Alliance for Hippocratic Medicine On Remand

"But the Government switched positions before the Supreme Court."

Last week I wrote about the Fifth Circuit's decision in United States v. Rahimi, on remand from the Supreme Court. The panel explained that the Supreme Court "modified" Bruen. Though the Supreme Court reversed the Fifth Circuit, in candor, the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time.

Yesterday, the Fifth Circuit decided another case on remand from the Supreme Court: Alliance for Hippocratic Medicine v. FDA. The panel remanded the case back to the district court. I know this is another case that is scored as a reversal for the Fifth Circuit. But here the Solicitor General altered the government's position, so the Supreme Court resolved a different dispute than the one faced by the Fifth Circuit. Specifically, SG Prelogar made very specific representations in AHM, as well as in Moyle, that federal conscience law would protect doctors. And with those concessions, the Court unanimously reversed. I wrote about Prelogar's switch in time that saved nine here.

Judge Ho wrote a concurrence which explained, in some detail, how the case changed on appeal.

First, Ho explained that the Fifth Circuit faithfully applied Supreme Court precedent to the case, as it existed at the time:

That's exactly what happened here. Both the district court and this court applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit. We all agreed that they do. No member of this court disagreed—not on the motions panel, the merits panel, or the en banc court.

Second, Ho demonstrates that the Court's decision was premised on the Solicitor General's flipped position:

The Court reversed, but only because, "as the Government explains, federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences." Id. (emphasis added). There's a simple reason why our court—unlike the Supreme Court— was uncomfortable trusting federal conscience laws to protect doctors: The Government has taken precisely the opposite position on federal conscience laws in other cases and in other courts—including ours.

In the Fifth Circuit, and other courts, the government vigorously argued that conscience laws would not exempt doctors from offering abortion care:

In our court, the Government insisted that federal law "requires doctors to offer abortion care to individuals when that care is necessary stabilizing treatment for an emergency medical condition." Brief for Appellants, Texas v. Becerra, 2023 WL 3345254, *25 (5th Cir. 2023) (emphasis added). "When pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care." Id. at *27 (emphasis added). "[P]ermitting physicians to refuse to provide care that they deemed 'medically or ethically inappropriate' directly conflicted with EMTALA's stabilization requirement." Id. at *26 (citing In re Baby K, 16 F.3d 590, 597 (4th Cir. 1994)).

But before the Supreme Court, SG Prelogar did a 180.

But the Government switched positions before the Supreme Court. It "disclaimed that reading of EMTALA." Alliance, 602 U.S. at 389 (emphasis added). It now believes that "EMTALA does not 'override an individual's doctor's conscience objections.'" Id. (emphasis added). It now agrees that "'[h]ospitals must accommodate doctors'" who have "conscience objections." Id. Moreover, a representation by the Solicitor General to the Supreme Court carries greater weight than a statement by Government counsel before the inferior courts.

You cannot fault a lower court for relying on the argument the government presented. The Fifth Circuit cannot anticipate how the Biden Administration would try to salvage the case before the Supreme Court. All of these lists of reversal rates truly fail to consider how the Fifth Circuit is treated on appeal.

Third, Judge Ho explains that the government also reversed its position in Moyle (which I discussed here):

So the Court reversed because the Government reversed.[FN1]

[FN1] The Government also reversed itself in Moyle v. United States, 603 U.S. _ (2024). In the district court, the Government insisted that EMTALA "requires a physician to offer an abortion." Reply Memorandum in Support of Motion for a Preliminary Injunction at 6, United States v. Idaho, 623 F. Supp. 3d 1096 (D. Idaho 2022) (No: 1:22-cv-00329). But the Government again switched positions before the Supreme Court. See Brief for the Respondent, Moyle v. United States, 2024 WL 1298046, *17 (2024) ("EMTALA's stabilization obligation is imposed on 'hospitals,' not on 'individual providers'") (quotations omitted).

Fourth, there is another ground to criticize the majority opinion. The Court failed to consider one theory of standing on which Judge Ho relied: aesthetic injury standing.

