Case: 23-10362 Document: 543-1 Page: 67 Date Filed: 08/16/2023
44 N.W. 967, 967–68, 976 (Wis. 1890) (writ of mandamus requested by public school students who raised conscience-based objection to curriculum).
And even where parties were not ultimately granted relief, courts entertained their suits alleging injuries to conscience and reached the merits of their claims. See, e.g., Donahoe v. Richards, 38 Me. 379, 413 (1854) (public school student raised conscience-based objection to curriculum); Innis v. Bolton, 17 P. 264, 269 (Idaho 1888) (plaintiff brought conscience-based objection to anti-polygamy oath required for voting).
Here, Plaintiffs have alleged conscience injuries analogous to those historically recognized at law and in equity. The FDA’s approval of mifepristone creates a substantial risk that Plaintiffs will be forced to participate in the abortion process. See, e.g., Dr. Francis Declaration ¶ 14 (“[M]ore physicians with ethical and medical objections to abortion will be forced to participate in completing unfinished elective chemical abortions, just as my partner was.”); Dr. Skop Declaration ¶ 34 (“The FDA’s expansion of chemical abortion … harms my conscience rights because it could force me to have to surgically finish an incomplete elective chemical abortion. I object to abortion because it ends a human life.”).
The Supreme Court has recognized that intangible interests in free speech and free exercise are sufficiently concrete for Article III standing. See Spokeo, 578 U.S. at 340. So it’s not surprising that both the FDA and intervenor Danco agree that conscience injuries can satisfy Article III. I agree with the panel majority that Plaintiffs have established Article III standing based on injury to conscience.
B.
In addition to the injuries analyzed by the majority, Plaintiffs have demonstrated another basis for Article III standing: the aesthetic injury they experience in the course of their work. See, e.g., Sierra Club v. Morton, 405
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