It’s been two weeks since US District Judge Matthew Kacsmaryk issued an order “staying” the FDA’s 2000 approval of mifepristone. To say the thing out loud — that a drug, which has been rigorously tested and used for 23 years to safely terminate pregnancies, is dangerous and must be immediately yanked off the market because of one lunatic judge in Texas — is almost too painfully idiotic. Particularly since the danger here is to doctors forced to treat the fictitious hordes of women flooding emergency rooms bleeding out their vaginas from failed abortions. But thanks to Mitch McConnell and Donald Trump … here we are.
They parked this guy in a single-judge district in Amarillo to tee him up for the rabidly conservative Fifth Circuit, and he’s going to gut civil rights laws and the administrative state (i.e. the part of government that ensures corporations don’t poison you and steal your money). That is his only purpose on this earth.
The only question is whether this case is too cackhandedly stupid for conservatives to let it stand. Because it is embarrassingly bad on both the facts and the law and will wreak absolute havoc if allowed to become precedent. And that’s why the federal judiciary has been tossing it around like a live grenade stuffed in a rancid goat head for two weeks now. Most recently, Justice Samuel Alito extended the stay which was to expire last night through Friday at midnight.
The Fifth Circuit’s order last week, penned by two 40-something Trump appointees named Kurt and Andy, was, if anything, worse than the trial court’s monstrosity. They accepted the lie that mifepristone was rushed through using emergency protocols, despite the fact that it went through a rigorous, four-year approval process, and the emergency protocols were only employed to add a dispensing regimen that made it harder for women to access the drug. But in an attempt to make their decision seem reasonable by comparison to Kacsmaryk’s, they acknowledged that the six-year statute of limitations had elapsed to challenge the original 2000 mifepristone authorization. Instead they purported to shitcan only the FDA’s modifications to dispensing protocols in the past six (really seven) years. This includes the 2023 rule which made permanent the COVID-era rule allowing remote prescription of the drug, despite the fact that it wasn’t challenged because the case was filed in 2022.
If Kacsmaryk’s order relied on mental gymnastics to create standing for the plaintiffs, the Fifth Circuit’s ruling requires a feat of contortion worthy of Cirque du Soleil. Because the trial court said that the plaintiffs, an association of medical professionals who were stressed out from having to treat women for whom the mifepristone/misoprostol abortion regimen failed, could at least rely on the mere presence of the drug on the market to support their supposed claim of injury. It was still dumb and relied on vastly inflating both the risks of taking the drug and the likelihood that any member of the organization would have to treat a woman suffering from it, but there was at least a through line between the drug’s authorization and the plaintiffs made-up injuries.
The Fifth Circuit makes that fantastical connection even more tenuous by saying that the plaintiffs’ harms are directly traceable to changes in the FDA’s mifepristone dispensing protocol in 2016, 2019, 2021, and 2023. The 2019 change was simply the approval of a generic version of the drug, which could not possibly affect the plaintiffs in any way, so the Fifth Circuit didn’t bother trying to defend it. Instead, Kurt and Andy — ughh, fine, Judges Engelhardt and Oldham — needed to “prove” that the plaintiffs were harmed by the change from an in-person dispensing requirement with multiple doctors’ visits and a seven-week gestational limit to a telemedicine protocol where nurse practitioners can prescribe the drug for women up to 10 weeks along.
To do this, they relied on a misreading of the drug warning label to conjure up 350,000 women in emergency rooms seeking care. But, as the FDA points out in its reply brief to the Supreme Court, this assumes that (1) every woman for whom the drug does not work will require urgent medical attention, and (2) they’ve all been prescribed the drug remotely by a nurse, so they’ll be forced into emergency rooms where they’ll bleed all over the place while monopolizing the plaintiffs’ time and sucking up resources from other patients. In fact, the majority of those women are not hemorrhaging — they’re just still pregnant! And so they go back for another dose of the drug, or they seek a surgical abortion, neither of which they’ll get from the plaintiffs.
It’s achingly fucking stupid. And on top if it, by vaporizing the past six years of evidence-based rule making by the FDA, the Fifth Circuit undoes a dosing modification which cuts recommended prescription of mifepristone from 600mg to 200. So science-y!
But if that were the extent of it, the Supreme Court’s six conservatives would no doubt bless the decision. The real problem for them is likely to be the issue of standing. Because these people hate women a lot, but there’s room in their black hearts to hate throwing open the courthouse door for people to redress injuries, too. And the effect of ripping open this hole in standing to allow a group of plaintiffs to access the court based on speculation that one of their members might be injured at some indeterminate future date is going to be a big pill to swallow, even for the court’s wingnut wing. Which is why the FDA relies heavily on a 2006 Supreme Court decision by none other than Justice Antonin Scalia, heaping scorn upon this theory of statistical standing when the Sierra Club tried it to protect California forest land:
The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than “700,000 members nationwide, including thousands of members in California'” who `use and enjoy the Sequoia National Forest,” … it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result.
This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.
And so, we are reduced to hoping that Justice Brett Kavanaugh and Chief Justice John Roberts will side with the court’s liberal justices to bounce this turkey on standing. But that’s a bitter pill for us, so let’s instead end with a quote from the drug manufacturer Danco’s stay application, which righteously mocks the plaintiffs for their supposed “injuries,” which are, after all, taking care of women in a medical emergency:
Aided by these rampant factual revisions, the Fifth Circuit transforms the daily realities of medical work into an Article III harm. A doctor’s job is to treat patients. That is true regardless of whether the doctor agrees with the patient’s choices that have led them to seek medical care (e.g., smoking, legal (or illegal) drugs, poor nutrition, religious abstention from other types of treatments). The emotional discomfort associated with providing medical care to a person with whom a physician has a moral, ethical, or religious disagreement is not an Article III injury. … Having to “devote” time and resources to care for multiple patients at once is likewise not an Article III injury for emergency room physicians. It is part of the job.
Yes, all of that. Keep the faith.
[Alliance for Hippocratic Medicine v. FDA, trial docket via Court Listener / Alliance for Hippocratic Medicine v. FDA, appellate docket via Court Listener / FDA v. Alliance, SCOTUS docket / Danco v. Alliance, SCOTUS docket]
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