The good guys prevailed in the Supreme Court today, which ruled unanimously that the abortion drug mifepristone should stay fully available:
Writing for the court, Justice Brett M. Kavanaugh said the antiabortion doctors who brought the case do not prescribe or use mifepristone, and the FDA’s relaxed regulation of the medication does not require those doctors to do or refrain from doing anything.
“Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” Kavanaugh wrote. Under the Constitution, he added, a group’s “desire to make a drug less available for others does not establish standing to sue.”
The ruling is a weak one, since it's based solely on standing. This is thanks to a fairly moronic decision by the Alliance Defending Freedom, which chose to pursue the case with doctors who supposedly suffered some kind of vague psychic harm merely from the possibility of having to treat a woman suffering side effects from taking mifepristone. Even the current Supreme Court was never likely to buy this.
So this is basically still an open case. Mifepristone is safe for now, but it could still be challenged on the merits by someone with a more colorable argument for standing. At that point, arguments about how the FDA approved changes to mifepristone marketing would be back in play, as well as arguments that the Comstock Act prohibits sending mifepristone through the mail. But even if that succeeds, I suppose there's always FedEx and UPS.
No, actually. If the Sinister Six decide to bring back the 19th century in full, the Comstock Act applies to private mail and package delivery services as well. Section 1462.
I don't know why nobody is trying to pin Trump and the Republicans down on the Comstock Act.
It seems they would have no choice but to say they support it and electing Trump would make abortion impossible virtually anywhere in the country.
Does Amazon have a pharmacy service? If they do, Bezos will be buying another yacht.
Does it really matter?
If Trump wins won't his AG rule that the Comstock Act prohibits the interstate movement of any abortion drug or any instruments used in an abortion?
Marketing?? The changes were to when it could be prescribed and by whom. Sure, that might find its way into "marketing" but is not the same thing.
The inanity of the substance of the case and the opinion (the fact they took the case seriously enough to hear it) boggles the mind. We are ruled by morons enslaved to words written two centuries ago and in that time were written with the express concern that they must be changed as time marches on.
They had to take the case. The previous ruling from the appeals court rolled back the approval so it couldn't be mailed or used for pregnancies between 7 and 10 weeks.
What I want to know is why there are no consequences for Kacsmaryk or the 5th circuit for saying the plaintiffs had standing when they clearly shouldn't have. I would assume SCOTUS shouldn't be in a position of having to rule on something as basic as standing.
The Circuit Courts handle thousands upon thousands of cases per year; SCOTUS only does about 100. So, basically the Circuit Courts have a large degree of freedom from oversight/impunity.
Getting slapped down on an elementary issue by the next level up is usually considered a chastening lesson to stay more safely inside governing precedents, as in "go stand in the corner and don't embarrass yourselves or us like this again anytime soon, doofus."
We can see how well that's worked with Aileen Cannon in the 11th circuit. Not to mention that SCOTUS has eagerly followed 5th circuit inventive excursions outside the lines in some recent cases from Texas and Alabama.
I wish I had a better answer than "be careful who gets appointed as circuit judges." Between Leonard Leo's Grooming Academy and Farm System on the one hand and how much influence senators have in who gets appointed, it isn't much to rely on.
unanimous only because alito and thomas (and possible the rest of the right wing of the court) are worried about the election.
No, it was unanimous because the stupid argument about why the doctors had a case would have caused an enormous amount of extra work for the court. Even Thomas slapped them down hard for wasting the courts time. As he said in his concurring opinion "the allegedly injured parties — the doctors — are two degrees removed from the party before us pursuing those injuries."
you think the right wing judges on SCOTUS like thomas and alito are restrained by stupid arguments?
In this particular case, Thomas and Alito clearly were restrained by the stupid arguments of the case before them. Even they have limits to how much stupidity they can swallow. Which is a little bit reassuring.
do they?
"In a 6-3 ruling on ideological lines, with the court's conservatives in the majority, the court held that an almost 100-year-old law aimed at banning machine guns cannot legitimately be interpreted to include bump stocks.
Writing for the majority, Justice Clarence Thomas said that a firearm equipped with the accessory does not meet the definition of "machinegun" under federal law."
I'm actually sorry that men cannot get pregnant. I'm certain we would not be having this discussion.
You'd think that, but there is polling that shows, in Texas at least, that there isn't really a significant difference by gender in responses to the question of whether or not abortion should be legal or illegal in most cases.
Lotta religious kooks out there, both male and female . . .
we'd be having a conversation about why mifepristone should be illegal for women but is cool for guys because something something.
