Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 14 of 67 PageID 4436
emergency situations.”); id. at 15 (“The FDA has caused Plaintiff doctors to face increased exposure to allegations of malpractice and potential liability, along with higher insurance costs.”). In fact, Plaintiffs’ declarations list specific events where Plaintiff physicians provided emergency care to women suffering from chemical abortion. See ECF Nos. 1-8 at 5–6, 1-9 at 4–9, 1-10 at 6–7, 1-11 at 5–6. And Defendants even concede the existence of adverse events related to chemical abortion drugs. See ECF No. 28 at 21. Consequently, Defendants misconstrue Plaintiffs’ pleadings and mischaracterize Plaintiffs’ evidence as “speculative.” It is not.
Past injuries thus distinguish this case from Clapper v. Amnesty Int’l USA, where the Supreme Court held a “threatened injury must be certainly impending to constitute injury in fact.” 568 U.S. 398, 410 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 157–58 (1990)). Were there no past injuries in this case, the alleged future harms are still less attenuated than those in Clapper. See id. (finding “a highly attenuated chain of” five separate possibilities needed to align for the alleged harm to occur); McCardell v. U.S. Dep’t of Hous. & Urb. Dev., 794 F.3d 510, 520 (5th Cir. 2015) (“[U]nlike in Clapper, where the alleged injury depended on a long and tenuous chain of contingent events, the chain-of-events framework in this case involves fewer steps and no unfounded assumptions.”) (internal marks omitted). See also ECF No. 1-31 at 10 (roughly eight percent of women who use abortion pills will require surgical abortion); ECF No. 1-14 at 23 (discussing a study in which 18.3 percent of women required surgical intervention after chemical abortion). And as post-Whitmore cases have demonstrated, the “certainly impending” standard for an “imminent” injury is not as demanding as it sounds. See TransUnion, 141 S. Ct. at 2197 (material risk of future harm can suffice “so long as the risk of harm is sufficiently imminent and substantial”); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (“An allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial
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