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.

Comments

[F.D. Wolf]

The district court was wrong. Now, the Court of Appeals was wrong. And, of course, if the Supreme Court doesn't reverse, it will be presumably wrong too. If only we had a country where a consensus of law professors determined what was "right".

The underlying problem is a lazy Congress which simply will not do its job as prescribed by the Constitution. Every time a court decision comes down holding some executive agency has exceeded its authority, a chorus of congressmen loudly complain. Yet it never seems to occur to them to actually introduce a bill to address the issue.

[MollyGodiva]

The FDA was well within its authority to approve this medication.

[Jaypd]

the issue being flagged here is standing. that has nothing to do with anything you're talking about. if you don't understand how law works- maybe don't come here and post like an idiot

[David Jay]

It is all about standing, but in a looser way. The whole Lujan diversion was wrong, and the pendulum has been gradually swinging back. If a person is being destroyed, but can't get to a court, or get a lawyer, what you have is a Catch-22. Unborn persons included.

Lujan and its progeny trap-doored that whole tangle through refined (sophistical) doctrine. This is the moral predicament coming back again. Standing is a made-up doctrine assuming that the Constitution answers the moral problem of harming innocents. It's a facile, empty construct. Don't get too caught up in the abstruse doctrinal nonsense.

[NOVA Lawyer]

Funny, I don't believe any of the standing arguments are based on the very novel assertion you seem to think they asserted which is that fetuses and/or embryos have standing in this case.

[David Jay]

You are correct. I am talking about the underlying implications. I think it is something that will come to the fore in the coming years, that the standing doctrine is largely as much invented as qualified immunity and many other supposedly foundational precepts are. Small fissures, then movement, 5-10 years to discernible shaking.

[JasonT20]

Standing doctrine does have a basis in Article III, even if some people don't like the limits SCOTUS has put on it or the way it works in practice. The judicial power that the Constitution vests in the Supreme Court and of other courts is to resolve "cases" or "controversies" between aggrieved parties, not to offer opinions and order changes in the law whenever they feel like it.

[David Jay]

Yes. But there are many pathways for vicarious action, including things like next friend, parens patriae derivatives, and the like. I would agree some are overused in many cases. I think what you say is true, and yes Lujan and what followed is too restrictive. But how can those who can't speak be considered. Some jump up and down with a doctrinal (or doctrinaire) answer, akin to "by definition, they have no ability and therefore no rights!" But there are good reasons to think more of moral philosophy and think what should be, rather than just what is in the current construct. And to think creatively about the legal doctrine in that context.

[JasonT20]

If a person is being destroyed, but can’t get to a court, or get a lawyer, what you have is a Catch-22. Unborn persons included.

Who do you imagine an "unborn person" would be taking to court to argue for its life? Not the FDA, not the drug manufacturer, or the doctor prescribing these medications or performing an abortion procedure. It would have to be taking the pregnant woman to court. It would have to argue that it has a right to that woman's body, regardless of her own will or the risks and burdens pregnancy would require of her.

I'm really curious to know if there are any other circumstances when you think one person can legally require another to take on physical risks and burdens, including the risk of death, for their benefit.

[David Jay]

Definitely. A lot of the tone here is conflict-oriented, and I am not in conflict with you. I can think, quickly, of things like bailments, fiduciary duties, and -- bugbear that it is -- parens patriae in the family law context (abused ad nauseam in family law context as to the elusive/manipulable groupthink "best interests"). Each of which, loosely speaking (rigidity is good at times, but creativity can be better at some levels), is basically a call on another to be a resource.

Assume that the insane (in my view) manipulation of what parents need to do and say by the remote control mechanism of "best interests" is baseline valid in core cases of bodily integrity for the kids (as opposed to affirming "trans consciousness", etc.). If so, why are unborn humans any less deserving? I get that it is convention now (an d was with the prior smokescreen of "viability"), but it's clearly not so at the day of birth or a month before. Why not when they are recognizable as humans, albeit stuck in the womb ... eyes, ears, fingers, CNS, etc.?

[Bob from Ohio]

"consensus of law professors"

Unikowsky isn't even a professor, just a Big Law lawyer.

