Supreme Court Denies Red State Effort to Intervene in Mifepristone Case

The Court also rejects a late-filed amicus briefs from the American Bar Association, but accepts one from former FDA Commissioners.

The Supreme Court is scheduled to hear oral argument in FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, the combined cases concerning the Food & Drug Administration's regulation of mifepristone, on March 26.

This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.

The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.

The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.

For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.

Also, here are my prior blog posts about this case and the issues it raises:

• "The Next Abortion Battlegrounds," June 22, 2022;
• "Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
• "AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
• "Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
• "Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
• "The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
• "BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.

Comments

[Area Man]

"Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority."

When was the last time any honest person saw the ABA as apolitical? I know people *claim* it's apolitical; but they do that so they can disingenuously bolster the ABA so that it can engage in political advocacy disguised as apolitical expertise.

[LawTalkingGuy]

Well there is no such thing as an "apolitical" legal organization anyway. It's impossible for such a thing to exist. There are organizations that are better at staying out of day-to-day partisan issues. But any organization that is about "law" is inherently political.

[Dr. Ed 2]

I saw "...an apolitical organization..." and fell out of my chair laughing.

I don't know about the ABA, but most MDs are no longer members of the AMA anymore -- the AMA makes its money selling the Medicad/Medicare billing codes that MDs have to use to get paid.

[David Nieporent]

I don’t know about the ABA,

But that didn't stop you from commenting!

[EscherEnigma]

If you did a survey of Americans, I think you'd find that most people would have no strong opinion of the ABA one way or the other, and a great many would probably default to "yeah, they're apolitical" just on name recognition.

The view that the ABA is terribly liberal is almost certainly a minority one.

[Edmund Burke's Hastings spy]

Utterly wrong.MOST people hate the increasing use of ABA-type groups to say 'Our lawyers will not take on the cases that the legislature has made necessary" as in the Alabama embryos case.

[Drewski]

To be clear, the ABA has never held itself out as apolitical. Adler probably meant "nonpartisan" and misspoke. (And I will agree in advance that the ABA does in fact act in a partisan way, but not to the extreme that some wingnuts here often believe.)

[ReaderY]

I think the primary issue here, and the issue the case should be decided on, is standing. I don’t think there is any. And because I don’t think the plaintiffs have any standing, federal courts have no jurisdiction to decide anything. Accordingly, I don’t think the former FDA commissioners’ expertise will end up being relevant to this case. And I think the Supreme Court would be wise in this case to give a short opinion explaining only the deficiencies in the standing and not saying anything more.

I understand the Supreme Court has to cover every contingency in advance of its decision, however.

Nonetheless, I would have been inclined to enforce the rule against late amicus briefs evenhandedly.

[ReaderY]

I would suggest that the Supreme Court use this case to place limits on, and possibly overrule, the concept of organizational standing articulated in Havens Reality.

The whole issue was dicta in that case as there was a plaintiff who had individual standing. And I think it’s a gross perversion of standing requirements to suggest that a charitable issue-advocacy organization is in any way “forced” to advocate for the issues it was organized specifically to advocate for. Or that it incurs losses of any kind by getting the publicity and fund-raising opportunities that come with filing a lawsuit.

Such an organization has suffered no more actual injury than any ordinary citizen who has strong views about a public issue and feels hurt by a law the citizen perceives to be wrong.

[Dr. Ed 2]

I'm not so sure it is that narrow.

Let's say that there are only three MDs at a small rural hospital that is 2 hours by medflight from any other hospital, and all three are adamantly pro-life.

In a state that is also adamantly pro-life, they should have a reasonable expectation of not having to perform a therapeutic abortion (as opposed to the tubular abortions and such which actually have another name).

So Slutty Suzie gets her mifeprisone via mail but it doesn't work and she goes to said rural hospital and one of these MDs is required to perform an abortion. Or he is facing criminal charges if he doesn't.

[loki13]

Instead of making hypotheticals (and you kind of announce who you are by the way you name the only woman in it), why not actually look at the facts in this case, and why they are germane to the issue of standing?

You litigate the case that you have, not the fevered facts that exist only within your head.

[Noscitur a sociis]

Hey, at least he's not openly calling for and celebrating her death. That's positively classy by Dr. Ed standards.

[EscherEnigma]

Or he is facing criminal charges if he doesn’t.

This is Texas we're talking about. The AG threatened criminal charges if a woman got a life-saving abortion just a month or two ago. I don't think this is a valid concern.

[David Nieporent]

The whole issue was dicta in that case as there was a plaintiff who had individual standing. And I think it’s a gross perversion of standing requirements to suggest that a charitable issue-advocacy organization is in any way “forced” to advocate for the issues it was organized specifically to advocate for. Or that it incurs losses of any kind by getting the publicity and fund-raising opportunities that come with filing a lawsuit.

