Case: 23-10362 Document: 543-1 Page: 23 Date Filed: 08/16/2023
That risk is supported by the fact that many Doctors have already been required to treat patients experiencing complications due to mifepristone. Lyons, 461 U.S. at 102. These are not merely “one-off” instances. Crawford, 1 F.4th at 376. On the contrary, FDA’s data and the Doctors’ testimony show that women will continue to present to the emergency room after taking mifepristone, requiring urgent treatment. That trend is not speculative—it is “predictable” and “consistent[].” Vidal, 63 F.4th at 17; In re Navy Chaplaincy, 697 F.3d at 1176. And it does not matter that the foundation of the Doctors’ standing rests, in part, on “choices made by independent actors.” Lujan, 504 U.S. at 562. That concern is alleviated where, as here, “third parties will likely act in predictable ways.” Dep’t of Com., 139 S. Ct. at 2566.
It is worth repeating that the Medical Organizations and Doctors are not required to show that it is “literally certain” that they will be injured. Clapper, 568 U.S. at 414 n.5. They need only show a “substantial risk” that injury will occur. Susan B. Anthony List, 573 U.S. at 158; see also United Farm Workers, 442 U.S. at 298 (“a realistic danger”); Kolender, 461 U.S. at 356 n.3 (“a credible threat”); Arcia, 772 F.3d at 1341 (“a realistic probability”). At this preliminary-injunction stage, they have carried their burden. All. for Hippocratic Med., 2023 WL 2913725, at *8.
FDA and Danco’s primary objection to the Medical Organizations and Doctors’ standing theory is that it is speculative and inconsistent with the Supreme Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488 (2009). We disagree. For one thing, testimony was offered from multiple doctors who have personally given emergency care to women suffering complications from mifepristone. Dr. Francis Declaration ¶¶ 12–13; Dr. Skop Declaration ¶¶ 17–18, 22; Dr. Jester ¶ 17. Given those prior instances, and given mifepristone’s continued availability, the Medical Organizations reason that these members are reasonably likely to be injured again. The record amply supports that claim.
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