SCOTUS Stays Injunction in FDA v. ACOG

Chief Justice Roberts, concurs citing South Bay. Justice Sotomayor dissented, joined by Justice Kagan.


Tonight, the Supreme Court stayed the District Court's injunction in FDA v. American College of Obstetricians and Gynecologists. This case first entered the shadow docket back in August, when Justice Ginsburg was on the Court. In October, the Court punted, hoping the District Court would dissolve the injunction in light of changed circumstances. No go for Judge Chuang. In December, the SG returned to the Court. After some more briefing, the Court issued an order tonight. Three justices would have denied the stay.  Presumably, the five conservatives, plus Chief Justice Roberts voted to grant a stay.

The per curiam opinion was unsigned. The Chief wrote a one paragraph concurrence:

The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman's right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court's own evaluation of the impact of the COVID–19 pandemic. Here as in re-lated contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the "background, Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in denial of application for injunctive relief) (slip op., at 2). In light of those considerations, I do not see a sufficient basis here for the District Court to compel the FDA to alter the regimen for medical abortion.

The Chief never wastes words. And he packs a lot into this short missive. First, he recites the "undue burden" standard. He doesn't cite Casey, but he implicitly reaffirms that precedent. He does not allude to the policy's benefit, per Whole Woman's Health. I am still convinced Roberts votes to overrule WWH as a misapplication of Casey. Second, the ruling is inherently equitable. Roberts really does not like District Court injunctions. Only one judge is allowed to dictate the actions of the entire federal government. And his name is John Roberts. For the Chief, everything is about deference. Third, Roberts analogizes this case to the other COVID litigation, and cites his formerly-super-but-now-non-precedential South Bay concurrence. At least someone will still cite it.

Justice Breyer would have denied the application. But he did not write or join a dissent.

Justice Sotomayor wrote a dissent from the grant of the stay, which was joined by Justice Kagan. Justice Sotomayor relied on CaseyWWH, and June Medical. She agreed with the District Court that the government's policy imposes an undue burden on abortion.

Justice Sotomayor also responded to the Chief's concurrence. She agreed with the general premise of South Bay.

The concurrence argues that courts should nonetheless defer to the FDA's decision not to lift mifepristone's in-per-son requirements during the pandemic. I agree that defer-ence is due to reasoned decisions of public health officials grappling with a deadly pandemic. See South Bay Pente-costal Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in denial of application for in-junctive relief) (slip op., at 2); see also Roman Catholic Dio-cese of Brooklyn v. Cuomo, 592 U. S. ___, ___ (2020) (SOTOMAYOR, J., dissenting) (slip op., at 2) (citing medical expert declarations supporting challenged responses to the current pandemic).

But Justice Sotomayor would only defer to the government during the pandemic if it submits some "reasoning."

But the record here is bereft of any reasoning. The Government has not submitted a single declaration from an FDA or HHS official explaining why the Government believes women must continue to pick up mifepristone in person, even though it has exempted many other drugs from such a requirement given the health risks of COVID–19.

Later, she calls for a "reasoned decision." A "reasoned decision" seems more onerous than "any reasoning."

There simply is no reasoned decision here to which this Court can defer. Cf. Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___, ___ (2020) (KAGAN, J., dissenting in denial of application to vacate stay) (slip op., at 7) (deference not due where the government "has not for a moment considered whether recent COVID conditions demand changes").

Justice Sotomayor closed with an obvious point. The Biden Administration will almost certainly rescind the policy, thus mooting the case. She explained, with a citation to RBG:

One can only hope that the Government will reconsider and exhibit greater care and empathy for women seeking some measure of con-trol over their health and reproductive lives in these unset-tling times. See Gonzales, 550 U. S., at 172 (Ginsburg, J., dissenting) ("[Women's] ability to realize their full potential . . . is intimately connected to their ability to control their reproductive lives" (internal quotation marks omitted)). For now, I respectfully dissent.

One can do more than hope. On January 20, the Biden administration will end this policy. But that timing raises a question. Why would the Court rule on this case when the Trump Administration will end in eight days (or less)?  Last month, I observed:

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?

Perhaps the dissenters forced the opinion. Another week or so, and this case would have simply fallen off the docket. Justice Breyer perhaps would not go along with this ploy. Now, we have another shadow docket ruling on abortion.