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

This argument truly made people lose their minds. But it was an argument in favor of jurisdiction, and it was grounded in fairly well-established environmental law.

Judge Ho explains that the AHM Court favorably cited several decisions about aesthetic injury in the context of environment law, but ignored the aesthetic injury argument.

Second, the Court also reaffirmed its longstanding directive to inferior courts to address novel questions of standing by analogizing the Court's precedents in other areas of the law—including environmental law.

Before the Court dismisses a case for lack of jurisdiction, it has the responsibility to at least consider all the grounds for standing expressed below. And this argument was simply ignored by Justice Kavanaugh's majority opinion, and Justice Thomas as well.

***

I know it is en vogue to criticize Judge Ho--I've lost count of the number of "profiles" about him by the media. But Judge Ho is one of the few members of the federal judiciary who is willing to point out where the Supreme Court errs. It is true he is an inferior court judge, but inferiority does not demand subordination. Lower court judges can, and should, identify Supreme Court precedents that have been eroded by more recent decisions. Lower court judges can, and should, identify where the Supreme Court has quietly eroded its own decisions. And lower court judges can, and should, point out when the Supreme Court failed to consider all of the claims that were properly presented, including jurisdictional arguments. These three responsibilities are especially apt when the Supreme Court purports to reverse a lower court, which in fact faithfully applied precedent as it existed at the time.

We're still not quite done with remands. Let's see what the Fifth Circuit panel does on remand in NetChoice v. Paxton. The Supreme Court's "facial" analysis in that decision left much to be desired.

Comments

[Daddyhill]

What's the worst that can happen? The original case filed by AHP returns to the court having original jurisdiction, where all sides will have the opportunity to re-argue the case. Perhaps all sides will be given the opportunity to revise their original arguments; perhaps not. Whatever the outcome in that court, the case will probably be appealed to the next court up the food chain. The outcome there would probably be appealed to the SCOTUS. Perhaps all sides will have the opportunity to present oral arguments based on the decision as it is actually being appealed to the SCOTUS; perhaps not. The high court will rule, but if it rules to remand the case back again this could go on forever.

That would be a disastrous outcome and perhaps the worst that could happen. On the other hand, if the case goes up through the food chain again, there will be thousands or even millions of dollars and a lot of time spent on a case that shouldn't have been filed in the first place. And why all this remanding? Apparently because the SCOTUS the justices screwed up by not ruling on the case as it was appealed from the Fifth, but rather on the case as redefined by the government. It seems to me as well that the federal judiciary isn't very good at inter-court communications. These people apparently don't talk to each other about the law, despite the large number of federal judges affiliated with the FedSoc one way or another.

Finally, I could do without a lecture from a federal judge about the joys of pregnancy and childbirth. Does he have children himself, or is he parroting language from the AHP or the SBA? Does he know that 15-20% of all conceptions become spontaneous abortions before 20 weeks, the majority of these before the woman is aware of being pregnant? Most of those early pregnancy losses occur because of lethal genetic problems. Can those unfortunate parents also sustain an aesthetic injury? What about the parents of stillborn infants? Personally, I think that a stillbirth (I almost was one) is a much more profound tragedy than early pregnancy loss or elective abortion. Can the judge wax equally ecstatic about pregnancies and childbirths that fail for any reason other than elective abortion? Since it's Texas (the SBC Vatican) I'm guessing he could not.

[Frank Drackman]

Kermitt Gosnell should have just done his After-Birth Abortions (You know, the ones that never happen) in a Medicare-funded hospital, he'd be a Hero!

[apedad]

" . . . the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time."

Who's faulting the Fifth Circuit for applying precedent?

(checks link) It comes from a blog posted by Prof. Blackman where he provides a quote from . . . Prof. Blackman.

[Dr. Ed 2]

"("EMTALA's stabilization obligation is imposed on 'hospitals,' not on 'individual providers'") "

How is a hospital to do this without providers willing to do so?

Or will hospitals be forced to have a litmus test for employment?

[John F. Carr]

If courts decide that accepting federal funds does not authorize a private company to violate state law, there will be a standoff:

"Abort that baby or we will cut off your funds and you will die."
"You wouldn't dare cut off our funds, because then we will be free and you will die."

