Louisiana offers two theories of standing. Theory #1 goes like this: if it’s possible to obtain mifepristone by mail, then women in Louisiana will order mifepristone by mail from out-of-state providers, which inflicts what Louisiana refers to as a “sovereign injury” because abortion is illegal in Louisiana.

Louisiana’s claim on the merits—the thing that, according to Louisiana, the FDA did wrong—is that the FDA was insufficiently attentive to women’s safety when it jettisoned the in-person dispensing requirement. However, Louisiana does not actually want women to take the extra safety measure of picking up mifepristone from their providers. To the contrary, it wants women not to do this. It bans local hospitals from doing the very thing that, it contends, should be mandatory for safety purposes—in-person dispensing of mifepristone. Women could in principle drive to a state like Illinois to try to obtain mifepristone, but Louisiana is hoping that women will find this too burdensome and will instead carry the pregnancy to term.

Ironically, under the REMS statute, the FDA must periodically evaluate whether the elements of the REMS “assure safe use of the drug” and “are not unduly burdensome on patient access to the drug.” In a normal world, a plaintiff trying to force the FDA to impose a more stringent REMS requirement would be saying things like “the requirement will assure safe use of the drug and won’t be unduly burdensome.” But Louisiana is saying the exact opposite. It’s saying it doesn’t want “safe use of the drug” and is hoping it will be “unduly burdensome” for Louisiana women to drive to a different state to get the drug. Sure, there are lots of women in other states where abortion is legal who will be forced to take safety measures they don’t want or need, but from Louisiana’s perspective, that’s just collateral damage. In the Fifth Circuit, this argument wins.

Consider the situation from the perspective of a woman living in a state where abortion is legal. She wants to obtain mifepristone by mail or at the pharmacy, but, if the Fifth Circuit’s order goes into effect, she can’t. Instead, purportedly for purposes of protecting safety, she has to drive to a further-away building. But she doesn’t want this extra safety measure. Her doctor doesn’t recommend this extra safety measure. Her state—which, Dobbs claims, now gets to decide abortion policy—doesn’t support this extra safety measure. The FDA doesn’t think this extra safety measure is necessary. Yet she’s forced to take this extra safety measure, because Louisiana convinced the Fifth Circuit to mandate the safety measure nationwide so that Louisiana’s citizens also don’t take the safety measure.

Article III’s “case or controversy” requirement exists to guard against precisely this sort of vexatious litigation. In FDA v. Alliance for Hippocratic Medicine, a group of pro-life doctors brought a lawsuit seeking to ban all women in America from using mifepristone. Their theory of standing was that if mifepristone were banned, they wouldn’t face the risk of encountering women who had taken mifepristone in the emergency room. The Supreme Court rejected this theory. The Court explained that “FDA has not required the plaintiffs to do anything or to refrain from doing anything.” It observed that “the law has never permitted doctors to challenge the government’s loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors’ offices with follow-on injuries.” If the plaintiffs’ theory were correct, the Supreme Court explained, absurd consequences would follow: “Police officers,” for example, “could sue to challenge a government decision to legalize certain activities that are associated with increased crime.”

[...]

The standing requirement is not a technicality. It is fundamental to the separation of powers. Justice Scalia’s classic article, “The Doctrine of Standing as an Essential Element of the Separation of Powers”—where he bemoans “the increasingly frequent administrative law cases in which the plaintiff is complaining of an agency’s unlawful failure to impose a requirement or prohibition upon someone else”—expresses the point far better than I ever could. Compressing the point into a couple of sentences: judges are unelected officials with extraordinary power to overturn the will of the political branches. That power is modulated by the requirement that courts must resolve bona fide cases or controversies. Allowing ideologically motivated litigants to use the judiciary to ram through regulations desired by neither the regulator nor the regulated inverts that constitutional design, converting judicial review from a check on governmental power into a mechanism for manufacturing it.