FFRF files two amicus briefs over legal standing
The Freedom From Religion Found-ation has filed two amicus (friend-of-the-court) briefs, one before the Supreme Court and the other before the 9th U.S. Circuit Court of Appeals.
In the case before the Supreme Court, FFRF jointly filed the brief with American Atheists, and contended that the litigants who are challenging medication abortion lack standing to sue.
In the other case in front of the 9th Circuit, FFRF says a church’s court challenge of a 2018 Washington law giving citizens access to abortion and contraceptive coverage also lacks legal standing.
Mifepristone case
Last August, the 5th U.S. Circuit Court of Appeals upheld a district court injunction restricting mifepristone, part of a two-drug protocol used for medication abortion. The appeals court ruling limited abortion medication to just seven weeks of gestation and also banned telemedicine and mail-order shipments for abortion pills. This decision was appealed both by Danco, the drug manufacturer, as well as the U.S. Food and Drug Administration in separate cases. The plaintiffs are anti-abortion physicians and anti-choice organizations that claim injury based on manufactured and hypothetical scenarios and are represented by the Christian nationalist outfit Alliance Defending Freedom.
The anti-abortion groups and physicians lack standing to challenge the FDA’s regulatory decisions in 2016 and 2021 concerning mifepristone, the amicus brief asserts.
The U.S. Constitution “requires a ‘proper party’ to bring suit, which ensures that federal courts resolve only real cases or controversies,” the brief states. “In this instance, anti-abortion advocates seek to use the courts to limit access to a safe and effective medication used for abortion.” The anti-abortion plaintiffs have sought to reverse-engineer a way to challenge the use of mifepristone, but those attempts fall well short of constitutional requirements.
First, the brief points out, the physicians have not demonstrated a “certainly impending” injury. Their religious or moral objections require a highly speculative chain of events and rely on hypothetical injuries. The other alleged injuries are just a proxy for what the physicians really care about: trying to ban the most popular form of abortion care because they have a so-called moral and religious objection to abortion. Under their standing theory, doctors who have a mere possibility of treating patients who may suffer from improbable complications from a drug may utilize the courts as a proxy for the doctor’s religious objections to the use of the drug. The sweeping breadth of this theory would permit suits for concocted and theoretical injuries.
“The Constitution does not permit plaintiffs to invent speculative injuries as a basis for a ‘case or controversy,’” says the brief. “The Constitution also does not permit plaintiffs to litigate claimed moral or religious injuries via proxy by way of other speculative claims.”
Second, the physicians’ standing theory would grant judicial review over any number of implausible and hypothetical injuries. Within the ambit of the FDA, doctors could wield religious or moral objections as a basis for standing if they might treat a patient someday who might be harmed by an FDA-regulated medication. This is not only contrary to the Constitution, but is untenable in a secular nation where science, not dogma, must guide the FDA’s regulatory decisions.
The FDA regulations in question do not require the physicians to do anything. The FDA has taken no regulatory action relating to these doctors that threatens their rights of conscience. And the physicians have not identified when their rights of conscience would be harmed.
Finally, FFRF and AA are concerned about manipulation by courts of their jurisdiction in order to favor preferred litigants. The Supreme Court has often turned away challenges that involve alleged violations of civil rights, the First Amendment’s Establishment Clause and environmental protection on the grounds that injuries are too generalized or too speculative, or that cases have been rendered moot by subsequent state action. Yet, the Supreme Court has increasingly failed to scrutinize these limits on its own jurisdiction in cases involving Christian litigants who assert constitutional violations. The court must decide such issues in a uniform and impartial manner.
“Not only is the judiciary’s impartiality at stake, but access to justice for all citizens is at stake,” the brief warns. “By design, the question of standing is a prerequisite for judicial intervention that closes the courthouse door to some litigants. Any manipulation by courts on the basis of standing becomes a means to issue favorable decisions on the merits to one side.”
The 5th Circuit’s handling of this case stands as an example of jurisdiction manipulation. While it found standing here on the basis of the doctors’ speculative future injuries, it has in the recent past declined to engage in the same treatment of those who are far more likely to suffer (such as in the case of students with disabilities challenging an order that prohibited school districts from requiring students to wear masks during the Covid-19 pandemic).
For all these reasons, FFRF and AA conclude, the Supreme Court should reverse the judgment of the 5th Circuit and the case should be dismissed.
