Mar27

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Reproductive Rights News, Part I: Mifepristone Looks Safe for Now

The Supreme Court conducted oral arguments yesterday in the case that would ban most uses of mifepristone. The SCOTUS-argument crystal ball is invariably murky, so you don't want to reach conclusions that are too firm, but the general consensus is that the Supremes will overrule the Fifth Circuit, likely due to the plaintiffs not having standing to sue.

Lawyer-reader A.R. in Los Angeles, CA listened to the oral arguments, and was kind enough to do a write-up for us:

Key Takeaway: It doesn't appear from the questions that a majority of the Supreme Court is prepared to upend decades of FDA regulatory drug approval processes, even if most of the justices oppose abortion.

As we suspected, the main question was standing, and a majority of the Justices grappled with whether the plaintiffs satisfied any of the elements of Article III standing. And while it's always risky to try to read the tea leaves, I'm going to go out on a limb and say that it could be 7-2 in favor of reversing the Fifth Circuit and dismissing the case for lack of standing. The only potential wild card for me was Chief Justice John Roberts—some of his questions indicated a willingness to expand standing to include a "chain of probability" leading to a cognizable injury. He also asked why the Court can't give these plaintiffs relief without affecting the entire FDA regulatory scheme.

There seemed to be three buckets of standing concerns, and some of the justices fell into more than one camp. As a reminder, standing consists of these elements: (1) cognizable, imminent injury (not general or speculative or attenuated); (2) caused by defendants; and (3) relief sought will redress the claimed harm.

Bucket 1: Injury is too speculative or attenuated. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson focused on the lack of any actual injury on the plaintiffs' part. And Justice Amy Coney Barrett agreed that the two doctors who alleged that they had to help women despite it being against their beliefs did not specifically allege any assistance that was due to the use of Mifeprex. They also addressed organizational standing and didn't agree that the group's claim of "diverted resources" was greater than that experienced by the general public. Roberts also was not convinced about organizational standing.

Bucket 2: The plaintiffs can already avoid any injury by use of the conscience protection statute. Justices Barrett and Brett Kavanaugh pointed out that these doctors don't really have a cognizable injury because a different federal statute allows them to opt out of such treatment if they have a conscientious objection. And the government conceded that such laws apply and that these doctors cannot be compelled to perform abortions or treat women who have had a medication abortion.

Bucket 3: The relief sought is too drastic for the claimed injury. Justices Neil Gorsuch and Jackson were particularly troubled that the remedy sought by these few doctors, who may or may not be called upon to treat women with complications from a medication abortion, was a national ban on the drug. Justice Gorsuch seemed to have an even broader agenda in that he wanted to use the standing issue to send a message about judges issuing nationwide injunctions. They seemed to be trying to craft a much narrower remedy, assuming the standing requirements are met.

There were the usual loaded questions from Samuel Alito and Clarence Thomas. An example from Alito was along the lines of, "So, if no one has standing, the FDA can do whatever it wants and there's nothing anyone can do?" Solicitor General Elizabeth Prelogar deftly handled such hyperbolic inquiries by calmly pointing out that if a previously-approved drug proves to be dangerous, the FDA can, and has, taken it off the market for safety reasons. She also reminded the Court that people sue drug companies all the time, alleging harm from their products—tort claims are alive and well and unaffected by this case. Thomas really wanted the parties to address the Comstock Act, but both the government and the attorneys for Danco Laboratories (which makes Mifeprex) said the issue was not raised in this case, and none of the other justices seemed to want to go down that road.

The justices spent virtually no time on the merits of the case. Justice Barrett asked about 2016 changes to increase the gestational age from 7 to 10 weeks coupled with the removal of the in-person requirement and the claim that the combination of those two changes has led to more errors in calculating patients' gestational age. The Solicitor General reminded the Justice that even before the changes to the in-person requirement, there was no requirement for an ultrasound. So, doctors were only asking questions to assess the appropriateness of a medication abortion, which they can easily do via video or telephone. Removing the in-person requirement did not make it any more likely that gestational age would be calculated incorrectly.

One interesting side note: all the lawyers arguing for the parties were women. That's probably not surprising given the subject matter, but it's still a rare occurrence at the Supreme Court.

If you would also like a layperson's opinion, we're happy to deliver. Here's reader R.M.S. in Lebanon, CT:

I listened to the Supreme Court oral arguments in FDA v. Alliance for Hippocratic Medicine while driving. I am not an attorney, but a blue-collar layperson, and I wanted to share my thoughts about this case from what I heard.

First, I don't think this case should ever have made it to the Supreme Court. The plaintiffs in the case are a group of anti-abortion-rights medical personnel who claimed they might be compelled to administer an abortion on an emergency basis if they treated a patient who was harmed by mifepristone. All of the justices except Samuel Alito sounded very skeptical of this argument. When they asked the plaintiffs' attorney for an example of this ever happening, she could not cite a single instance. Federal law already protects medical providers from performing abortions against their will. The plaintiffs need to establish they were harmed in some way by the FDA approval of mifepristone to establish standing. They want the court to rule based on speculative situations they believe may occur but haven't occurred. This is why I believe the Supreme Court will dismiss their claim based on a lack of standing and it should never have gotten this far in the legal process.