[SimonP]

He probably knows the law more intimately than anyone posting regularly on the VC.

[Rev. Arthur L. Kirkland]

Big Law lawyer.

Better than a little law lawyer.

Or a backwater lawyer.

[Zarniwoop]

Yes, "just" a BigLaw lawyer ... he's in the Supreme Ct. Bar and practices there, from what I understand.

also, "just" a former Supreme Court law clerk ... hint: it's one of those "best and brightest" kind of jobs, even if you disagree with them on issues.

extra hint: law clerk to Justice Scalia .. have you heard of him? Or do you think Justice Scalia was some liberal law school prof?

[Moderation4ever]

Agree here that a lazy Congress relying on courts to do their job.

[Jaypd]

I was expecting this post hours ago I've been on the edge of my seat wondering what the verdict would be on VC. I kinda figured the standing issue must still be there since the decision didn't get completely reversed.

[Zarniwoop]

I'm shocked, shocked! to find that Josh Blackmun is cowering in silence here.

[Yogis_dad]

Approvals are routinely overturned because of procedural failures. The procedural failure took place almost 20 years ago. Progressives would not cavil at invoking this failure to stop distribution of the drug if it offended their sensibilities.

[Darwinnie]

Weak reasoning. Totally speculative. I think it’s a lazy argument to say “the other side would do X if the shoe was on the other foot.” Come on, man.

[Krayt]

Weak? This kind of thing is all we see.

We just left four years of using the courts to stop every initiative of the executive branch. That side, having been burned, now adopts it wholesale.

The left, screetching Democracy, comes up with every manner of clever way to work around it. The Republicans, slow to learn, eventually learn the tactic themselves. Then the left says, “Oh no! They are using our best stuff…against us!”

Shocked…shocked!

If you don't like courts overturning a 20 year old regulation on a technicality, look in the mirror.

Hehe, I just watched Forbidden Planet, that 1950s sci fi with Leslie Nielsen, where the magical sci-fi device creates nightmares from the subconscious Id.

Yes, look in the mirror, and fear the Krell Device monster your own Id created. It destroys everyone.

[Magister]

What 20 year old decision that progressives attacked in this way are you thinking of?

[Jason Cavanaugh]

"If you don’t like courts overturning a 20 year old regulation on a technicality, look in the mirror."

If you don't like looking like an idiot, you should actually read the various takedowns of the piss-poor rulings you're celebrating, and instead ask yourself whether you're the kind of person who thinks the law is supposed to actually matter.

It would seem that you're nothing but a partisan twit, since you don't seem to care that the entire opinion was pre-determined, and that the Judge's bias bled through every paragraph he wrote.

It wasn't overturned on a 'technicality,' unless you want to say that, technically, the Judge is a piece of shit.

[Nige]

'Yes, look in the mirror, and fear the Krell Device monster your own Id created. It destroys everyone.'

'We're fucking awful but it's your fault' is a heckuva intellectual and moral foundation for a political philosophy.

[Noscitur a sociis]

Victory by hypothetical hypocrisy.

[dwb68]

"If ER doctors are stressed out from seeing “torrential bleeding,” perhaps they should have chosen a different job, rather than filing lawsuits seeking to ban all women from taking mifepristone."

^^this.

[Dr. Ed 2]

Or simply let them die....

[Zarniwoop]

WHOOSH.

FFS, folks who think "I'll only save the people with the right religion/skin tone/political beliefs/national origin/beliefs I agree with" ... are really, really bad people have in an ER.

But sure, someone who stylizes themselves as a "Dr" thinks the right answer is "just let them die". Laughable and disgusting.

[Nige]

I genuinely cannot fathom what point you think you're making here.

[Dr. Ed 2]

Former Maine Governor Paul LePage once proposed something that was widely misunderstood (and raised some logistical issues) but presented a very serious question of if libertarians actually believe in libertarian values.

He proposed that EMS only administer Narcan *once* to someone, and unless (and until) the person reimbersed the state for the Narcan (which isn't cheap), it wouldn't be administered a second time. The druggie would instead be left to die.

