Supreme Court judgment in 2012 FDA v. Alliance for Hippocratic Medicine This case should be humiliating for the plaintiffs, their lawyers, and the lower court judges who signed off on this effort to ban commonly prescribed abortion drugs.
The decision was unanimous—even Justice Samuel Alito joined the majority opinion! – and it held that no federal court had jurisdiction to hear the case in the first place.
The lawsuit was an attempt to ban mifepristone, a drug used in more than half of all US abortions.
But when alliance While the decision is a victory against anti-abortion advocates’ efforts to ban mifepristone, it is only a temporary one. Justice Brett Kavanaugh’s opinion leaves open two ways that Republicans who oppose abortion could still ban the drug. And it also creates the possibility that the Supreme Court will have to hear the case again, despite their initial ruling that the federal judiciary should not have heard the case to begin with.
This case should not have seen the light of day
alliance This is essentially a case of judge-shopping, a practice that sometimes allows litigants to choose which judge hears their case. In that case, the plaintiffs — doctors who oppose abortion and the organizations that represent those doctors — chose Matthew Kasmaric, a longtime advocate for the Christian Right who was appointed to the federal bench by then-President Donald Trump — as their judge.
Plaintiffs were allowed to choose their own judge because Cacsmaric’s Texas-based court assigned him all cases filed in Amarillo, Texas. So all these plaintiffs had to do to get Kesmaric to hear their case was to file their case in his hometown.
Kacsmaryk’s opinion was, well, exactly what you’d expect from a judge determined to fight abortion regardless of what the law says. His 2023 decision overturned the FDA’s decision to approve the drug mifepristone in 2000, despite a six-year statute of limitations on such claims. He relied on discredited studies ever since They have been withdrawn by the publisher. And he relied on testimony from a “doctor” who Not actually a doctor.
His decision was then appealed to the United States Court of Appeals for the Fifth Circuit, a court dominated by mega-Republicans, which narrowed Casmaric’s decision but still effectively banned the drug. The decision by the Fifth Circuit reversed a unanimous Supreme Court decision on Thursday.
The court’s decision is too narrow
Kavanaugh alliance The opinion rests on a legal doctrine known as “standing.” In order to bring any type of federal lawsuit, the plaintiff in that case must show that they were injured in some way by the defendant. As Kavanaugh writes, “For a plaintiff to enter the doors of a federal courthouse and receive a judicial determination of what the governing law is, The plaintiff cannot be a mere passer-byBut instead there must be a ‘personal stake’ in the dispute.”
But these plaintiffs were nothing but spectators. They “do not prescribe or use mifepristone” and “the FDA does not want to prevent them from doing or doing anything.” Their only reason for filing this lawsuit seems to be that they don’t like abortion and the court wants to prevent other people from using a drug that these plaintiffs find objectionable.
It is not allowed. In Kavanaugh’s words, “A plaintiff wants to make a drug less available for others does not have standing to sue.”
To obtain this requirement, the plaintiffs’ lawyers developed what Kavanaugh dismissed as a number of convoluted causation theories to connect the FDA’s actions to the plaintiffs’ alleged injuries. But these convoluted theories do not actually show that the plaintiff doctor was injured.
One of their arguments, for example, is that if mifepristone is readily available, a patient may take mifepristone, then experience a complication that requires a doctor to complete the patient’s abortion, and one of the plaintiff doctors may have to do so. procedure though it violates the doctor’s conscience.
But, as Kavanaugh notes, “Federal conscience laws certainly protect doctors from performing abortions or providing other treatments that violate their conscience.” So this unlikely chain of events can only happen when a plaintiff doctor fails to assert their legal rights.
So the good news for abortion rights is that mifepristone is legal for now. The bad news is that Kavanaugh’s opinion offers two ways that anti-abortion advocates can still try to ban it.
A path flows from a short line near the end alliance Opinion: “[I]t is not clear that anyone else will be standing to challenge the FDA’s lax regulation of mifepristone. Last January, Casmaric ruled that three red states — Idaho, Missouri and Kansas — can join this case And press demands that mifepristone should be banned.
It’s not clear how these states are hurt by mifepristone being legalized. But Cacsmaric’s (and the Fifth Circuit’s) conduct in this case and others shows that he is willing to bend the law into pretzels to rule against abortion rights. It’s likely, in other words, that Cacsmarik will simply make up some reason why red states have standing to sue and then issue a new order trying to ban mifepristone.
So this same case could return to the Supreme Court in a year or two, forcing the justices to decide, at the very least, whether these red states have standing.
More ominously, Kavanaugh’s opinion also points to another way abortion opponents could try to pull mifepristone from the market: “Plaintiffs could Present their concerns and objections to the President and FDA in the regulatory process“
As long as Joe Biden or another Democrat controls presidential power, the administration is unlikely to bow to these concerns. But if Trump (or another Republican) takes over the White House in the future, the Republican-controlled FDA could try to revoke the 2000 approval of mifepristone.
so alliance It’s a victory for abortion rights and the rule of law, and an embarrassing defeat for Casmaric and his fellow anti-abortionists. But it’s also unlikely to be the last word in the mifepristone fight.