Secondly, I think this case represents a big shift in strategy from the anti-abortion-rights movement. They realize that fetal personhood laws are unpopular except in the reddest of red states. They were rejected even in red states like Kansas and Ohio since Roe v. Wade was overturned. Instead, they are borrowing a strategy from the anti-vaccination movement. Anti-vaxxers like to selectively cite data about vaccines in order to stir up fear and opposition to them. For example, if a vaccine injures 70,000 patients, they will cite the injuries to justify their opposition, but will ignore the other 120,000,000 patients who received the vaccine with no side effects. This is similar to what the plaintiff in this case argued about mifepristone. She claimed that she was trying to protect women from injuries caused by the medication, but she did not acknowledge all of the women who have taken it with no harm to their health. Most of the justices seemed skeptical about challenging the FDA's evaluation of the medication.

Going forward, I think we should expect the anti-abortion-rights movement to frame their activism as a way to protect women. Most of them seem to realize a push for a national fetal personhood law would be politically unpopular and backfire on them.

Thanks, A.R. and R.M.S.!

In short, it sure looks like this particular battle is over, but definitely not the war. A.R. later wrote in to add: "I'm guessing these groups will now scour the country to find a woman willing to say she was harmed by taking Mifeprex and we'll see a new case filed in short order. This campaign by these groups and their allies on the Court is by no means over." (Z)

Reproductive Rights News, Part II: A Big Win for Marilyn Lands in Alabama

Yesterday, we wrote about the special election for the open seat representing HD-10 in the Alabama state House. Recall that the district is swingy, and that the Democratic candidate, Marilyn Lands, lost election by 7 points back in 2022. This time, she ran a campaign that was all-in on reproductive freedom and, in particular, on access to IVF.

We proposed, in that item, that the election could give another data point speaking to the efficacy of reproductive freedom as cudgel for the Democrats to yield. That said, we were a little leery when we wrote that. As we have written countless times, special elections are wonky and can produce odd results (see: Brown, Senator Scott). Further, the seat was open because the Republican who had been occupying it (David Cole) turned out to be a crook. Such behavior often generates a backlash at the next election (see: "Santos, George"). So, if Lands had improved on her 2022 result by, say, 5 points, could we really draw any meaningful conclusions from that?

It turns out we need not have worried about trying to write our way out of that jam. Lands won the election... by a staggering 26 points. It was 63% of the vote for her, and 37% for her Republican opponent, Teddy Powell. And remember, this is a swingy district, won by Donald Trump by 2 points in 2020.

There is no dismissing a result like that, when a candidate sees a net swing of 34 points. Maybe Powell was not a great candidate, but he certainly wasn't 34 points worse than the crook he was trying to replace. Maybe there was anger about Cole's crookedness, but it wasn't 34 points worth of anger. Maybe the special election attracted a wonky electorate; if so, then it just tells us that protecting reproductive rights is something that gets people to the polls.

It is extremely unusual in politics for the data to be this clear, but with this particular issue, it keeps happening over and over: reproductive rights are a big winner for Democrats, even in red/reddish states and districts. (Z)

Trump News Roundup

There was an unbelievable amount of Donald Trump news yesterday. Most of it wasn't important enough to warrant its own item, but is still of interest for one reason or another, so we're just going to do a rundown in the style of an Allan Malamud or a Herb Caen:

And that's the latest. Undoubtedly there will be 12 more things by this time tomorrow. (Z)

Paxton Gets a Slap on the Wrist

It is fortunate that justice is blind in America, and that a well-heeled, highly connected white man will always be treated exactly the same as, say, a Black man living in poverty.

Oh, wait. It would seem we spoke too soon. Texas AG Ken Paxton (R), who recently survived an impeachment effort, has been dragging out a securities fraud indictment filed against him for the last 9 years. He has used every trick in the book to avoid facing the music, with his bag of tricks greatly expanded by virtue of his official position and his well-to-do friends.

He was scheduled to finally go on trial in 3 weeks but, as of yesterday, it appears he has permanently dodged this particular bullet. Prosecutors announced that they had reached a plea-deal agreement with Paxton, such that the three felony counts against him will be dismissed in exchange for his paying a $300,000 fine, doing 100 hours of community service and undergoing 15 hours of legal ethics education. Since Paxton most certainly has people who will cover that fine for him, his punishment is essentially 5 days' worth of his time. That's rather less than life in prison, which was the maximum penalty he faced if the matter had gone to trial.