Such a policy is reprehensible on multiple levels, particularly in a state where much of the EMS is unpaid volunteers, but it raises an underlying issue, similar to RU-486. If you want to take the approach that jailing heroin/fentanyl users is a violation of civil liberties, then the flip side of that is that the state shouldn't have to provide Narcan on a daily basis (which often is the case).

My point here is that Texas has the right to say "no abortions" and to expect it to be honored -- if Texas is forced to deal with people taking RU-486, then it could say "you're on your own" and let them bleed to death. And tell people it will.

[OtisAH]

It’s possible you’re not actually a monster, “doctor.” It’s possible you’re a kind person with family and friends who love and respect you. It’s possible you love puppies and dandelions and walks on the beach. In a world of infinite possibility, anything is possible.

[Noscitur a sociis]

If you want to take the approach that jailing heroin/fentanyl users is a violation of civil liberties, then the flip side of that is that the state shouldn’t have to provide Narcan on a daily basis (which often is the case).

In what conceivable way does your second premise follow from your first?

[Nige]

So just for this one case you're calling for red-in-tooth-and-nail libertarianism. Do you pick 'n' mix your politics for everything else, too, to maximise the dystopian outcome for specifically targeted groups out of pettiness and spite?

People take the drug for non-abortion-related reasons too.

[Absaroka]

"My point here is that Texas has the right to say “no abortions” and to expect it to be honored — if Texas is forced to deal with people taking RU-486, then it could say “you’re on your own” and let them bleed to death."

I'm going to hate myself in the morning for taking one of your posts seriously, but...

1)The state can, morally, decide what conditions it will or won't pay for. It can't decide, morally, to prohibit other people from providing life saving care (paid or free).

2)Hospitals generally aren't state agencies, so qualify as 'other people'.

3)We have a pretty good justification for saving lives first and worrying about getting paid later. I'll ignore the altruistic reasons and go on to the selfish one: you might get mugged someday and arrive at the hospital bleeding profusely and without your wallet. Do you really want your gurney shunted to the side while the hospital tries to ID you to find out whether you can pay?

4)The 'I'll let people die if I don't approve of the activity they were engaging in' thing gets out of hand pretty quick. Do you get left on the side of the road if you hit a deer while speeding? If you had a hunting accident? Maybe you had a couple of beers at the family picnic and tripped on the stairs? Kids who sneaked into the pool after hours?

[dwb68]

"The FDA’s brief points to overwhelming evidence from the record, to which the Fifth Circuit was required to defer under basic principles of administrative law, regarding mifepristone’s safety. After summarizing all that evidence, the FDA then sensibly says that the mere fact that there are adverse events isn’t a sufficient reason to ban mifepristone, because after all, ibuprofen results in adverse events too. In response, the Fifth Circuit ignores all of the record evidence and reasoning from the FDA. The court doesn’t try to distinguish it, or analyze the FDA’s reasoning. It just treats all of the FDA’s reasoning as though it does not exist, and then summarizes the government’s argument as “mifepristone is the same thing as ibuprofen,” to which it offers the barbed rejoinder that mifepristone is different from ibuprofen"

Conservatives should be careful what they wish for. This mifesprone debacle may resurrect some version of Chevron deference, which conservatives have come to loathe.

[Krayt]

Conservatives should be scared of opening the can of worms liberals opened on them! We’re on the 20th exchange of tit for tat for that, it’s a little bit late to start worrying about that now.

The theory behind standing and case-or-controversy is so government cannot be tied up in every little thing by every politically motivated guy with a lawyer. Yet we just came off 4 solid years fo finding ways to do so for every single initiative of the executive branch.

You, rightly, laugh at doctors being stressed at horror cases in the ER from this drug, then sleep serenly when a university gets standing because they might lose a few dollars on a student who didn’t get into the country, which, ironically, actually has less to do directly with the controversy than the drug ER issue.

[Nige]

The horror cases they imagine they might see if the over-twenty-years-in-use drug wasn't safe.

[ReaderY]

Chevron has nothing to do with this aspect of the case. Chevron is about whether to defer to administrative agencies on questions of law. But whether a drug is safe or or not is a question of fact, not law. And it involves kinds of facts and kinds of evidence within the FDA’s particular specialized expertise.