There are hospitals that couldn't survive without federal funds. There are also bureaucrats who couldn't survive without being able to disburse federal funds.

[Dr. Ed 2]

Well, are hospitals (licensed by the state) even private companies?

And while there are hospitals that couldn't survive without federal funds, there are NONE that could survive without a valid state license. Actually a whole bunch of state licenses -- and would a Federal regulation preclude a state criminal prosecution?

Or the loss of a state medical license?

And some hospitals would actually prefer not to receive Federal funds -- they lose money on Medicaid/Medicare reimbursements and charity care.

[John F. Carr]

Most hospitals are private companies, typically nonprofit. Some hospitals are government owned, including specialty facilities like VA Boston and Bridgewater State Hospital in my area but also including typical hospitals in other parts of the country.

[Brett Bellmore]

"The Court failed to consider one theory of standing on which Judge Ho relied: aesthetic injury standing."

Seriously, "aesthetic injury standing"? It sounds like a joke, It is a joke. The Court properly failed to consider it. If they were going to consider it, what would they have said?

Likely, that there was no such thing, so please don't try pulling that again.

[Michael P]

The DC Circuits has repeatedly held that standing over "aesthetic injury" is sufficient to grant standing.

Relying on our decision in Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (en banc), we explained that “an injury in fact can be found when a defendant adversely affects a plaintiff’s enjoyment of flora or fauna, which the plaintiff wishes to enjoy again upon the cessation of the defendant’s actions,” and concluded that “the injury Rider allegedly suffers from the mistreatment of the elephants to which he became emotionally attached” could constitute such an injury to his “aesthetic” sense. ASPCA, 317 F.3d at 336.

https://www.cadc.uscourts.gov/internet/opinions.nsf/FE85D42ED8A9223185257937004EDC8B/$file/10-7007-1338482.pdf

[Michael Ejercito]

Interesting.

[Bwaaah]

"the injury Rider allegedly suffers from the mistreatment of the elephants to which he became emotionally attached"

grrrrrrrrr

And what of the ongoing trauma, the harms, I suffer from the interminable stupidity of humanity? What standing, what recourse, what compensation am I to be granted?

grrrrrrrrrrrrrrrrrr

[loki13]

I'm not a fan of aesthetic injury.

That said, it is confined to environmental cases- where people are like, "I go hiking there. I enjoy the environment. If X happens, then when I go hiking the next time, it will suck. I have standing to oppose government action X." Which, pace Lujan ... whatever. I prefer that any constitutional aesthetic standing also require a specific statutory hook, in which case no harm, no foul.

But the chutzpah of Ho is that (1) ranting that the Court didn't consider an argument made by one person, in a concurrence. And (2) that this was a valid use. NO. There are plenty of on-point decision on standing in this arena. What you aren't supposed to do is to transpose standing from one area of the law to a completely different fact pattern and different area of the law to gin up standing. Because, again, there are established rules regarding standing for this type of case.

Bad troll trolls badly.

[Jason Cavanaugh]

It also still requires individual harm which none of the plaintiffs in this case can show beyond wild speculation that someday, somewhere, they might be involved in an abortion. Maybe.

[loki13]

I agree. But unpacking all the stupid in a Ho outburst is ... tiring.

It's such a target rich environment.

[Rossami]

Yes, there is precedent. Yes, it is stupid precedent. More precisely, it is too vague and ambiguous to be workable in anything like a just society.

If you want to preserve your "aesthetic sense" or "emotional attachment" to a thing, shell out your own money and buy it. Protect it by using and enforcing your own property rights, not by using the bullying power of government to abrogate others' rights.

[ReaderY]

Ahhh…the old “trees have standing” theory.

[loki13]

Shorter Judge Ho-

I AM NEVER WRONG! The Supreme Court just regularly gets it wrong. Look, I know that this is a very, very, very conservative Supreme Court. But until they start ruling on their FEELZ like I do, they just aren't up to snuff.

