Case: 23-10362 Document: 543-1 Page: 22 Date Filed: 08/16/2023
Fourth, such patients involve more risk than the average emergency-room patient, which exposes the Doctors to greater malpractice liability and increased insurance costs. See Dr. Barrows Declaration ¶ 23 (testifying that providing emergency treatment to women suffering complications because of taking mifepristone puts doctors in “riskier, emergent medical situations”); Dr. Jester Declaration ¶ 20 (“These situations are naturally higher risk for both the patient and for the physician providing care.”). The more mifepristone patients the Doctors treat, the higher their liability and greater their injury. See Dr. Barrows Declaration ¶¶ 21–24; Dr. Jester Declaration ¶¶ 20–21; Dr. Johnson Declaration ¶ 15. Having examined the factual basis for the Medical Organizations and Doctors’ claims, we now answer the question of whether they have associational standing to assert those claims.
2. Analysis
a. Imminent Injury
We conclude that the Medical Organizations and Doctors have made a “clear showing” of associational standing. Barber, 860 F.3d at 352. To begin, it is “fairly likely” that the Doctors—both those who testified and those who are members of the Medical Organizations but did not testify—will continue treating women who experience severe complications after taking mifepristone. Crawford, 1 F.4th at 376. FDA’s own data shows that a definite percentage of women who take mifepristone will require emergency-room care, be it a blood transfusion, a surgery to complete a failed abortion or ongoing pregnancy, or some other complication. The data further shows that millions of women take mifepristone. And the Medical Organizations testified that hundreds of their members are OB/Gyns and emergency-room doctors who care for women in these circumstances. The Medical Organizations and Doctors therefore face a “substantial risk” of future injury. Susan B. Anthony List, 573 U.S. at 158.
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