Factual questions of this nature get a separate standard that’s far more deferential than Chevron deference. It’s codified directly in the APA. It is a direct Congressional command, not a judge-made doctrine like Chevron deference. Courts have no authority to change or ignore it.

The statutory standard is that courts must defer to agency fact-finding as long as it is supported by “substantial evidence.” And the evidence that the FDA used in its decisions here was not just substantial but considerable.

[not guilty]

The Fifth Circuit's order owes more to Lewis Carroll than to sound jurisprudence. Like the White Queen, these jurists can believe six impossible things before breakfast.

[not guilty]

One of the commenters on Mr. Unikowsky's post identified an Eleventh Circuit case, decided today, which rejects a similar theory of organizational standing. https://media.ca11.uscourts.gov/opinions/pub/files/202113657.pdf

[Zarniwoop]

William Pryor is no lib-y-rul, that's for sure.

And this is what the 5th Cir. opinion regarding standing should have looked like, were it not for the desperate, fanatic attempt to reach the merits because "abortion is bad, m'kay".

[Moderation4ever]

Would the idea of standing put forth in this case allow ER doctors to sue when gun laws are loosened?

[dwb68]

yes.

Eventually progressives will figure this out and send organic flowers and amicus briefs.

[Social Justice is neither]

The cult of Moloch is throwing a hussy fit so it cannot be all bad.

[Rev. Arthur L. Kirkland]

You expect bringing childish superstition to reasoned debate is likely to be persuasive (beyond the most gullible, ignorant audiences)?

[John F. Carr]

He used the same example I thought of -- traffic safety regulations could affect the number of people going to see doctors. And a change to traffic rules may well be seen by different people as producing opposite changes to numbers traffic injuries, but that's related to merits more than standing.

About "The FDA’s brief points to overwhelming evidence from the record, to which the Fifth Circuit was required to defer under basic principles of administrative law, regarding mifepristone’s safety." The courts are required by statute to defer to the agency on the merits, but standing is a constitutional rule.

At least the Fifth Circuit turned down the volume of the liberals losing their minds over the District Court decision so we can see something else in the news. Given the drug's availability under pre-2016 rules I'm not sure the Supreme Court will be eager to step in here on an emergency basis. An order to dismiss for lack of standing would be justifiable, but will it have five votes as a "shadow docket" action? Three liberals plus Roberts. Who is the fifth?

[not guilty]

Peter Finley Dunne's Mr. Dooley famously remarked, "No matter whether the constitution follows the flag or not, the Supreme Court follows the election returns." Restricting abortion rights has become a political albatross for Republicans since Dobbs. A SCOTUS ruling that these plaintiffs lack standing may be an attractive way to punt further restrictions past the next election.

[Krayt]

I am upset at the recent abortion ruling. Yet I am not naive enough to think it is an albatross. And that is the problem.

Control over laws is needed by both sides, because certain percentages of the population begin to imagine metaphysical naughtiness in outlawed things, leading it to be more popular to outlaw, not less, as time goes by.

We love democracy. Until we don't.

[not guilty]

In The Rime of the Ancient Mariner, the albatross was seen as a good omen, until the sailor killed it and his mates hung the carcass about his neck.

Republican culture warriors thought that returning abortion rights to the political branches would bring them good fortune. Justices Thomas, Alito, Gorsuch, Kavanaugh and Bear It accommodated them, overruling Roe v. Wade and Planned Parenthood v. Casey even though Mississippi's petition for certiorari did not ask for that relief. That, however, has proven to be a political loser. Like Israel in the book of Hosea, Republicans have sown the wind and are now reaping the whirlwind.

[Zarniwoop]

This is probably one of the most astute comments I've seen in this entire kerfluffle. And counting noses:

Assume that Kagan, Sotomayor, Jackson are against the TX decision (easy, slam dunk)

I'll put Robert in with them, on the basis of both "ball and strikes" role, and institution protection.

