Bonus 22: The Mifepristone Mess, Continued

The Fifth Circuit kinda sorta froze part of Judge Kacsmaryk's deeply flawed mifepristone ruling in a deeply flawed ruling of its own, one that puts the Supreme Court in a very awkward position

Hi all. This is usually the time for the weekly “One First” bonus content—special weekly tangents and frivolity that is available only to paid subscribers to the newsletter (unlike the Monday newsletter, which will remain free for as long as I’m able to do this). But given intervening events, I thought it would be more appropriate to write about last night’s Fifth Circuit ruling in one of the pending mifepristone cases—and the awkward position it puts the Supreme Court in over the next 39 hours. And given the substance, today’s post is free to all.

I’m going to assume folks have some familiarity with the mifepristone litigation, but would recommend my post from Monday and/or Adam Unikowsky’s unsparing evisceration of Judge Kacsmaryk’s ruling as a good primer/jumping-off point. As a reminder, the Biden administration had asked the Fifth Circuit to rule on its request for a stay (or, at least, an “administrative” stay) no later than noon today (Thursday), or else it would go to the Supreme Court for the same relief.

Welp, the Fifth Circuit ruled late last night. And it’s a doozy. The three-judge panel (Haynes, Englehardt, & Oldham, JJ.) all agreed that Kacsmaryk’s ruling should be stayed as to the FDA’s original 2000 approval of mifepristone—because the plaintiffs’ claims likely fall outside of the relevant federal statute of limitations. (Kudos to my UT colleague Susie Morse and her student, Leah Butterfield, who have been making this point to anyone who will listen.)

But then, the panel divided. With Judge Haynes apparently disagreeing, Judges Englehardt and Oldham declined to stay Kacsmaryk’s ruling as applied to most of the FDA’s subsequent actions with respect to mifepristone. The two most important upshots of this are to put back into effect the onerous in-person dispensation requirements (so, no more mifepristone by mail); and to limit the approved on-label use of mifepristone to pregnancies in their first seven weeks (when many don’t yet know they’re pregnant), rather than the first ten weeks. In other words, the Fifth Circuit’s ruling, if not further modified by the Supreme Court, doesn’t go as quite far as Kacsmaryk’s (mifepristone would still be available and lawful in many cases); but it would dramatically curtail access to mifepristone compared to what was true as recently as last Thursday.

As I wrote on Monday, that would leave those who are pregnant but can’t obtain mifepristone in time with three less safe/effective alternatives: a misoprostol-only abortion; a procedural abortion (in states that still allow them); or carrying the pregnancy to term.

Others may (and will) have more to say about the biggest problems with the Fifth Circuit’s reasoning, but to me, there are four big points to make about the Fifth Circuit’s analysis, before turning to what this might mean for the Supreme Court.

Big point 1—Dispensation is the Biggest Issue: Although it takes a chart to map out which parts of Kacsmaryk’s ruling the Fifth Circuit is and isn’t blocking, the biggest part that is not blocked is the effective elimination of obtaining mifepristone by mail. The key reason why mifepristone has become so central to abortions nationwide (now accounting for well more than half of them) is because of how easy it has been to access and obtain since 2021—especially, after Dobbs, in contrast to the difficulties of pursuing other abortion methods in states that are hostile to them. Moving the on-label timing from 10 weeks to 7 weeks is a problem, but doctors could presumably still prescribe mifepristone off-label without running afoul of the Kacsmaryk ruling, so the 10-weeks-versus-7 feature isn’t nearly as big of a deal in practice.

Big point 2—The Fifth Circuit’s Standing “Analysis” is Limitless: In holding that the government is not likely to succeed on the merits of its challenge to Kacsmaryk’s ruling, the Fifth Circuit endorsed Kacsmaryk’s analysis of why anti-abortion doctors have Article III standing to challenge the FDA’s approval of mifepristone—and the theory that doctors suffer an “injury in fact” anytime it is possible that a drug or other medical procedure will cause harm to their patients that they might have to treat and remedy at some future point. This “logic” would allow a single medical provider anywhere in the country to claim standing to challenge any government policy that (even arguably) increases the health risk to any person. That kind of injury is both speculative and generalized, and thereby flunks two of the requirements that the Supreme Court has repeatedly read into the Constitution as essential limits on the power of unelected, unaccountable judges in our constitutional system. As I wrote previously in the context of the student loan cases, once again, conservative judges seem to be willing to abandon what used to be core “conservative” principles of standing jurisprudence now that they are ascendant.