I agree with your comment, but that does not accurately characterize Havens Realty (though a considerable number of courts have chosen to read it that way). The organization in Havens Realty was not arguing standing based on the fact that it was forced to advocate. It was arguing that its mission was to actually place people in housing, and that was subverted by the practices it was challenging.

[ReaderY]

I understand that lower court rulings have further expanded the Havens Realty doctrine, and it could potentially be clarified and cabined rather than overruled outright. I also agree the standing claims the plaintiffs made in this case go well beyond Havens Realty, so it could certainly be decided with Havens Realty intact.

As I understand it, these plaintiff’s claim is basically that as energency room doctors, they might someday treat a patient injured by mifepristone, and if they did this would take them away from treating patients injured for other reasons, which apparently they’d rather be doing.

I just don’t see how one gets anywhere close to a cognizable standing claim out of this, even if one gets beyond the fact that this is a pure speculative hypothetical and may never happen. (If having to treat such injuries is as likely as they claim, surely they could have found an actual patient with an actual injury somewhere that they could have made a co-plaintiff).

Since when are doctors entitled to choose how they prefer that their patients get injured? In what sense does having another patient come into the clinic needing treatment hurt a doctor?

[Dr. Ed 2]

Can the three red states turn around and file their own suits?

Or pass a law that would enable them to do to big pharma what NY did to Trump?

[Noscitur a sociis]

Hahahaha what?

[Zarniwoop]

Can the three red states turn around and file their own suits?

Yes, they could. But then they wouldn't be in Amarillo, TX in front of Judge Kacsmaryk.

You should read Adam Unikowsky's post on the subject of intervention (recommended by Alder in the OP).

Mr. Unikowsky has an accessible writing style that even you should be able to comprehend.

[loki13]

"Mr. Unikowsky has an accessible writing style that even you should be able to comprehend."

HA HA! Like people actually read the links with legal-like substance.

Besides, it is difficult to get a man to understand something when his entire worldview depends on his not understanding it.

[Zarniwoop]

Point taken. Here's the operative part that even Grampa Ed should be able to decipher:

Usually, would-be plaintiff-intervenors have little reason to care about this doctrine—if the original plaintiffs lack standing, then the would-be intervenors can simply file their own lawsuits. Here, though, the doctrine matters. Idaho, Kansas, and Missouri are free to file their own lawsuits, but they’d have to do so in a jurisdiction where venue is proper—i.e., one that has some connection to their lawsuit. And Idaho, Kansas, and Missouri are located in Idaho, Kansas, and Missouri, respectively. The intervenor-states have zero connection to Amarillo, Texas, where Judge Kacsmaryk sits. And of course, that’s the judge they want. The only way the states can get him is by glomming onto the private plaintiffs’ lawsuit.

[Dr. Ed 2]

Do you honestly believe that we still have "rule of law" in this country?

[loki13]

Largely, yes. The vast majority of my cases (both trial and appellate) deal with routine issues, and are dealt with through the application of regular process and the application of precedent.

There are judges that I disagree with, but still respect. People can have reasonable disagreements about the law, but still respect each other.

However, there are a number of newer judges that I do not have the same respect for, simply because they view their position as one where they are advocating for positions, not applying the law.

[Dr. Ed 2]

My point -- and I understand that law and logic are often inconsistent -- was that if they had the legal right to file their own lawsuit (or perhaps three individual lawsuits) then it would make sense to instead let them join this one so as to save both time and trees.

POLITICALLY they may not want to, but under strict concepts of efficiency, they should.

[loki13]

That's not how things work, at all.

Basic concept - standing. You MUST have it when the lawsuit begins. Period. There are no exceptions to it.

So the whole concept behind this intervention (that they want to intervene in order to establish standing) is literally nonsensical. Putting aside all the other issues regarding timeliness, there is absolutely no reason for the District Court to even consider this motion while the standing issue is being litigated at the Supreme Court, other than ... well, other than this DC Judge doesn't care about little things like "the law," which is something we've already seen.

(The fact that the motion suffers other defects as well is just icing on the cake. If you have practiced in federal court, then this is about as crazy a decision as you'll see from a process standpoint.)

[David Nieporent]

well, other than this DC Judge doesn’t care about little things like “the law,”

I'd have said "district judge" rather than "DC judge" to avoid confusing easily befuddled people like Dr. Ed.

If you have practiced in federal court, then this is about as crazy a decision as you’ll see from a process standpoint.)

It's no crazier than losing one's job being an irreparable harm that justifies an injunction.

