The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.