The Justice Department, for its part, rejected AHM’s claims that it had any reasonable grounds for standing in this case. “To describe those theories is to refute them,” the government said in its petition for review, quoting from major Supreme Court precedents on how standing is supposed to work. “This Court has repeatedly rejected theories of standing that rest on a ‘speculative chain of possibilities,’ especially where, as here, those possibilities depend on ‘unfettered choices made by independent actors.’”
But the Supreme Court’s own approach to standing and injury is muddled at best these days. That seems to be especially true when the issue that the court wants to hear is ideologically or politically charged. In West Virginia v. Environmental Protection Agency, the court found substance in a thin-air argument and knee-capped the EPA’s ability to regulate carbon emissions in power plants by ruling against Obama-era regulations that had never gone into effect, thereby injuring no one. And in last term’s decision in Missouri v. Biden, the justices embraced a dubious theory of standing by a group of Republican-led states to block the Biden administration’s efforts to forgive billions of dollars in student-debt relief, which some of the justices seemed to personally oppose as a matter of policy during oral arguments.
Will the court do the same in the abortion context? In its petition for review in the AHM case, the government also told the Supreme Court that the judiciary had should not second-guess that decision-making process. It noted that no court had ever countermanded a FDA approval decision for a specific drug, and that welcoming such an attempt could invite chaos into the highly technical regulatory process.