Nobody seems to know exactly what happened here, which leaves us to guess. It's possible that Paxton got a sweetheart deal from friendly folks in the Houston DA's office. Or, it could be that people don't usually go to prison for first-time offenses, and so prosecutors were OK with a non-incarceration punishment. But if you made us bet, we would bet that with 9 years having elapsed, and potential witnesses having died or having had their memories fade, what would have been a slam-dunk prosecution became much more tenuous. If so, then Paxton's foot-dragging machinations paid off in spades. Undoubtedly, Donald Trump is taking notes. Probably in crayon, but still.

A judge still has to sign off on the deal, and sometimes that doesn't happen (see Biden, Hunter). And Paxton is still facing a federal investigation related to the same bad acts. But at the moment, it sure looks like he fought the law, and he won. (Z)

Ronna Romney McDaniel: A 1/5th Scaramucci

Well, that was fast. After just 2 days and a grand total of one appearance on NBC's various news properties, former RNC Chair Ronna Romney McDaniel was shown the door yesterday. Early in afternoon, as the news began to trickle out, she was threatening lawsuits. However, that talk quieted down by the early evening. We are guessing that means that NBC agreed to pay off her $300,000 contract. If so, her compensation for that one 16-minute Meet the Press appearance works out to a wage of $1.125 million/hour. Nice work, if you can get it.

There was much gnashing of teeth and rending of garments from commentators on the right (see here, here and here for examples). Mostly, these commentaries serve as a reminder that right-wing commentators either don't understand what censorship is and what the First Amendment does, or else they think their readers don't understand. We made our views on McDaniel's hiring pretty clear yesterday, but as a reminder, we see no useful purpose she could possibly have served. She has no fanbase, so she wasn't going to attract new viewers. And she's a liar and propagandist of the worst sort, so she wasn't going to provide insight that politics-followers could trust.

It's really quite remarkable that the higher-ups at NBC botched this so badly; this is what happens when you have non-journalists trying to manage a journalistic operation. (Or a company that makes large, state-of-the-art aircraft run by bean counters.) We spent some time yesterday trying to think of someone who would have been a worse hire from a journalistic integrity perspective, on either the left OR the right. We could not come up with many answers; maybe Reps. Marjorie Taylor Greene (R-GA) or Matt Gaetz (R-FL).

That is not to say that we think that hiring these ex-politicians and these ex-operatives is a GOOD idea; it's just that the hires are generally less bad than the hire of McDaniel was. This stupid "embrace debate" programming, where Scott Jennings or Rick Santorum comes in to "debate" with Van Jones or Donna Brazile, offers little in the way of value. It's just a bunch of talking points. You could hire us to wear a Scott Jennings mask or a Van Jones mask, and we could easily fill in, because everything they say is entirely predictable. It's also insulting, since the real purpose of hiring these people isn't to enlighten the audience, it's to perform "balance."

Put another way, we agree with TalkingPointsMemo's David Kurtz that this coverage model needs to go. He doesn't think it actually WILL go, nor do we, but dare to dream. (Z)

RFK Jr. Has a Running Mate

Apparently, Robert F. Kennedy Jr. really wanted NFL quarterback Aaron Rodgers as his running mate, but the donors put the kibosh on it. And so, the son of Bobby went in a very different direction. His pick, which has been rumored for a week or so, and which he made official yesterday, is Nicole Shanahan.

"Who is that?" you may ask. Well, speaking in terms of demographics, she's a woman, she's half-Asian, she's a generation younger than RFK Jr. (38), she's a Californian and she calls herself a "progressive." She devotes much of her time to environmental causes, and even more of her time to reading about the links between autism and vaccines (she is mother to an autistic child). Shanahan says she isn't necessarily anti-vaxx, she's just "asking questions." We would say she's a soft anti-vaxxer, which means she "balances" the hard anti-vaxx stance of Kennedy.

All of this said, the primary reason that Shanahan was chosen is that she is the ex-wife of Google co-founder Sergey Brin. This has two implications, both of them important to RFK Jr. First, it means she has money. It's not known how much she received in the divorce settlement, but it must have been a chunk of change, since Shanahan paid more than half of the cost of the $7 million Kennedy Super Bowl ad. Second, it means she has connections to the movers and shakers of Silicon Valley, home to many very rich anti-vaxxers.

In the end, the implication of this news is that RFK Jr. will have the means to get on the ballot in some larger number of states than would otherwise have been possible, since he was running low on funds. At the moment, the polls suggest that he's taking a few more votes out of Joe Biden's hide than out of Donald Trump's. Presumably, adding a liberal-in-some-ways minority woman to the ticket isn't going to reverse the trend. So, yesterday's announcement would appear to be bad news for Biden and the Democrats. Not BIG bad news, but small bad news, particularly since we also know that the more Democrats learn about RFK Jr.'s ideas, the less they like what they see.

It is not clear if Democrats want to attack Kennedy. There is the Streisand effect to worry about, after all. But an outside group could conceivably run ads "asking" what makes her qualified to be president of the United States if something unfortunate were to happen to another President Kennedy. This in turn could lead to the question of whether Kennedy has the judgement to pick the right people for cabinet and other positions. (Z)


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