FFRF Senior Litigation Counsel Patrick Elliott, FFRF Anne Nicol Gaylor Legal Fellow Sammi Lawrence and American Atheists lawyer Geoffrey Blackwell prepared the brief. Elliott is the counsel of record for the brief.
Abortion access case
A church’s court challenge of a 2018 Washington law giving citizens access to abortion and contraceptive coverage lacks legal standing, asserts FFRF’s amicus brief.
The Cedar Park Assembly of God, the plaintiff, contends that a state law requiring all health insurance companies to provide citizens access to abortion care coverage and contraceptives, even when their employer’s health insurance doesn’t cover those services for religious reasons, violates its First Amendment rights. Cedar Park, based in Bothell, claimed that the law, SB 6219, requires exempt religious organizations to “facilitate” access to abortion and contraceptives in violation of their religious beliefs. The state of Washington says that Cedar Park’s Free Exercise rights are not violated since Cedar Park falls under an exception to the law for religious organizations and is not required to purchase abortion or contraceptive coverage.
A district court ruled in favor of the state, holding that the law does not violate Cedar Park’s Free Exercise rights or its rights under the church autonomy doctrine. Cedar Park has appealed to the 9th U.S. Circuit Court of Appeals.
Cedar Park doesn’t have standing because it hasn’t shown that it has actually been injured or will be injured by the state law, maintains the FFRF friend-of-the-court brief. It is plain that the injuries Cedar Park initially alleged are, at best, attenuated hypotheticals lacking a concrete factual basis in reality; therefore, this case must be dismissed. At the summary judgment stage, it is the plaintiff’s duty to produce sufficient admissible evidence in the record to show that it has suffered a concrete injury that is actual or imminent. Cedar Park has not met this burden, FFRF convincingly asserts.
“On this second appeal, Cedar Park has whittled its claimed injury down to an allegation that SB 6219 violates Cedar Park’s Free Exercise and church autonomy rights because it (a) allows employees to access abortion care and contraceptives even when their employer-provided health insurance does not directly cover those services; and (b) may theoretically allow health carriers to charge employers a nominal fee increase for covering the costs of services not included in the employer’s plan,” states the brief.
The primary injury that Cedar Park claims is the possibility that one or more of its employees will access health care services of which Cedar Park disapproves. Cedar Park protests in its filings that its employee health insurance card might briefly be used in the process of an employee theoretically accessing that care. However, it has not set forth evidence that any of its employees (or their spouses or dependents) have accessed abortion care or contraceptive services; it has not set forth evidence that any of its employees intend to access these services; and it has not set forth evidence that any of its employees have attempted to access these services since SB 6219 went into effect nearly five years ago.
And Cedar Park has made it extremely unlikely that any of its employees will ever attempt to access such services. Each Cedar Park employee “signs a statement agreeing to ‘conduct their professional and personal lives in a manner’” that is consistent with Cedar Park’s religious beliefs and they “agree ‘to refrain from behavior that conflicts or appears inconsistent with evangelical Christian standards as determined in the sole and absolute discretion of Cedar Park.’”
Cedar Park’s second basis for its alleged injury is its assertion that health carriers may perhaps “pass along the cost” of covering abortion care and contraceptives to Cedar Park in the form of “increased premiums, administrative, or overhead expenses” or other costs. To support this assertion, Cedar Park cites only a 2002 Washington attorney general opinion that offered a nonbinding interpretation of the conscience clause.
“But Cedar Park’s worry that its health carrier might pass along the costs of covering these services is a hypothetical that relies on a highly attenuated chain of events, insufficient to confer an injury,” states FFRF’s brief. Without supporting evidence, Cedar Park’s conclusion that health carriers will pass along the cost of uncovered health services is unpersuasive and insufficient to establish an injury in fact.
Finally, Cedar Park cannot establish standing by showing that Washington will enforce SB 6219 against it because the law regulates health insurance companies, not employers. Cedar Park is free to negotiate for and purchase health insurance that doesn’t cover services that it objects to on religious grounds.
Since Cedar Park lacks standing, the 9th U.S. Circuit Court of Appeals should dismiss the appeal for lack of jurisdiction, FFRF’s brief concludes. Alternatively, the appeals court should affirm the district court’s ruling.
FFRF Legal Fellow Sammi Lawrence was the lead attorney in preparing the brief. FFRF Associate Counsel Sam Grover is the counsel of record for the brief.
