Not Quite Midnight at the Supreme Court

I was happily knitting away on my flight home from New York this evening, certain that the Supreme Court would go down to the wire on the Mifepristone case. The deadline Justice Alito had imposed for the Court to reach a decision was 11:59 p.m. Friday night.

I figured that I’d set my alarm for midnight to see how the Court would rule on the government’s request to stay the Fifth Circuit’s order. That order, you’ll recall, did not side with Texas federal judge Matthew Kacsmaryk’s decision to overrule the FDA’s approval of Mifepristone, a drug proven safe and effective for abortions and miscarriage treatment for over 20 years. But it would have permitted the remainder of the restrictions on Mifepristone that Kacsmaryk ordered to remain in place while the litigation proceeded. That includes requiring the drug be obtained in person and not through the mail, necessitating multiple doctor’s office visits and in-office consumption of the medication, and restricting use to prior to the seventh week of pregnancy—while the litigation proceeded.

When the Supreme Court ruled, they stayed all of it. They preserved the status quo, so Mifepristone will remain available up to 10 weeks, and can be obtained via the mail and used at home while the courts are reviewing the case. But that’s a temporary reprieve.

The stay will last while the case is on appeal to the Fifth Circuit. Presumably the party that loses in that court will appeal to the Supreme Court. They are not required to hear an appeal in a civil case like this. If the Court were to refuse to hear it (“certiorari denied”), then the stay would end and the Fifth Circuit’s order would go into effect. If the Supreme Court agrees to hear the appeal (“cert granted”), the stay will continue until the Court enters final judgment. Because the case involves important issues, it’s very likely the Court will take the case.

The decision tonight was not unanimous. Two Justices, Thomas and Alito, did not vote in favor of staying the order. It’s possible there could have been additional dissents from Justices who chose not to reveal their vote—it only takes five justices to act here. Justice Alito was the only Justice who wrote to explain his decision.

Alito rehashed the debate over the use of what has become known as the Court’s “shadow docket”—a docket used for resolving emergency requests. Interestingly, he seemed to take Justice Barrett to task, associating her views with those of progressive justices like Elena Kagan who have objected to the Court’s use of the docket to make decisions without explaining its reasoning (this makes it understandably difficult for lower courts to understand and apply the Court’s logic). Alito notes that Barrett in a 2021 concurrence with a denial of injunctive relief wrote that the Court should not act “on a short fuse without benefit of full briefing and oral argument” in a case that is “first to address the questions presented.” He says that while he agreed with those rulings, if the justices believed that then, they should believe it now. He does not, however, explain why, if he did not believe it back then, it’s okay for him to believe it now. Apparently what’s good for the goose is unnecessary for the gander.

Injunctions present complicated questions, and courts typically, but not always, try to preserve the status quo and protect parties from being harmed or prejudiced while litigation is pending. For instance, in Whole Woman’s Health v. Jackson, one of the cases Justice Alito offered up, Justice Kagan was objecting to the Court’s refusal to keep Texas’s heartbeat law from going into effect while litigation was underway. And that is what the Court ended up doing in this case—preventing any change in the approval status or regulations surrounding Mifepristone’s use while the case is pending. So Justice Alito’s arguments have a tinge of sour grapes, not legal principle.

He also makes an argument, that “In addition, because the applicants’ Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek—from either the Court of Appeals or this Court—in the near future if their arguments on the merits are persuasive.” The median time between filing a notice of appeal and getting a decision in a Fifth Circuit case that the court hears oral argument in was 13.3 months as of 2021. So if you’re pregnant now, if you have a miscarriage and are trying to avoid sepsis now, you can suffer happily according to Justice Alito, knowing that months down the road when the Fifth Circuit rules, women will have a small chance (it is the Fifth Circuit, after all, no friend to a woman’s right to an abortion) of reclaiming some of their bodily autonomy, temporarily. Isn’t Justice Alito magnanimous to women?

This first part of Justice Alito’s dissent from the injunction is reasoned, as so much of this Court’s abortion jurisprudence has been, in a manner designed to reach a desired result without any principled effort at consistency. In fact, in a similar situation where a judge ordered a change in how the FDA handled dispensing Mifepristone during the pandemic, Alito expressed outrage that a judge would gainsay the FDA. A judge in Maryland lifted the requirement that a patient travel to a doctor’s office to receive Mifepristone, because of safety concerns due to Covid. The Trump administration appealed, and the Court declined to reverse the judge’s order immediately, drawing strong dissents from Justices Thomas and Alito. At the time, the FDA required Mifepristone to be picked up at a doctor’s office although it could be used elsewhere. Alito wrote that “non-enforcement of the requirement risks irreparable harm” and criticized the judge for taking it “upon himself to overrule the FDA on a question of drug safety.” He also wrote that the Judge shouldn’t have engaged in “second-guessing of officials with public health responsibilities.” Apparently, the rules require only that abortion be made less available, not that Justice Alito act with consistency about the principles, regardless of the outcome that produces.