[loki13]

"It’s no crazier than losing one’s job being an irreparable harm that justifies an injunction."

Ugh, you had to bring that up. Even today, I wince every single time I think about that case.

[Zarniwoop]

Idaho, Kansas, and Missouri care not one whit about efficiency. They want to be able to salvage Judge Kacsmaryk's untenable merits rulings if the original plaintiffs are kicked out on standing (as they should be). The states are aware - as is pretty much anyone with two brain cells to rub together - that there is probably no other Federal judge as biased against mifepristone and willing to sell out his judicial integrity as Judge Kacsmaryk. That's why the states made a hail mary argument for intervention that goes against applicable 5th Cir case law .. that Judge Kacsmaryk granted.

[David Nieporent]

sell out his judicial integrity

Assumes facts very much not in evidence.

[NOVA Lawyer]

Your point is a good one. There is an absence of evidence he had any such thing to sell out.

[Edmund Burke's Hastings spy]

You seem unaware of the standing hostility (justified too) that this provoked

"BLM proposes to open 22 million acres in Western states to solar development"

These states already have just cause to hate the feds gobbling up their state
"the federal government owns 61.3% of the land area in Alaska, 46.4% of the land area in the 11 contiguous Western states"

[John F. Carr]

They might have had the right to join at the beginning as additional plaintiffs. But who could have guessed then that this crazy lawsuit might work?

[Rev. Arthur L. Kirkland]

.

But who could have guessed then that this crazy lawsuit might work?

Someone familiar with Kacsmaryk?

[loki13]

Anyway, to make a substantive comment.

The worst problem coming out of the 5th Circuit (in terms of the appellate decisions and, of course, whatever you can call some of the District Court rulings) is that complete absence of regular process and the application of regular law.

It's not even so much the results which are terrible; terrible results happen (depending on your P.O.V.). It's that things attorneys take for granted- the "correct" (within reasonable parameters, of course ... people can, and do, argue about edge cases) application of regular process and the correct application of regular precedent, are just being ignored in order to reach preordained results.

Which does real violence to the settled expectations of the litigants. The analysis by Unikowsky is a perfect example of this- regardless of your feelings on the merits (or lack thereof) of the underlying litigation, the decision on the motion to intervene was, and should have been, an incredibly easy one.

And we continue to see this in multiple areas of the law within the 5th now- judges ignoring basic principles of litigation in order to rule however they want to, based upon their prior beliefs. It's ... not great.

[Dr. Ed 2]

As opposed to the "...but, TRUMP" decisions?

[Zarniwoop]

No, that's just you yelling at the clouds about an outcome you don't like.

[loki13]

Look, given you simply have legal retorts of "but Trump," and/or "DRED SCOTT!" as the inevitable spice to your stew of misrepresentations about facts from Massachusetts and/or Maine from the '60s and '70s, I understand that legal reasoning is difficult for you.

But if you actually could read and understand what I wrote, this is not an issue of results- it is an issue of process. In court, you depend on judges (and the appellate courts) to do the basic things in a regular fashion. You can win or lose on the merits, or on issues of law, but when the courts just start screwing around with the procedure to get the results that they want, that's ... that's a real issue.

[John F. Carr]

I find this explanation of the brief's importance unpersuasive:

Further, Former FDA Commissioners’ proposed brief draws on their expertise and provides important information about FDA’s role in monitoring the safety and efficacy of drugs to help inform the Court’s consideration of the merits. Former FDA Commissioners are uniquely positioned to explain the onerous requirements imposed on manufacturers seeking to market new drugs as well as FDA’s nuanced approach to considering New Drug Applications and subsequent modifications to conditions of use. As physicians, Former FDA Commissioners are also qualified to explain why FDA’s rigorous scientific review of mifepristone’s initial approval and subsequent modifications to its conditions of use merit deference. Additionally, the amicus brief of Former FDA Commissioners sets forth the potential catastrophic consequences to public health that would ensue if the Fifth Circuit’s decision were upheld.

Skimming the brief quickly I didn't see anything that the defendants below should not have been expected to argue on their own. After all, the current FDA is a defendant. And catastrophe is largely a factual issue that should have been presented to the District Court. Even then it is only relevant if relief is in the form of an injunction (which should serve the public interest) and not in the form of a legal declaration (which does not consider whether the law being declared is good).

I also think the lawsuit fails on standing and it doesn't matter whether the Former FDA Commissioners are persuasive. But some justices will want to explain, irrelevantly, why it is a catastrophe if their view of the legal question of standing is wrong.

[Bob from Ohio]

"Interestingly enough, the Court rejected the former brief, but accepted the latter. "

I imagine the pro-abortion side was already well represented.