NEXT: So Delighted to See So Much Interesting and Important Commentary from My Colleagues Here

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  1. While nothing is certain, the most likely reasoning here is that there are five feverently anti-abortion rights Justices who wished to make a statement, a political statement, a policy statement, that they are on the Court to get rid of abortion rights. This combined with the CJ’s natural predilection against pre-emptive injunctions forced the Court’s hand.

    Yes, in a few days this will be moot. And the Biden administration will move to support the conservative view that government has no right or business in involving itself with respect to the health and welfare of a woman with respect to her body, that decisions such as whether or not to have an abortion when the fetus is not viable outside the womb is a decision that is made by the woman, in consultation if she wishes, with her family, friends and clergy. But not in consultation with or interference from government officials who do not know her, know her situation, have any interest in her life or right to interfere in what is one of the most private decisions a woman can make.

    1. “Health and welfare of a woman with respect to her body”. And there’s the problem. The question is whether abortion involves just her body. The Supreme Court is in no position to decide that question as the Constitution does not address it. The Supreme Court apparently objects to courts intervening to invalidate existing laws concerning unenumerated rights during a pandemic, but would require courts to strike down new government actions that infringe on enumerated rights. I can see the consistency with the conservative wing of the court, but I don’t see how the liberals can argue with a straight face that the government must justify continuation of its existing regulations, but does not need to justify (or may weakly justify) new regulations that explicitly target protected rights.

  2. RE: “Presumably, the five conservatives, plus Chief Justice Roberts …”

    Roberts is a conservative. A near-extreme right-winger. You can count, on your fingers, the cases where he has dissented from right-wing orthodoxy.

    1. In absolute terms, yes. In comparative terms, not so much which says more about the extreme positions of the five than about Roberts. And those few cases of the fingers have been some pretty important cases.

    2. If you think that Roberts counts as a “near-extreme right-winger”, you are astonishingly ignorant of your political opposition.

      It’s okay and even helpful to disagree with people. It’s a lot less healthy to disagree with parodies of them that only exist in your own head.

  3. “Reasoned decision”

    Does “people sing in church and stand there for an hour” constitute a “reasoned decision?”

    1. re: does it constitute a “reasoned decision”

      Yes. Badly reasoned but at least it’s some reason. Sotomayor has a point that in this case, the FDA apparently offered no reason for their decision.

  4. I am no fan of abortion but agree at least with the outcome of the dissent in this case. I think this decision is wrong on it’s face especially in comparative terms of what other drugs are allowed to not be obtained in person.

    The rules are becoming even more nonsensical and based in politics instead of science and reasoning for this pandemic.

    I agree that ‘any reason’ isn’t nearly equal to ‘reasoned decision’.

  5. How would dissenters force the opinion? If the majority does not issue an opinion what is there to dissent from? Can dissenters prevent opinions?

  6. I have consistently agreed with the conservatives that the constitution provides absolutely no sarrant for judges to interfere with abortion laws, However, I also agree with Chief Justice Rehnquist that the court needs to proceed in an orderly manner.

    In my view, this includes making any major changes only in cases that have been fully argued and get full opinions, and not making any major rulings or establishing any major principals based on the shadow docket.

    I also agree there was no need for the court to have decided this case given both the decision to punt in October and the fact that it will be mooted in a few days.

  7. I have consistently agreed with the conservatives that the comstitution provides absolutely no warrant for judges to interfere with abortion laws. However, I also agree with Chief Justice Roberts that the court should proceed in an orderly manner.

    In my view, this includes making any major changes only in cases that have been fully argued and get full opinions, and not making any major rulings or establishing any major principals based on the shadow docket.

    I also agree there was no need for the court to have decided this case given the decision to punt in October and the fact that it will be mooted in a few days.

    An essential principal of judicial restraint is that the Supreme Court should decide a case only if it needs to. That principal applies here. The conservatives should be humbler and show more restraint. They should neither be nor appear overeager to have an opinion.

  8. “Presumably, the five conservatives, plus Chief Justice Roberts voted to grant a stay.”

    Lathering the rubes
    Lathering the rubes
    These right-wing law professors
    Lathering their rubes

    (commas, apparently, thought optional)

  9. How the case arose matters. It is a federal district court judge ordering a federal agency to change a rule that already exists because the judge thinks the rule should be suspended for the pandemic. Since the rule already exists, doesn’t Biden have to use the APA to change it? If so, that may take some time rather than making the case moot with Biden’s inauguration.

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