Making Sense of FDA v. American College of Obstetricians and Gynecologists

Eight months into the COVID-19 pandemic, the Supreme Court finally manages to punt on an abortion case.

|The Volokh Conspiracy |

On Friday evening, the Court decided FDA v. American College of Obstetricians and Gynecologists. At long last, an abortion case finally made it onto the Court's docket.

For nearly two decades, the federal government required doctors to dispense in-person mifepristone, a drug used in performing abortions. During the COVID-19 pandemic, the Trump Administration relaxed the in-person requirement for other drugs, but not mifepristone. ACOG argued that the failure to relax the in-person requirement itself constituted an undue burden under Casey. A District Court judge in Maryland entered a nationwide injunction, requiring the FDA to relax the in-person requirement. The District Court ruled on July 13, 2020.

Four months later, the Supreme Court finally ruled. But not really. The Court didn't grant a stay. It didn't deny a stay. Instead, the Court remanded the case back to the District Court. And during the remand, the stay application is held in abeyance. The unsigned per curiam order stretches a paragraph:

The Government seeks a stay of an injunction preventing the Food and Drug Administration from enforcing in-person dispensation requirements for the drug mifepristone during the pendency of the public health emergency. The Government argues that, at a minimum, the injunction is overly broad in scope, given that it applies nationwide and for an indefinite duration regardless of the improving conditions in any individual State. Without indicating this Court's views on the merits of the District Court's order or injunction, a more comprehensive record would aid this Court's review. The Court will therefore hold the Government's application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed. See Febre v. United States, 396 U. S. 1225, 1225–1226 (1969) (Harlan, J., in chambers); see also Parr v. United States, 351 U. S. 513, 520 (1956). The District Court should rule within 40 days of receiving the Government's submission.

The Roberts Court has kicked some transparent punts. But this one takes the cake. Rather than granting or denying the stay, the Court holds the application in abeyance. We are in the middle of a pandemic. Four months have elapsed sine the District Court decision. The Supreme Court has had this case, fully briefed for a month. And now, the Court has asked the District Court to take another 40 days and 40 nights to revisit its order. Plus factor in the appeal to the Fourth Circuit. And this case will likely not be fully briefed back up at the Court until December. And come January, the Biden Administration will relax the rule. And thus the case is mooted. The Roberts Court is genius. We are all just too stupid to see its wisdom. The Solicitor General does abuse the shadow docket. Maybe this order is some form of retribution? Maybe the Court is waiting to seek Amy?

Here's what I think happened. The case was fully briefed on September 10, 2020. At that point, there were five solid votes to deny the stay: Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. While Justice Alito was drafting his dissent, Justice Ginsburg passed away. And the Chief lost his fifth vote. Of course, the Court could have 4-4'd, but that would have actually denied a stay, which was a ruling. And then it would be obvious that Kavanaugh and Gorsuch voted in favor of abortion rights. So the Court came up with a Kaganic compromise. Deny the stay without denying the stay. That move took some time to work out. Hence, the delay in issuing the short order. Now, we have an unsigned per curiam opinion where the authorship is unknown. And it says nothing about the merits. (I alluded to this chicanery in my imagined #SCOTUS group chat).

In any event, Justice Alito's dissented, joined by Justice Thomas. First, they alluded to the lengthy delay in resolving the SG's emergency petition.

Six weeks have passed since the application was submitted, but the Court refuses to rule. Instead, it defers any action until the Government moves in the Dis-trict Court to modify the injunction and the District Court rules on that motion, a process that may take another six weeks or more. There is no legally sound reason for this unusual disposition.

The word "unusual" here signals something fishy was going on.

Alito wrote that the remand makes no sense. If the District Court's injunction was over-broad, the Court should stay it, not give the District Court six weeks to change it.

The only justification even hinted by the Court is the possibility that modification of the injunction may be re-quired due to changes in the severity of the problems caused by the COVID–19 pandemic, but that possibility does not justify the Court's refusal to rule. Indeed, for all practical purposes, there is little difference between what the Court has done and an express denial of the Government's application.

Why did the Court jump through these hoops? To avoid having to reconcile ACOG cannot with South Bay and Calvary Chapel.

