The Volokh Conspiracy

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Unikowsky on the Fifth Circuit's Mifespristone Decision

Another essential post.


Adam Unikowsky has another important post over at his Substack, this time taking on the Fifth Circuit's ruling on the stay in the mifepristone case: "Mifepristone and the rule of law, part III The Fifth Circuit's decision is wrong too."  He summarizes: "The Fifth Circuit's decision is less wrong than Judge Kacsmaryk's decision. However, it is still very, very wrong. In this post, I will attempt to explain why."

Just a short excerpt:

[In the most relevant precedent, the Supreme] Court then walked through several prior cases and explained: "This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity."

Well, there you go. I don't think that even the Fifth Circuit could say with a straight face that all members of the plaintiff organizations face a concrete risk of harm based on hypothetical patients entering emergency rooms, especially given that only a small number of members submitted declarations regarding alleged harms in the past. The Fifth Circuit instead reasoned that some unspecified percentage of doctors are statistically likely to encounter patients in the emergency room who suffered complications of mifepristone, which is exactly the reasoning rejected in Summers. The rule of law requires that legal principles be applied neutrally. Article III does not apply differently depending on whether the plaintiffs support progressive causes or conservative causes.

Moreover, conceptually, the Fifth Circuit's approach would dramatically expand the law of standing. Any federal rule that could in some way be said to reduce "safety" could be challenged by a sufficiently motivated plaintiff organization. Suppose the National Highway Traffic Safety Administration relaxes some airbag requirement. Under the Fifth Circuit's theory, the American Association of Pro-Car Safety Doctors could sue, on the theory that an unspecified additional number of people will be injured in car accidents and go to the E.R., and some unspecified number of doctor-members will have to treat their injuries, stressing them out.

Read the whole thing.