The ruling would seem to preclude trying to attack mifepristone use through the courts. "[U]nder Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes."
No, this ruling does not preclude trying to attack mifepristone use through the courts. It prevents these plaintiffs from doing so.
Except that it's all but impossible to envision who would have standing to bring such a case.
Soon enough they'll find a doctor or doctors who claim they were forced to prescribe it against their deeply held objections. In this case the plaintiffs screwed up because they didn't get a single doctor who had been required to prescribe it, so all the arguments were hypotheticals of them at some imaginary point in the future having to prescribe it.
Seems to me this ruling doesn't affect future rulings only by those with or without standing
When you can't even get Alito on your side, you've got a REALLY weak case. Even a passing familiarity to the idea of standing would be enough to toss this in the dumpster right from the start. Boo on you Kacsmaryk.
The standing argument was utterly insane and rejecting it on that alone is a good thing. Had the argument succeeded, I guess a group of doctors could sue to make guns or alcohol or red meat illegal because of how those products impact their practice. Sorry but that would be stupid.
What about the psychic harm I suffer just knowing these doctors exist and there's no way to guess ahead of time if the one I end up with is some kind of secret cultist?
I see two possibilities.
If they were forthright on the issue of standing, they would not have granted certiorari. The basic facts of the case did not change; the arguments of standing were part of the arguments against certiorari.
Since the requirement is for at least 4 justices to grant certiorari, it seems possible that the four most dogmatic conservatives were more than willing to overlook standing in order to ban Mifepristone. But I think a majority would have invoked the harm principle. And so, after having spoken to each other after oral arguments, they settled on agreeing with the standing issue.
Alternatively, if there was a majority willing to ban Mifepristone because of FDA process, they may have seen a decision banning Mifepristone as a political issue at the wrong time.
No doubt that at least four of them did a conspicuous 180 in the end.
Another possibility that occurs to me is about what's said in concurring opinions. Thomas in particular likes to use them to lay out the kinds of cases and issues he wants to see and where he'd go with them. Today what I've heard is that he's musing about invalidating associational groups suing on members' behalf, eg Planned Parenthood, ACLU, NAACP. So he could have voted for cert just to say that, planning to ultimately reverse course the whole time. Others could have had their own reasons to want an obviously bad case on the docket, a sacrificial lamb for messaging. (They take a lot fewer cases than they used to, iirc, so they have room to squeeze one or two in.)
In other words,sometimes their aims could go beyond the immediate case. That isn't supposed to happen in theory, but a lot of telegraphing has been done through opinions for a long time.
I didn't even bother to read the opinions on account that it was said that it wasn't very good. But you got my interest perked up so I read it, well, most of it.
"Associational standing" is at the heart of Thomas' concurrence. But, he clearly does not see the double-edged sword that his opinion represents. The Chamber of Commerce would not be able to sue the FTC on behalf of its members, nor could the CTIA sue the FCC.
True. But that might not matter as much as it seems at first blush-- if a trade association won't be able to sue, then one of its members, or a major stockholder, would be pretty likely have enough money to finance these kinds of suits on their own (could even work out cost-sharing behind the scenes among individual people or companies, nothing illegal about private deals like that) . . .
Actually, bag that line of thought. All that would happen is that associations would find good individual plaintiffs to get behind, and then could do almost everything they do now, just at one remove. That's how a lot of landmark civil rights cases happened. Associations might even be able to file amicus briefs, just not appear as plaintiffs themselves.
Unless Thomas has something more nefarious in mind-- which he may well, because I think voting rights and apportionment cases have been typically associational, and individual standing could be hard to demonstrate to a court that isn't interested in the issues. Not sure what other areas would be like that, and I don't think anti-regulatory cases would have that kind of difficulty, so it might well end up favoring money. What a surprise that would be.
The danger in this dispute, if I understand it, has little to do with mifepristone or the right to abortion. It's that once the Court decides the FDA is not permitted to make the call on whether it's safe or allowed, the door will be open to hundreds of more cases in which interest groups will be preventing all the regulatory agencies from implementing legislation by writing the rules. For example, they will want to stop the EPA from mandating limits on levels of toxins in the drinking water, and certainly the FEC from regulating how states run elections.
This is Steve Bannon's dream: To "dismantle the administrative state." In this regard federal agencies currently do the work that Congress has neither the time nor the expertise to do. Without them, no one knows how to write the regulations that implement the laws. So it would all revert back to [scare music] the White House.
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