Dem
51
GOP
49
Yesterday, the Supreme Court issued a 9-0 ruling in Food and Drug Administration et al. v. Alliance for Hippocratic Medicine et al., striking down the ban on mifepristone imposed by District Judge Matthew Kacsmaryk (and largely upheld by the Fifth Circuit Court of Appeals). Sounds like a victory for the pro-choice side of the abortion issue, doesn't it? Not so fast.
We're going to let lawyer-reader A.R. in Los Angeles have the first word:
First, a brief refresher about standing. Federal courts are courts of limited jurisdiction, so only certain types of cases brought by the appropriate parties can get into federal court. An appropriate party is (generally) one who has an injury-in-fact that was caused by the alleged harm, which can be remedied by the court.
Here, the Alliance for Hypocritical Medicine (oops, damn auto-correct) alleged they had standing to sue the FDA because at some point, somewhere, one of its doctors may be called upon to administer to a patient with complications from having taken mifepristone. The justices unanimously said, uh, bye Felicia! They held that the plaintiffs lacked standing to bring their claims.
Associate Justice Brett Kavanaugh wrote the opinion and, ironically, went on at some length about how federal courts' limited jurisdiction promotes democracy and that questions that aren't ripe for their review are best left to the political process. Indeed, courts are only to decide the cases on the specific facts before them, and not "opine on legal issues" not raised. Hmmm, I seem to recall that at oral argument in the Trump immunity case, Kavanaugh and many of his colleagues didn't want to hear about the facts of the case in front of them; instead, they wanted to discuss lofty, abstract principles because they were writing a "decision for the ages" and for "future" presidents. So when it suits them, their hands are tied because "democracy," but when the facts are inconvenient (as in the Trump case), they are unconcerned about "assur[ing] that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." I think I understand how this works now.
But back to our regularly scheduled programming...
The Hippos complained that the FDA's approval of mifepristone was improper. But they could not meet any of the required standing elements. None of the doctors had been injured because none had alleged that they had treated a woman with complications from terminating a pregnancy with mifepristone. Further, doctors enjoy a conscience objection, so even if such a case had presented itself, the doctors could not show they would have been required to treat that patient. The organization couldn't show standing because they also could not demonstrate they had been impacted financially or otherwise by others' use of mifepristone. Finally, the Court rejected the plaintiffs' argument that standing was appropriate because if they don't have standing, no one will.
Thankfully, the justices did not adopt Associate Justice Clarence Thomas' view that the Court should jettison associational standing altogether, which would have jeopardized non-profits groups' ability to use their resources to sue on their members' behalf. Environmental groups, civil liberties groups, women's rights organizations, even the NRA—all depend on this standing to challenge laws that infringe on their members' constitutional rights. This decision did not need to go that far to resolve the case before it, and the Court, in this instance, adhered to the boundaries and limits of Article III in its ruling.
Thanks, A.R.!
And now, let us add that yesterday's ruling did absolutely nothing to resolve the underlying issues this suit raised. First is this nonsense where one judge in one division can make decisions for the entire country. Second, and more importantly, is whether or not the FDA's approval of mifepristone can be reversed by the judicial branch. Since the case was dismissed on the basis of standing, it was not necessary to engage with these issues.
This being the case, why did SCOTUS take so long to reach a decision? Well, Kavanaugh's decision (and Thomas' concurrence) appear to be carefully crafted so as to indicate what lines of attack might be more feasible for anti-abortion activists. In particular, the justices seem to imply that a hospital compelled to care for someone who suffered from mifepristone complications might have standing. Similarly, Thomas proposes that a doctor who felt pressured to waive their conscience objection (say, they were the only doctor working the ER on a particular night) could also have standing. And so, the Alliance for Hippocratic Medicine and other such groups are already thinking about how they can take a second bite at the apple, with greater success on the second go-round.
Consequently, all SCOTUS has done is take a hot-button issue and kick it down the road a little bit. Given that this particular hot-button issue works to the detriment of Republicans in general, and Donald Trump in particular, some commenters have gone so far as to describe the decision as a "gift" to Trump. That could be so. In our experience, however, the voters who care about this particular issue tend to be better informed than the public as a whole. Just because mifepristone is no longer under imminent threat doesn't mean it's not still threatened. And, of course, there's all the other hard-right abortion stuff coming out of places like Texas and Louisiana and Alabama (see below for more). So while we pass along the observation that this decision could work to the benefit of any Republican who has to appeal to a purple (or blue) electorate, we are inclined to think that's not how it will work out. (Z)