But the absence of consistency is the least of Alito’s shortcomings tonight. He concluded his dissent by writing, “The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.” The government hasn’t “dispelled doubts” it wouldn’t follow a court’s decision? Irony of ironies in the post-January 6 era, Alito is accusing the Biden administration of lawlessness. He says that under Biden, the FDA would refuse to follow a lawful court order. That’s preposterous.

The FDA, like many agencies, has considerable discretion over how it carries out its duties. But it does not have the ability to disregard a binding order from a court, especially not the Supreme Court. There is no basis for believing that this President, institutionalist that he is, would even entertain such a thought, let alone permit it.

Alito is likely referring to remarks made by Health and Human Services Secretary Xavier Becerra earlier this month. Becerra said that with Mifepristone, all options were on the table. “We want the courts to overturn this reckless decision,” he said, referring to Judge Kacsmaryk’s ruling. He noted he would do anything he could to ensure access to Mifepristone and prevent a court from inappropriately overruling a decison made by the FDA. But, as his press secretary subsequently confirmed, they would defend access to Mifepristone “through the legal process,” and while they were committed to that and believed the law was on their side, “it would also set a dangerous precedent for the Administration to disregard a binding decision.” Justice Alito’s assertion was unwarranted and completely unbefitting a Supreme Court justice. The Court is supposed to resolve issues using the rule of law, not fan political flames.

Read the Supreme Court’s full order here.

A quick reminder: This isn’t a final decison on the merits of the case. It’s a decision about whether the status quo, where Mifepristone is approved and readily available, remains in place while the parties in Alliance for Hippocratic Medicine v. FDA litigate the case. That could take years as the case works its way through the court of appeals and the Supreme Court. If SCOTUS had left the Fifth Circuit’s injunction in place, it would have severely curtailed pregnant people’s access to the drug. Tonight’s decision keeps the current rules in place. That’s important beyond this case alone, because with abortion banned or limited in many parts of the country after Dobbs, ending access to Mifepristone, which is used for over 50% of procedures, has become the next frontier for those intent on putting a national ban on abortion in place. There will likely be additional efforts to restrict access to it and to its companion drug Misoprostol.

Source: CNN

Meanwhile, additional evidence of Judge Kacsmaryk’s anti-abortion bias (there was already plenty) and an improper effort to conceal it has surfaced. In anticipation of his judicial confirmation process in 2019, he requested that his name be removed, pre-publication, from a law journal article he had authored, replacing it with some colleagues from the religious conservative legal group he was working for. The article was critical of legal protections for abortion and transgender people. All federal judicial nominees have to complete a document called a Senate Judicial Questionnaire. The completed application packet is submitted under oath before a nomination can advance. Among other things, it requires nominees to list everything they have published. Kacsmaryk failed to disclose the article and also failed to disclose interviews he gave on Christian talk radio that included his views on abortion and other issues, information the questionnaire calls for. You can read Judge Kacsmaryk’s SJQ in full here.

When Kacsmaryk’s failures to disclose came to light, Senator Lisa Murkowski (R-AK) didn’t mince words. “You want to talk about the ultimate bait and switch? I feel like I got duped. I feel like I voted for somebody based on what had been presented to me. And you do this? That is totally, totally wrong.” Kacsmaryk also redacted the source of between $5 million and $25 million in common stock he holds on his 2020 and 2021 disclosure reports. Redactions aren’t permitted unless disclosure would “endanger” a judge or a family member. The Judge appears to be a Publix heir, but it’s unclear what the stock he’s concealing is.

Whether the judicial conference of the United States will take up Senator Murkowski’s concerns or whether it’s just for show isn’t entirely clear, but there seems to be far too little outrage over clearly unethical behavior by the judge. We’re supposed to be able to have confidence in our courts, and this is a bitter pill, alongside the controversy over Justice Thomas’s conduct, which has resulted in no repercussions for him to date. Zero. We live in a time of so much institutional dysfunction and so little effort to correct it. The Chief Justice would do well to remember that unless he imposes some standards and ensures that judges, like the rest of us, must tell the truth when we take an oath and testify before Congress, public confidence in the courts may disappear altogether. That would have dangerous consequences.

We’re in this together,

Joyce

p.s. Enormous thanks to those of you who, through your monthly and yearly subscriptions, are providing financial support for the work I do. It means a lot to me. If you’re not already a paid subscriber and you’re enjoying Civil Discourse, I hope you’ll consider it. But we live in challenging times, and I understand that not everyone can or wants to buy a paid subscription. I’m happy to have you here either way!