There is, however, one difference (but not a legally significant one) between what the Court has done and the express denial of the Government's application. Expressly denying a stay would highlight the inconsistency in the Court's rulings on COVID–19-related public safety measures. In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies. The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred.

I suspect Justices Alito and Thomas have New York in mind.

Justice Alito further highlights a tension: the District Court used the pandemic to expand Roe.

While COVID–19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade, 410 U. S. 113 (1973).

Indeed, Alito says the District Court judge flouted Chief Justice Roberts's admonition from South Bay.

Nevertheless, a District Court Judge in Maryland took it upon himself to overrule the FDA on a question of drug safety. Disregarding THE CHIEF JUSTICE's admonition against judicial second-guessing of officials with public health responsibilities, the judge concluded that requiring women seeking a medication abortion to pick up mifepristone in person during the COVID–19 pandemic constitutes an "undue burden" on the abortion right, and he therefore issued a nationwide injunction against enforcement of the FDA's requirement.

Yet at this time, Maryland allowed people to leave their homes and go to far riskier businesses. And doctor visits were always deemed essential.

The judge apparently was not troubled by the fact that those responsible for public health in Maryland thought it safe for women (and men) to leave the house and engage in numerous activities that present at least as much risk as visiting a clinic—such as indoor restaurant dining, visiting hair salons and barber shops, all sorts of retail establishments, gyms and other indoor exercise facilities, nail salons, youth sports events, and, of course, the State's casinos.

Alito adds that the nationwide injunction applied in all states, regardless of COVID-19 restrictions:

And the judge made the in-junction applicable throughout the country, including in locales with very low infection rates and limited COVID–19 restrictions

Alito closed with a charge of hypocrisy:

Under the approach recently taken by the Court in cases involving restrictions on First Amendment rights, the proper disposition of the Government's stay application should be clear: grant. But the Court is not willing to do that. Nor is it willing to deny the application. I see no reason for refusing to rule.

It's a shame that Justices Gorsuch and Kavanaugh were MIA because abortion. It is easy to cast a vote against abortion when you are in dissent (June Medical). But it is much tougher when the vote counts.

NEXT: The Third Rule of Court Packing Is You Only Talk About Court Packing After The Election

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  1. The case was fully briefed on September 10, 2020. At that point, there were five solid votes to deny the stay: Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. While Justice Alito was drafting his dissent, Justice Ginsburg passed away. And the Chief lost his fifth vote. Of course, the Court could have 4-4’d, but that would have actually denied a stay, which was a ruling. And then it would be obvious that Kavanaugh and Gorsuch voted in favor of abortion rights.

    Er, if the court was 4-4 (Roberts + three remaining libs v four conservatives) how do you deduce that Kavanaugh and Gorsuch are in favor of the Roberts + three libs position ?

    1. Forget it, he’s rolling.

        1. Now we know where the ‘let’s threaten to walk away from the debate we desperately need and our opponent wouldn’t mind skipping’ strategy originated.

          1. Much like court packing, your favorite jabbing dagger.

            1. Not nearly my favorite jabbing dagger. I wish it were not indicated.

              Shanking bigots is my favorite. Always fun. Always deserved. Always important.

    2. I was wondering that myself.

      The non-ruling IS outrageous, for the reasons addressed in the OP, but it wasn’t to protect Kavanaugh and Gorsuch. It was to protect Roberts.

    3. I assume it’s because they didn’t join Alito’s dissent.

      1. Except if they were really supportive of the majority, it would have been 6-2 to deny the stay and you wouldn’t have this non-decision.

  2. The same guy who does this sort of political hackery had the nerve to be mad at President Trump for calling Obama judges “Obama judges”.

    Why have any respect for institutions that are rotten to their cores? Is there anything left in or around D.C. that isn’t utter trash?

  3. ” In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights.”

    In this sentence, is “unprecedented” a legal term of art meaning “what, this again?”?

  4. People are always partial to their own children. Why be surprised the Court is more solicitous of rights it created itself out of whole cloth, than it is of rights that are merely enumerated in the Constitution?

  5. There are times when I see legal commentary that I have to remind myself that ivory-tower academics who work on big social-cause cases are detached from the way the courts work for everyone else.