Then you only need to peel off one other - and there are options!
Barrett: admin law expert --> appeal to that, despite strident Catholicism.
Kavanaugh: already muttered about returning to states, might not be willing to go all in on religious zealotry angle.
Gorsuch: actually pretty reasonable on matter of law, a lot of the time.

And then you're in the ones I peg for enjoinging the FDA:

Alito: he's in "gov't is always right" camp ... usually, unless he doesn't like the action in Q. But he might be smart enough to consider the precedent.

Thomas: I can't see him coming up with anything remotely resembling his legal principles, but any further analysis would get into the weirdness of him support his nazi-loving patron. Because ... conservatism? ... trips to Indonesia? ... Ginni's fingers in the grift machine? I dunno.

[Patrick Henry, the 2nd]

"Restricting abortion rights has become a political albatross for Republicans since Dobbs."
That's news to the all the governors who won office after banning abortion!

[Rev. Arthur L. Kirkland]

This particular litigation -- and the general dispute (civil litigation, prosecutions, legislation, executive action, especially in less advanced states) concerning abortion -- could constitute a handy step toward enlargement of the Supreme Court.

Would two new justices be enough, or should four be added?

[hobie]

Might be a vacancy soon…https://www.propublica.org/article/clarence-thomas-harlan-crow-real-estate-scotus

For the rubes here...this is a new allegation

[Zarniwoop]

Thomas won't resign, because then he'd lose the money and the power and grift. His rich and powerful "friends" would be former friends.

Thomas won't get impeached, because the GOP will prioritize denying Biden the appointment over anything Thomas does. He's probably better able to shoot a person on 5th Avenue in daylight & on camera than Trump at this point.

Props to ProPublica's excellent reporting. But will the GOP have the courage of their alleged convictions? That's an easy answer.

[Rev. Arthur L. Kirkland]

Why not disbar and prosecute him?

[Krayt]

As with Trump before him, and Clinton before him, y’all just wanna git ‘im for political reasons.

Which is exactly why filching through the papers of the opposition is supposed to be a no no.

[hobie]

Why Krayt, if conservatism had any media outlets at all with journalists, y’all could do your own filching. But ya don’t…do ya? Have them...you know...journalists. SMH

[Zarniwoop]

Because “disbarment” and “prosecution” won’t remove him from the S.Ct.

Look RevAK, I’m not disagreeing with you that he’s a massive cancer on the judiciary. But the options to redress that are 1) resignation and 2) impeachment. Odds: 1) zero while a (D) pres is in office, and 2) slightly-more-than-zero-but-still-too-damn-low.

[Dr. Ed 2]

Think the optics here going into 2024 -- GOP asking Black *men* what 50 years of supporting the Dems have gotten them, while the Dems try to remove the only Black man on the court?!?

[Nige]

How is that worse than the optics of corruption?

[Sarcastr0]

Ed is here to explain the thinking of black men for us!

[ReaderY]

A small quibble with Professor Kerr:

While an American Association of Pro Car-Safety Doctors might well oppose a relaxation of airbag rules (even an American Association of Amateur Car-Safety Doctors might do that), placing the hyphen differently indicates a very different set of priorities. Ones imagines that for an American Association of Pro-Car Safety Doctors, their support for cars would take precedence over any concerns they might have in their day jobs as safety doctors.

Otherwise completely agree. There was no standing here. And without standing federal courts have no constitutional authority to make legal rulings or issue injunctions.

[Sarcastr0]

I have yet to see anyone on here actually defend this opinion.

A hypothetical double standard, an argument we should revector standing.

No one thinks this is a defendable opinion.

Just some people don’t care about that. Note who those people are because they're nihilists and not really here to think.

[Sarcastr0]

Dr. Ed doesn't count.

[Magister]

He managed to count up to 2, as evidenced by "Dr. Ed 2", but maybe somebody helped him with that.

[Krayt]

I don’t defend it. I mock it as the inevitable result of decades of political hackery on both sides, each one-upping the previous abuse of power by the other.

And here we are.

[Sarcastr0]

Nihilism.

Easier than thinking, I suppose.

[BrotherMovesOn]

I've been reading Krayt for years. I too wish he will find a path to some optimism.
But I wouldn't call him a nihilist.

