly requested a same-sex wedding website was already married (to a woman) and had never contacted her.
For the ADF, Smith’s suit was the culmination of a yearslong strategy betting on the court’s newfound sympathy for straw man plaintiffs.
A Washington Post investigation published last week found that the 303 Creative ruling built on a series of lower-court victories in which the ADF represented clients who—like Smith—were dubitably committed to actually offering wedding-related services.
Among the many damning facts the Post reports is that the “ADF also had a hand in formally establishing companies for some of its clients.” But it’s not just the ADF that’s capitalizing on this troubling trend.
The ADF also filed an amicus brief in the case of Joseph Kennedy, a high school football coach supported by a different conservative legal nonprofit, First Liberty Institute, who sued the school district that fired him for pressuring public school students to join him in prayer. Despite claiming to want his job back, Kennedy moved from Washington state to Florida during the suit. Still, in a blow against separation of church and state, he won the Supreme Court decision. Then, after coaching just one game, he promptly quit the very same job he’d sued to get back.
Meanwhile, in the case that blocked President Joe Biden’s student debt relief plan, the Supreme Court once again bought into a phony narrative about a straw man litigant. In that case, Republican-led states cited harm to an independent financial entity within their borders. The supposedly injured entity, MOHELA, however, pointedly declined to join the suit. In fact, its profits would have remained at record highs even after Biden’s plan was enacted.
In her dissent, Justice Elena Kagan cut to the heart of the matter, writing:
The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint—the Court forgets its proper role.
And that, fundamentally, is what this trend is about: a Supreme Court that has forgotten its proper role. Or, rather more likely, one that simply wants a different, more omnipotent role than the Constitution delineates.
The conservative justices own a supermajority on the court by way of constitutional hardball. But they find themselves increasingly out of step with an electorate that has cast more votes for the Democrat than the Republican in seven of the past eight presidential elections. The justices dislike the laws emanating from the other two branches and seek any opportunity to substitute their own policy preferences. Indeed, they have proclaimed themselves above the law, exempt from any checks or balances whatsoever.
As Justice Samuel Alito brazenly told the Wall Street Journal amid his recent ethics scandals, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”
Of course, Article 3 of the Constitution very clearly establishes the court’s authority “under such Regulations as the Congress shall make.” It’s the same article that limits the judiciary’s jurisdiction to “controversies”—real disputes between real people involving real harm. This is a part of the constitution Alito and the rest of the court’s conservatives increasingly do not respect.
The founders certainly could have endowed the Supreme Court with preemptive oversight of laws enacted by Congress and the president. They did not, and the court should stop pretending otherwise.