Unlike that so-called Justice Roberts, I have not lost the support of the most Important Man in the World, Josh Blackman. And if he is behind me, there is no result I cannot justify!

[cpltunny]

Judge Ho's aesthetic argument was part of his concurring opinion, which nobody else signed onto. Why should the Supreme Court address bad arguments in concurring opinions?

[loki13]

Because he will keep throwing a tantrum until they FINALLY PAY ATTENTION TO HIM! He will write ALL THE CONCURRENCES until someone acknowledges his feelz and/or greatness. Until then, he will just have to bask in the adoration of Josh Blackman, Blogger at Law.

I swear, Judge Ho is a parody of what people think arrogant Article III judges are.

Aside to DMN- when we talk about the worst 5th Cir. judges, the reason I always think of Ho first is because he is so flamboyantly obnoxious. I get that in terms of jurisprudence, he has some company, but I don't think any of his colleagues is quite as insufferable.

[David Nieporent]

Sure. Oldham always sticks in my craw because of his Netchoice opinion in which he blasted Netchoice for relying on decades of binding Supreme Court precedent in making its first amendment arguments rather than going back to founding-era arguments about speech.

But Ho sucks. (No pun intended. And also no aspersions to be cast on NYSD judge Dale Ho.)

[David Nieporent]

Good point. Not only that, but AHM mentioned this argument only once briefly, in passing, in their SCOTUS brief:

If plaintiffs have an “undeniably ... cognizable interest” in avoiding the distress of losing “an animal species,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 562– 63 (1992), or even the chance to “view[ ] the flora and fauna,” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009), then Respondent doctors have a concrete interest in avoiding heartbreaking emergency situations that require them to be complicit in a process that ends an unborn life. Pet. App. 80a–83a (Ho, J., concurring and dissenting in part) (Respondents’ “aesthetic injury from the destruction of unborn life” is “cognizable”). The emotional harm Respondents suffer “suffice[s] for Article III standing.” TransUnion, 594 U.S. at 440.

That's it. So there was really no reason for SCOTUS to take it up.

[cpltunny]

It doesn't even make sense in this context. Like I sorta get it in the environmental context because if a government action is threatening an endangered species, you might not be able to see that species ever again. But if a baby is aborted, there's still hundreds of millions born every year that you can derive your "aesthetic enjoyment" from. Its also a bit tone deaf to suggest a doctor has standing to tell a woman she can't have an abortion because he'd like to lay eyes on the baby.

[TheAmazingEmu]

I think the quantity aspect is a useful distinction. There's no aesthetic standing to prevent the government from killing (or preventing the death of) a single animal. It has to be at the species level to count.

[ReaderY]

There was never any standing here. Even under AHM’s theory, there was only a highly speculative possibility of a future injury rather than an imminent one. The fact that AHM couldn’t find anyone who actually ever experienced an injury of the sort they speculated might someday exist despite this drug having been approved and in use for decades is, I think, quite telling. And that evidentiary failure had nothing to do with the Solicitor General’s position.

[cpltunny]

It was obvious there was no standing but Judge Kacsmaryk was never going to toss it out for that reason and his conservative colleagues on the Fifth Circuit did their best to salvage it so as to not come across as weak on pro-life stuff. Such a tremendous waste of time and resources because judges can't be impartial.

[loki13]

Also also?

Ho lies.

"Second, Ho demonstrates that the Court's decision was premised on the Solicitor General's flipped position:"

If you look to the actual cite from Ho from the Appellant's Brief, you see that it isn't an argument; it's a section title. But if you read the section, you can see that Ho is taking more than liberties with this.

Again, the reason that the appellant brief doesn't mention this is because this WASN'T AN ISSUE at that time. This was purely about a conflict between EMTALA and state statutory authority.

There was never any discussion (or questioning) about whether individual doctors might "opt out" due to conscience because that wasn't argued, or raised, or at issue.

There was no switch in positions. If the Fifth Circuit was actually interested in making real law-like substance, they could have raised this issue. Oral arguments?

But this just comes off as more CYA by someone who is transparently petty that his legal shenanigans are dismissed by others.