Big point 3—The Inversion of Irreparable Harm: One of the critical considerations when a party seeks a stay of a lower-court ruling, as the government did here, is whether the lower-court ruling will cause irreparable harm if not blocked. The Fifth Circuit panel somehow finds that the government hasn’t made any real showing of irreparable harm here (although it seems to think that Danco Laboratories has). This is especially galling for two different reasons: First, the Supreme Court spent the entire Trump administration regularly staying lower-court injunctions of government policies (kinda like Kacsmaryk’s ruling here) in cases in which the government’s only argument for irreparable harm was that the government is irreparably harmed whenever one of its policies is blocked. Indeed, I was quite critical of this trend, which can be traced directly to a 2012 in-chambers opinion by Chief Justice Roberts, and indirectly to a series of such opinions by then-Justice Rehnquist. The Fifth Circuit doesn’t discuss these cases at all. So is it that the Supreme Court was wrong in each of those instances, or is it that Republican administrations suffer irreparable harm when their policies are blocked, but Democratic ones don’t?

Second, and related, the “balancing of the equities” that stay analysis is supposed to reflect is also supposed to account for the public interest, including the potential harm to non-parties of allowing the lower-court decision to go into effect (versus the harm from putting it on hold). There is overwhelming data to support the conclusion that, without access to mifepristone, more pregnant people will be pushed into more harmful and/or less effective alternatives, including misoprostol-only abortions (assuming misoprostol isn’t next); procedural abortions; or carrying pregnancies to term (including pregnancies that are not viable). What is the countervailing harm that would result from pausing Kacsmaryk’s ruling for the duration of the appeal? Well, the Fifth Circuit says it’s the harm to all of the people who might be injured by using mifepristone, never mind that the very data on which Kacsmaryk relied for that proposition is … not exactly scientific. Again, the Fifth Circuit’s ruling thus reinforces some of the most exasperatingly preposterous features of Kascmaryk’s order.

Big point 4—The Comstock Act. The Fifth Circuit also leaned into Judge Kacsmaryk’s analysis of the Comstock Act of 1873 as effectively banning the transportation of all abortion-inducing medication through the mail, a reading that has tons of procedural and substantive flaws all its own (flaws the Fifth Circuit didn’t do anything to address).

So, now what?

It seems pretty clear to me that the Fifth Circuit ruling was crafted, quite deliberately, as an attempt to take steam out of intervention by the Supreme Court. By blocking Kacsmaryk’s “stay” of the 2000 approval of mifepristone itself, the court of appeals has blunted the biggest and most staggering effects of last Friday’s ruling in a way that might at least superficially augur against the FDA and/or Danco Laboratories taking this to the Supreme Court.

Some may therefore try to pitch this ruling as a compromise. But make no mistake: It isn’t. The Fifth Circuit has relied upon a limitless theory of standing, a “science is for suckers” view of the merits, and a stunningly expansive reading of a 150-year-old (and poorly drafted) criminal statute in order to allow a single, hand-picked district judge to dramatically curtail abortion access on a nationwide basis—even in states that have endeavored to make such access broadly and easily available.

What’s more, the Fifth Circuit’s ruling is much messier than Judge Kacsmaryk’s—creating the specter of chaos as doctors, pharmacists, and others involved in abortion care try to figure out what is and is not permitted if and when the rest of Kacsmaryk’s order goes into effect. There’s also now the distinct possibility that, given the countervailing injunction issued by Judge Rice in the Washington case, it will be only that much harder for the FDA to comply with both rulings—further underscoring the need for the Supreme Court to step in. The Fifth Circuit’s ruling late Wednesday also expedites the appeal of Kacsmaryk’s ruling so that it will be decided by the “next available” merits panel. But that’s not going to happen quickly enough to prevent serious potential interruptions to abortion access, which brings us back to where I started on Monday: Both Justice Alito’s majority opinion in Dobbs and Justice Kavanaugh’s concurrence stressed that the ruling was intended to return the question of abortion access to the states. By leaving intact a decent chunk of Judge Kacsmaryk’s ruling from last Friday, the Fifth Circuit ruling flies firmly in the face of that claim.

Thus, I still think that the Biden administration and/or Danco have to ask the Supreme Court for further relief. The Fifth Circuit’s ruling may give some of the Justices superficial cover to deny such a request, but there’s too much at stake, and the Fifth Circuit’s ruling is too flawed in its own right, to let the court of appeals have the last word for now.

If that happens, that means an application to Justice Alito in his capacity as Circuit Justice for the Fifth Circuit, for a stay pending appeal and a temporary “administrative” stay to prevent the rest of Kacsmaryk’s order from going into effect while the Justices decide whether to grant a stay pending appeal. Alito has the authority to rule by himself, but the recent norm, which has been universally honored so far as I can tell, has been to refer all potentially divisive applications to the full Court (including the Trump administration’s 2020 application to block a lower-court ruling that had required the FDA to make mifepristone more widely available, a context in which the Court did defer to the federal government).

In other words, it could be a very busy next 39+ hours at the Court (and we’re supposed to receive one or more rulings in argued cases tomorrow at 10:00 ET).

Sigh.