[Sarcastr0]

He won't take a position, but he will laugh.

Dunno what else to call it.

[Patrick Henry, the 2nd]

It's not hard. Killing babies violates their due process, the FDA process violates the Constitution, and standing violates everyones due process.

[Lee Moore]

Conceptually, the Fifth Circuit’s analysis is irreconcilable with Summers v. Earth Island Institute, 555 U.S. 488 (2009), which, like the district court, the Fifth Circuit does not cite.

Seems odd, if it's relevant and the government argued that it was precedent. Did they ?

[Zarniwoop]

The FDA argued Summers front and center in their standing argument at pp. 4-5 of reply brief:

In Summers v. Earth Island Institute, 555 U.S. 488 (2009), an environmental association challenged regulations facilitating fire-rehabilitation and timber-salvage projects. At least one of the association’s members had been harmed by a past timber-salvage project, and the association claimed that its members would be harmed by projects in the future. Id. at 495. The Court held, however, that past harm “does not suffice” to show standing in part “because it relates to past injury rather than imminent future injury that is sought to be enjoined.” Id. at 495-96. So too here: Plaintiffs have not identified any particular physician who faces “certainly impending” rather than “possible” future injury sufficient to show injury-in-fact. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).

https://storage.courtlistener.com/recap/gov.uscourts.ca5.213145/gov.uscourts.ca5.213145.137.0_8.pdf

[hobie]

In Summers it looks like Thomas stopped picking his teeth long enough to concur. So let's see how long his stare decisis lasts on his own ruling.

"Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined."

[OtisAH]

I think he’ll have no problem ruling the opposite this time. Besides the fact the case aligns perfectly with his and his wife’s ideological positions, he can also lean on how mean liberals are being about his billionaire buddy.

[Zarniwoop]

[Zarniwoop]

Of all the Justices to watch on this, I'm most curious about Barrett. Will she follow her professional career expertise on admin law, or jettison it all because "abortion bad"?

Pace your bets, folks! I'm only able to offer even odds, I think it's a geniune toss-up.

[Rev. Arthur L. Kirkland]

Handmaiden Barbie?* Her course has been foretold.

* some readers may object to the term Handmaiden Barbie; they should substitute Dogma Barbie

[Zarniwoop]

So what's your bet? I'd take a tasty beverage that Handmaiden Barbie (I like it, props) will still have enough admin law qualms about the D.Ct. and the 5th Cir. rulings to stay the entire injunction for now.

[Dr. Ed 2]

I don't know how they reached the conclusion they did, but it is the RIGHT decision here -- no mailed pills or Zoom visits, and you gotta go back to see the MD afterwards to make sure there aren't any baby parts left inside you to decompose (and kill you).

[Zarniwoop]

Let me sum up the problem: your personal idiosyncratic beliefs - and that's all they are, beliefs - concerning what is [morally] RIGHT is orthogonal to legally correct.

You want to push your moral views? Get the votes ... that you don't have, because ~2/3 of America disagrees.

Or just admit you hate democracy, and move to Russia.

[Krayt]

I am fine with the original abortion ruling, as finding new rights is in accordance with principles of freedom.

But that is freedom over democracy. It is odd the left conflates that with democracy itself.

No, you are overturning democracy, which said to outlaw abortion, in favor of freedom, which overrides even democracy.

This is a good thing, but the left’s mind cannot grasp it as democracy uber alles is their mantra as, winning an election, they look wistfully to the infinite powers of parliaments in Europe. Democracy justifies all government power. Except when it doesn’t.

Wait, we might say therefore that we love democracy!

Until we don’t.

[Zarniwoop]

Janitor Ed makes neither an appeal to democracy (it’s currently against him, but that can of course change with the winds of time) OR freedom writ large. Only his personal beliefs. Which he’s entitled to. And are orthogonal to legal rules, including Constitutional ones like standing.

Also, I honestly can’t parse what you’re actually trying to argue. Can you rephrase in a way that makes even a small amount of sense?

Do be clear if you’re objecting to 200+ years of constitutional rules about standing, though. Otherwise, go hit that pipe again.

