Judge James Ho, a member of the panel, argued forcefully for his power to do that in a partially concurring opinion. “Scientists have contributed an enormous amount to improving our lives,” he wrote. “But scientists are human beings just like the rest of us. They’re not perfect. None of us are. We all make mistakes. And the FDA has made plenty.” He then cited examples of past misjudgments by the agency, leaning heavily on an erroneous drug approval in the 1940s and claiming that it bore some responsibility for the opioid crisis. In his telling, judicial intervention in the FDA drug-approval process is not a mistake, but a positive good.
Beyond that, Ho would have given the anti-abortion doctors a victory across the board. He wrote that the FDA’s drug approval for mifepristone could be reviewed because of subsequent changes, and that he would invalidate it because, in his view, pregnancy does not count as an “illness” under the portion of the statute cited by the FDA. (This might be a surprise to the countless women who have experienced difficult or dangerous pregnancies.) He would also have invalidated the mail-order changes in 2021 under the Comstock Act, a largely unenforced federal law that criminalizes the distribution of abortion drugs in the mail.
Most striking of all is Ho’s understanding of, well, legal standing. To bring a lawsuit, a plaintiff generally needs to show that they have an injury that a court can remedy. Without that, they have no justification for bringing the lawsuit at all. The panel allowed the anti-abortion doctors to proceed with their lawsuit on associational standing and conscience grounds. Ho did not disagree with that conclusion, but he put forth an even broader theory for why anti-abortion doctors could file these types of lawsuits: what he described as the “aesthetic injury” suffered by doctors who witness an abortion.