Case: 23-10362 Document: 543-1 Page: 35 Date Filed: 08/16/2023
tional or third-party standing. See generally ACORN v. Fowler, 178 F.3d 350, 356–57 (5th Cir. 1999); see also All. for Hippocratic Med., 2023 WL 2913725, at *4 n.4. However, to the extent that it were necessary to consider third-party standing, it is likely that emergency-room doctors have a sufficiently “close relationship” with mifepristone patients. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); cf. June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2118–19 (2020), overruled on other grounds, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Indeed, the Court has “long permitted abortion providers to invoke the rights of their actual or potential patients.” June Med. Servs., 140 S. Ct. at 2118. We fail to see how this case is materially different.
FDA and Danco deny that third-party standing applies, saying that the Doctors have a “diametrically opposed” or “antagonistic” relationship with women experiencing severe complications as a result of taking mifepristone. FDA Br. at 33; Danco Br. at 32. That is so, Defendants contend, because the relief the Doctors seek would reimpose certain conditions of using mifepristone. That dubious proposition misunderstands the nature of the would-be representation. The Doctors pursue third-party standing to represent their patients’ interest in avoiding or limiting the dangerous side effects that sometimes occur when a woman takes mifepristone.
Although we do not fulsomely consider the issue here, we suspect that the Doctors—who have provided firsthand care to dozens of mifepristone patients experiencing acute physical and emotional distress in an emergency setting—have a relationship with their patients that is more than adequate to support third-party standing. In many respects, such a relationship may be closer than those previously recognized by the Supreme Court. June Med. Servs., 140 S. Ct. at 2118–19; Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292, 2314 (2016); Gonzales v. Carhart, 550 U.S. 124, 133 (2007).
35
