The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Gaming out FDA v. American College of Obstetricians and Gynecologists, Part II

The 8-member Supreme Court gave the federal District Court once last chance. Will the Chief finally find a stay is warranted? Or will the Court grant cert before judgment, knowing the Biden administration will moot the case?


In October, the Supreme Court punted in FDA v. American College of Obstetricians and Gynecologists. At the time, I speculated that the five-member bloc to rule against the Trump Administration vanished with Justice Ginsburg's passing. And, without a clear majority, the Court hoped the federal district court would take a hint, and modify or dissolve the nationwide injunction. After all, the Court was short-handed, and did not wish to decide an abortion case shortly before the election. The Chief give Judge Chuang "one last chance" to mend his ways. Two months later, Judge Chuang has left the nationwide injunction in place.

Now, the Acting Solicitor General has filed a supplemental brief in support of a stay. And the SG, once again, contends that June Medical reversed the Whole Woman's Health benefit/burden framework:

[The District Court's injunction] flouts this Court's admonition that a law's "incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate" the law if the law "serves a valid purpose, one not designed to strike at the right itself." Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (plurality opinion). And it resuscitates the free-wheeling burdens-and-benefits "balancing test" that five members of this Court rejected just last Term. Appl. App. 37a. Moreover, it does all of that on a nationwide basis untethered from injuries to the plaintiffs (or their members) in this case, and thus from the specific case or controversy that the district court holds "[t]he judicial Power" to resolve. U.S. Const. Art. III, § 2, cl. 1.

What does the Court do here? I can see three possible options. First, the Court could issue an unsigned order staying the injunction. This shadow docket ruling would not need to resolve the status of June Medical. But there would probably be concurrences by up to four justices, reiterating that Whole Woman's Health is no longer the law of the land. The lower courts would take notice. It's possible that position could garner five, or even six votes. Second the Court could leave the injunction in place but narrow the nationwide relief to Maryland.

I am skeptical about these two options. In about a month, the Biden administration will simply rescind this policy, rendering the controversy moot. Does the Court really want to weigh in the June Medical debate from the shadow docket? Does the Court really want to cabin the district court's powers to issue a nationwide injunction on the cusp of an administration change?

There is a third option that could be prudent. The Court could treat the application as a petition for cert before judgment, and grant certiorari. Plus, the Court would enter a stay pending resolution of the petition. The Court could then put the case on the docket, knowing full well that the controversy will be mooted out on January 20.

I think this option would be attractive to the Court's progressives. A one month stay on a fairly narrow issue could forestall a major abortion ruling for the rest of the term. At this point, the Kagan-three needs to minimize collateral damages. This option would avoid opining, directly or indirectly, on June Medical and nationwide injunctions. And as part of a compromise to avoid a merits ruling, Justice Breyer and/or Justice Kagan would not signal a dissent from the grant of a stay. Justice Sotomayor would be the designated dissenter.