The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 Third, Roberts analogizes this case to the other COVID litigation, and cites his formerly-super-but-now-non-precedential South Bay concurrence.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 Casey, WWH, 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.