    Because let me tell you, as much as you fervently want this case to be some groundbreaking issue, welcome to the real world, where courts frequently punt, avoid deciding the issue you want addressed, ask for further briefing on issues, and move much slower than you’d like. Because I look at this order and think, “Seems about right. The issue isn’t perfectly teed up, probably could be cleaned up, and the whole issue probably has a pretty short shelf-life, since we may have a new administration soon and we’ll not be in a pandemic forever.”

    I mean, while I appreciate you’d like things fast, my clients who wait six months or more for decisions on their motions, only to have issues punted don’t share your apoplectic response.

  6. Small editorial nitpick, you added the emphasis on ‘unusual’, it’s customary to note [emph added] to contrast it to the possibility that the dissent has the emphasis in the original.

  7. Anyone want to start a pool on when the Supreme Court is enlarged?

    In for March 17 (St. Patrick’s Day).

    1. It might take longer. A number of the new Democratic Party senators will need some cover when they break their promises to their voters. But they won’t wait too long. Most of them will have six years for the public to forget. By then DC and Puerto Rico will be states…maybe even the US Virgin Islands (my sometime home) and the other territories (either separately or combined).

      1. Most of what I hear centers on D.C. (Douglass Commonwealth) and Puerto Rico. Occasionally a reference to “Pacific Islands” (Guam, Northern Mariana, Samoa) or something similar, but not often.

        The U.S. Virgin Islands? Roughly 100,000 people. Seems scant for a state. Perhaps it could be part of the Commonwealth of Puerto Rico.

  8. If the effect of RBG’s passing was to take the decision from “denial of stay by 5-4 vote” to “affirming lower court’s denial of stay by equally divided court”, I fail to see why this theory has legs. Does anyone think Gorsuch and Kavanaugh have to be coy about their votes? And a short unsigned 4-4 per curium “denied” ruling doesn’t telegraph much either. Is the argument that Gorsuch and Kavanaugh need to be shy right now in order grease Barrett’s nomination and/or minimize impact on the election?

  9. I don’t understand the logic here. If, as you soecilate, Gorsuch and Kavanaugh joined Thomas and Alito to vote for a stay and this resulted in a 4-4 tie, why would announcing this result create an impression that Gorsuch and Kavanaugh had voted for a stay simply becuase they chose not to join an opinion explaining their decision?

    The implications could equally be argued the other way. By punting on the issue until a new Justice joins the court rather than ruling now, the court preserves its ability to break the tie and make a deicison one way or when the new justice joins. Because ruling now means upholding the stay, one could argue this actually tends to work in favor of the court’s conservatives, not its liberals.

    The reason is simple: 40 days is before the inauguration of the next president. So if Justice Barrett is confirmed this year, the court will have a chance to rule again this year, and the outcome after the punt may well be overturning the stay.

    It could be argued the reason Roberts punted rather than join the conservatives is because he doesn’t want 5-4 conservative decisions on abortion, decisions at risk of being altered when Thomas retires. He wants conservative abortion decisions to be 6-3.

    1. “I don’t understand the logic here. ”

      First time reading a Josh Blackman post?

    2. “It could be argued the reason Roberts punted rather than join the conservatives is because he doesn’t want 5-4 conservative decisions on abortion, decisions at risk of being altered when Thomas retires. He wants conservative abortion decisions to be 6-3.”

      Since Roberts siding with the conservatives would be 5-3, everyone would know that with a J. Barrett on the Court it would effectively be a 6-3 decision, and Thomas’ retirement wouldn’t change much. So not sure I buy that either.

      1. I think it would be more accurate to say that he doesn’t want 5-4 conservative decisions on abortion, because they’d be conservative decisions on abortion.

        I predict that, if Barrett is confirmed, we will see some 5-4 conservative decisions on abortion next year: With the Chief Justice on the 4 side of them.

        1. And if that’s true, one would expect Roberts to take a 4-4 denial of the gov’t motion for stay via affirmation (by equally divided court while he can).

          I am still skeptical that any of these reading the tea leaves type theories make sense.

  10. I am a strong believer in a woman’s right to choose (also in a man’s right to refuse to support a child out of wedlock or some other contract), but abortifacient drugs can cause massive internal bleeding and death. A drug that is designed to interrupt the natural functions of a human female body with a rick of death or serious injury is not something that should be prescribed over the phone.

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