[BrotherMovesOn]

Please excuse me if I'm wrong but you seem relatively new here (enjoy your federal court practice takes). What you will soon realize it that Dr. Ed is orthogonal to reality.

[Zarniwoop]

Been reading the VC since law school in the early-mid aughts, way before Janitor Ed. I liked the pre-Wash Post site, but, well, progress?

Agree about the orthogonal to reality comment, that’s been clear for quite a while.

[Sarcastr0]

the left’s mind cannot grasp it as democracy uber alles is their mantra

No, the populists are all on the right.

YOUR preferred rights may not be what the left sees as liberty, but the left has plenty of rights they believe trump democracy.

[Zarniwoop]

And of course, you do acknowledge that "leaving baby parts inside a pregnant woman who has suffered a miscarriage, causing sepsis, because the medically indicated treatment of mifepristone is forbidden by anti-choice zealots who want to sue anyone within an arm's length of anything that might have the whiff of abortion" is one of the problems? Right? Right?

Ope, why would we expect a janitor to know about that. Sorry, my bad.

[Dr. Ed 2]

OK, this one I'm going to respond to:
"...“leaving baby parts inside a pregnant woman who has suffered a miscarriage, causing sepsis, because the medically indicated treatment of mifepristone is forbidden by anti-choice zealots..."

This is one of two possible situations, and in either case the anti-life zealots are being reprehensibly irresponsible.

IF mifepristone is the preferred medical treatment for a miscarriage, the medical profession is bordering on criminal negligence in not mentioning this. However, if it is not (and I personally know women who had miscarriages in the '90s, i.e. before mifepristone), this claim is then bordering on criminal irresponsiblity.

I am sick and tired of the anti-life fanatics (who have never read Locke) trying to paint us as bloodthirsty when it is they who wish to kill. Life, liberty, & property are God-given rights which God can take away -- that's what a miscarriage is.

And the anti-life zealots might want to reflect on the fact that they are the reason for the statutory language they don't like -- it wouldn't be necessary if they honored the intent of the statutes.

[Zarniwoop]

IF mifepristone is the preferred medical treatment for a miscarriage, the medical profession is bordering on criminal negligence in not mentioning this.

It’s a treatment for miscarriages, but of course not all medical scenarios are identical.

The reality-based medical profession is arguing this:

The most effective treatment option for medication management of early pregnancy loss includes mifepristone taken in combination with misoprostol. For successful management of early pregnancy loss, mifepristone followed by treatment with misoprostol is over 83% effective and results in complications requiring blood transfusion in only 2% of women. A stay of the approval of mifepristone would curtail the availability of an evidence-based treatment that is the safest and best option for many patients.

https://storage.courtlistener.com/recap/gov.uscourts.ca5.213145/gov.uscourts.ca5.213145.70.2.pdf

And your experience in the 90s is irrelevant. Just because you got your leg sawed off with whiskey and a leather strap for pain management doesn’t mean modern painkillers are unnecessary.

[David Nieporent]

Dr. Ed doesn't know the facts or the law, or even what the opinion said, but he knows it was right.

[Dr. Ed 2]

Critical Legal Theory cares little about facts and less the law.

[Sarcastr0]

Are you a critical legal theorist? Or just lazy and outcome oriented?

[Zarniwoop]

I think the right description is “Critical Ed Theory”, meaning whatever he pulls from his posterior orifice.

[Nige]

So mote it be.

[Paul Alan Levy]

Lying about the record. Ignoring controlling precedent that conflicts with what the majority wants to do.

Has Dick Posner come back to write opinions, now on the Fifth Circuit?

[Variant]

As I understand it the FDA approved a new variation of the drug based on studies for a different, older drug. If this is a violation of federal law, who has standing to sue? If the answer is no one - something is not right.

Maybe it would be a prospective patient who is injured by the drug?

[Patrick Henry, the 2nd]

No here's the best takeaway:

"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"

GOOD! Standing is used by courts to get out of doing their job. It's a bad policy and must be done away with. This is a great start. Address the arguments on the merits, not some stupid legal argument that gets lawyers hard.