"As of fiscal year 2017, the ABA had 194,000 dues-paying members, constituting approximately 14.4% of American attorneys.[3] In 1979, half of all lawyers in the U.S. were members of the ABA." wikipedia

They went left and lost 70% of their membership. Its just another left-captured group.

[Frank Drackman]

Loved their Red White and Blue Basketball

[John F. Carr]

Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case.

The American Association for the Advancement of Science has gone off track in a similar way. If you read the pages of the flagship journal Science you find a lot of advocacy on political issues from the point of view of left-leaning academics. I don't mean "increase the science budget". I mean abortion and guns.

[Sarcastr0]

1) AAAS Government Relations is nonpartisan to a fault. It's largely a calendaring and science communication utility: https://www.aaas.org/programs/office-government-relations

2) AAAS's members lean quite liberal (though not leftist)

3) To those on the right, sometimes everything not burnishing their priors looks leftist.

4) Science, is quasi-independent from AAAS as an organization...Science does pay the bills for a lot of other AAAS activities, which makes for an interesting dynamic if they are pushing a political agenda. Which could be!

5) I stopped subscribing to science a couple of years ago...bandwidth issues. I guess I prefer to spend my time posting on Internet political forums.

[Bob from Ohio]

"quite liberal (though not leftist)"

Because Commies exist, no liberal can be a leftist. Everyone to the right of Susan Collins gets called "far right" though.

[Sarcastr0]

I do not believe AAAS's membership is a hotbed of communism.

That does not mean I don't think leftists are a thing.

You're so fucking weird.

[Frank Drackman]

Milf-e-prestone kills babies, usually FDA requires a "Black Box" warning for "Outcomes" like that

[Jason Cavanaugh]

Beyond the obvious standing issues, there's also this little tidbit from a few weeks ago...

https://apnews.com/article/abortion-pill-mifepristone-redacted-studies-supreme-court-ebd60519fd44dc69c5ac213580d1c1ba

In a retraction notice, Sage Perspectives said a reader contacted the journal with concerns about the presentation of some of the data, possible “defects” in the selection of the data and whether authors’ affiliations with anti-abortion advocacy organizations present conflicts of interest that should have been disclosed.

Sage said in a statement that it asked two experts to conduct an independent post-publication peer review, which found the conclusions “were invalidated in whole or in part” for several reasons, including problems with the study design and methodology and errors in the analysis of the data.

The studies’ lead author, James Studnicki, said in an emailed statement that the publisher’s actions are a “baseless attack on our scientific research and studies.” Studnicki is a vice president at the Charlotte Lozier Institute.

[ReaderY]

As I’ve said before, this case is a very poor vehicle to try to adjudicate a claim that background federal statutory law disfavors abortion and hence does not support administrative actions tending to expand it. The plaintiffs just don’t have any standing, and as a result this case will not lead to any merits decision or decide anything the parties and advocates think important.

If opponents of abortion want a case that might serve as a more appropriate vehicle for claiming that background federal statutory law does not support current administrative policy on abortion, they might want to focus instead on the Genbiopro v. Sorsaia case, in which a manufacturer of mifepristone is seeking (so far largely unsuccessfully) to overturn West Virginia’s abortion law on grounds federal policy favoring abortion pre-empts it. There is no standing problem in that case.

The stakes in that case are much lower. West Virginia has decided only to defend its laws as not pre-empted, not to try to change federal administrative policy or even significantly challenge Genbiopro’s characterization of it. But opponents of abortion could, if they wanted to, use the case to make an argument that federal law and policy is not as Genbiopro claims it is.

[ReaderY]

The District Court had ruled on West Virginia’s motion to dismiss back in August, mostly favoring West Virginia. It ruled that FDA regulation of abortion drugs is analogous to other federal regulatory schemes that courts have held don’t preempt state bans. Detailed federal regulation of horse slaughter and uranium mining, for example, was held not to preempt state bans on both.

On the one issue where it did not dismiss, West Virginia’s prohibition of prescription by telemedicine, Genbiopro voluntarily dismissed its claim back in November to enable it to appeal the whole case to the 4th Circuit immediately. Its appeal is currently pending.

[ReaderY]

The District Court decision is here:

https://storage.courtlistener.com/recap/gov.uscourts.wvsd.235957/gov.uscourts.wvsd.235957.66.0.pdf

[ReaderY]

The case is now styled Genbiopro v. Raynes.

Kristina Raynes took over from Mark Allen Scorsaia as prosecuting attorney for Putnam County, WV.

Briefing is in process. Genbiopro’s brief has been filed. The response brief is due in April. Various amicus briefs are trickling in.