UPDATE: Some people have expressed confusion in the comments as to what this diary is about. My apologies, I wrote it off the cuff while I was waiting on some work-related emails. So, here’s some context, though it’s going to be long, as this is a highly complicated case. Keep in mind, I’m writing this off memory — it’s 4AM here — and my IANAL understanding of the case, even though I’m a serious SCOTUS wonk.
Today (03/26), the Supreme Court heard oral arguments in a case decided by Kaczmarek out of the 5th Circuit in Texas. I don’t recall the name of the original suit. Most people just refer to it as the “Mifepristone ruling”. Some groups of doctors — plus some individual doctors — brought suit objecting to the FDA’s reclassification of Mifepristone as safe. This had to be brought in a specific part of Texas so as to fall within the special sub-district that only contains Kaczmarek, who is a religious zealot and conservative judicial activist.
Kaczmarek found four things (yes, I like lists):
- The FDA had inappropriately classified Mifepristone as safe. There was a bunch of cherry-picking in the studies and examples used to justify this.
- When the FDA reclassified Mifepristone, they did not give opponents enough time or sufficient opportunities to object, nor did they give sufficient weight to the arguments against reclassification.
- That the FDA did not have the authority to reclassify Mifepristone, basically under the idea that Congress cannot delegate this sort of rule-making to independent federal agencies. This is the rejection of the Chevron Deference principle.
- IIRC, Kaczmarek also ruled that Mifepristone can’t be sent through the mail, based on an old, largely ignored law that says you can’t send objectionable material through the mail.
There were a number of problems with the ruling, the foremost being the issue of standing, which is the principle that a claimant must show some harm in order to bring suit. Kaczmarek allowed standing based on:
- Appellants’ claim that women who had taken Mifepristone prescribed to them via telemedicine and were experiencing complications would “overwhelm hospital resources”. Appellants were never able to point to a circumstance where this had occurred.
- Appellants’ claim that doctors would be forced to perform abortions when there were complications arising from a tele-prescribed medical abortion and a D&C was needed to save the mother. This came up in oral argument and the justices expressed skepticism over the idea that there aren’t already sufficient protections in place for doctors who object to performing abortions.
- Appellants’ claim that doctors would effectively have a sad because they became doctors to care for children and increased abortions would deprive them of that. Given that appellants are all male, I found this the most egregious of the standings claims.
The 5th Circuit Court of Appeals held that Mifepristone was still safe, but that the two reclassifications were inappropriate, meaning the time frame of use, delivery through mail and the telehealth prescription were invalid. SCOTUS took up the case on expedited appeal and issued a stay.
The questions from the justices today were not favorable to appellants. While the issue of FDA authority to reclassify did come up, it was almost entirely in the context of “gotchas”, which I took to mean the justices were none too happy with this portion of the decision — with the exception of Alito, of course. I don’t think there were any “Is Mifepristone genuinely unsafe?” queries, which bodes very well. There were also a lot of “Have you really considered the practical ramifications of ruling in favor of appellants?” questions, which I also feel to be a good sign.
Based on what I heard today and what I read on SCOTUSBlog, I believe the ruling will be 8-1:
- Only Alito showed any real interest in upholding the 5th’s decision.
- Thomas actually participated a fair bit — and his questions were not friendly to the challengers.
- Robert’s recent work with regard to “judge shopping” are in direct response to this ruling.
- A certain amount of realpolitik is almost certainly at play here: the justices are aware of the national response to Dobbs. A second ruling severely restricting reproductive rights could easily result in Republicans not gaining the White House for a generation or more, especially if pro-choice enthusiasm tilts the House and Senate — as it is already expected to do. Roberts is more than aware of how angry Biden is with the lack of ethics standards on the high court. Should Democrats gain the trifecta and the rightmost Democratic Senators choose to end the filibuster, Roberts’ legacy is toast.
- I know that people around here are not fond of the Colorado Ballot ruling, but I think it was correctly decided. One of the main reasons behind that ruling was that it was an invitation to chaos. While they might split the baby and decide the FDA broke the law when reclassifying Mifepristone — the Chevron Deference is almost certainly already dead — they can’t allow this version of “standing” to become the norm. They just can’t.
- I’m not even sure SCOTUS would have taken this case had Kaczmarek not twisted things up so badly. Almost all of the questions were about standing, injury or relief.
- The decision will probably be written by Jackson, or maybe Kagan. It’s less likely to my mind, but Roberts could be angry enough — or see it as a meaningful moment in his legacy — to deliver the decision.