Read the Court Decision Invalidating F.D.A. Approval of Mifepristone

Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 15 of 67 PageID 4437

risk’ that the harm will occur.”) (emphasis added); Clapper, 568 U.S. at 414 n.5; Massachusetts v. E.P.A., 549 U.S. 497, 526 n.23 (2007) (“Even a small probability of injury is sufficient … provided of course that the relief sought would, if granted, reduce the probability.”); Deanda v. Becerra, No. 2:20-CV-092-Z, 2022 WL 17572093, at *2 (N.D. Tex. Dec. 8, 2022) (collecting cases). ¹4

For similar reasons, Defendants’ reliance on City of Los Angeles v. Lyons also fails. 461 U.S. 95 (1983). There, the Supreme Court held Lyons did not have standing to seek injunctive relief because “[t]here was no finding that Lyons faced a real and immediate threat of again being illegally choked” by Los Angeles police. Id. at 110. The Lyons holding “is based on the obvious proposition that a prospective remedy will provide no relief for an injury that is, and likely will remain, entirely in the past.” Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992). “No such reluctance, however, is warranted here.” Hernandez v. Cremer, 913 F.2d 230, 234 (5th Cir. 1990). Considering FDA’s 2021 decision to permit “mail-in” chemical abortion, many women and girls will consume mifepristone without physician supervision. And in maternity-care “deserts,” women may not have ready access to emergency care. In sum, there are fewer safety restrictions for women and girls today than ever before. Plaintiffs have good reasons to believe their alleged injuries will continue in the future, and possibly with greater frequency than in the past.

14 Defendants’ reliance on Spokeo, Inc. v. Robins is also unavailing. 578 U.S. 330 (2016). Courts should indeed assess whether the alleged injury to the plaintiff has a “close relationship” to harm “traditionally” recognized as the basis for a lawsuit in American courts. See Trans Union, 141 S. Ct. at 2204. But “a plaintiff doesn’t need to demonstrate that the level of harm he has suffered would be actionable under a similar, common-law cause of action.” Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 822 (5th Cir. 2022). Rather, Plaintiffs only need to show the type of harm allegedly suffered “is similar in kind to a type of harm that the common law has recognized as actionable.” Id.; see also Campaign Legal Ctr. v. Scott, 49 F.4th 931, 940 (5th Cir. 2022) (Ho., J, concurring) (evidence of injury required by Trans Union is not burdensome). Harm resulting from unsafe drugs is similar to harm actionable under the common law.

15