[ad_1]
If the justices in the majority had doubts about the strength of the lawsuit brought by opponents of the abortion pill, they probably centered on whether the challengers could show that they would suffer concrete harm if the drug remained available. Lawyers call this requirement standing.
Standing is a neutral legal principle that applies to the right and left alike, Chief Justice John G. Roberts Jr. wrote in an influential 1993 law review article while he was a lawyer in private practice.
“It restricts the right of conservative public interest groups to challenge liberal agency action or inaction,” he wrote, “just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”
Walter Dellinger, a former acting U.S. solicitor general who died last year, once said a rigorous approach to standing was consistent with Chief Justice Roberts’s statement at his confirmation hearings that judges should aspire to be umpires, whose only job is to call balls and strikes.
“Before any judge begins calling balls and strikes,” Mr. Dellinger said, “he must first make sure the batter at the plate is an actual player and not just a fan who ran on the field.”
The plaintiffs’ theories of standing in the abortion pill case are untested and may be in tension with Supreme Court precedent.
Their main theory is that there is a statistical possibility that some of their members may at some point work in an emergency room and have to treat patients suffering from complications after taking the pill, subjecting the doctors to “enormous stress and pressure” and putting them to a choice between their consciences and their professional obligations.
A 2009 Supreme Court decision said that sort of statistical likelihood of harm, even assuming it is authentic, is not sufficient.
In that ruling, Summers v. Earth Island Institute, Justice Antonin Scalia, writing for the court’s conservative majority, said organizations did not have standing to sue based on the statistical likelihood that their members might suffer harm, rejecting the contrary position set out in a dissent signed by four liberal justices.
“The dissent proposes,” Justice Scalia wrote, “a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury.”
He added: “This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.”
[ad_2]
Source link