How Will the Mifepristone Case Get Back to the Supreme Court?

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On Friday evening, the Supreme Court granted a complete stay of the District Court’s order in Alliance for Hippocratic Medicine v. FDA. And that stay will remain in effect while the proceedings in the Fifth Circuit continue. For now, the status quo continues. Justice Thomas would have denied the application for a stay. Justice Alito dissented from the Court’s decision to grant the application for a stay.

Many press outlets reported that the vote was 7-2, but we cannot be so certain. For sure, there were five votes to grant the stay. It is also possible that 1 or 2 justices would have denied the stay, but chose to not indicate their dissent. (Will Baude flagged this possibility.) The timing of the case suggests that votes may have been in flux.  Originally, Circuit Justice Alito ordered that the temporary administrative stay would expire on Wednesday. But, before that deadline, the Court extended the stay until Friday. My guess is that there were potentially 3 or 4 votes for at least a partial stay, but Alito could not count to 5. Instead, the Court set the deadline for Friday night, so Alito could prepare his dissent. And, that release would ensure the order came after the close of business, when people would not be paying attention. (The Court has often issued emergency orders late at night on a Friday, after the news cycle is over.)

The Court did not issue any explanation for the stay. Perhaps five Justices thought that the Plaintiffs lacked standing for some, or all of their claims. Maybe five Justices thought that some of the claims were barred by the statute of limitations. Maybe five of the Justices thought all of the APA claims were unmeritorious. Maybe five of the Justices thought that the Comstock Act claims were unmeritorious. Maybe five Justices thought that the threat of irreparable injury to the government, and to the public, was so high that a stay was warranted while the litigation proceeded. But who knows? As we have been told incessantly, when the Supreme Court issues an order on the emergency docket, we do not know the Court’s reasoning.

Let me air what will probably be an unpopular opinion on all sides. If a majority of the Court thought that this case is a loser on jurisdictional ground, then the Court should have issued a short per curiam opinion explaining why there was no jurisdiction. Nothing will change in the proceedings below with regard to jurisdiction. Either the plaintiffs have standing, or they do not have standing. The Court could have put the case out of it misery, and avoided dragging the lower courts, and the country, through what may be a fruitless exercise.

Adam Unikowsky writes that this order “makes it likely that the FDA will ultimately prevail in this case.” Adam questions what more will be added by another round of briefing:

But their legal arguments, especially on standing, have been fully aired and I do not see how more thorough briefing would change the result. Moreover, it would be quite the bait and switch for the Court to flip on this a year from now

I agree with Adam. Nothing will be gained by another year of litigation. If a majority of the Court thought that this case is a loser on jurisdictional ground, nothing the Fifth Circuit will do can change the majority’s opinion.

But the Court didn’t explain its reasoning. Again, perhaps there was not a majority to coalesce around a single jurisdictional argument. Or perhaps the Chief Justice did his best ostrich impression, buried his head in the shifting sands, and hoped this issue would go away. (These issues never go away.)

What happens next? The case goes back to the Fifth Circuit. Oral argument will be held in 25 days, and counting. A panel has already been set, but the composition of that panel (as far as I know) is not public. Can the panel read any specific tea leaves from the Court’s per curiam stay? Given that there are so many interrelated issues that go to jurisdiction and the merits, I think the answer is no. The only clear inference that can be drawn is that the government should prevail. That insight is not particularly helpful for lower court judges who are asked to resolve a concrete case.

There are a few paths going forward. First, the merits panel may agrees with all, or part of the stay panel’s order. And that order can come quickly–maybe even this summer. The Solicitor General could file a quick cert petition, to get the case teed up for the long conference, for a decision by June 2024. But I think the more likely path is an orderly petition for rehearing en banc. Unlike Rahimi, where the government skipped en banc, here the SG will not be in a rush. The Supreme Court granted a stay for the entire duration of the litigation, so the status quo will remain. If a panel of the Fifth Circuit rules for the Plaintiffs, at least in part, I doubt that there are enough votes to reverse en banc. At most, dissents from denial of en banc could drag the process out a few months. So long as a cert petition is filed by November or December, the case can be added to the Court’s docket for disposition by June 2024. Finally, there is a political advantage to dragging this case out for the government. Post-Dobbs, abortion has become a political liability for many Republicans. And the closer we get to the 2024 election, the more this case can become another problem for the GOP. But there is a risk of the case going beyond the election. (More on that risk later.)

There is a second path. A Fifth Circuit panel may rule for the government across the board. Again, I don’t think there are many tea leaves to be drawn from the short per curiam order. But it wouldn’t be hard for some of the more moderate members of the Fifth Circuit to toss the case on standing ground. At that point, the Plaintiffs can seek rehearing en banc. And I think there is a substantial likelihood that the petition is granted. But that process will take a lot of time. At least in the Fifth Circuit, the en banc process can take a year, or more. The majority en banc opinion on the Fifth Circuit are often very, very fractured, with several Justices writing concurrences and dissents. The upshot of seeking en banc would be that the case doesn’t even get to a cert petition until late 2024, if not early 2025. The Supreme Court would not even touch the issue until after the change in administration.

And maybe that’s the best plan for the plaintiffs. A future GOP administration could decide to take its own administrative action to roll back some of the Biden administration’s changes regarding mifepristone. Specifically, a Trump or DeSantis FDA could reinstate the requirement that women have an in-person visit to receive this drug. No more telemedicine visits. And a future OLC could reverse the prior opinion concerning the Comstock Act, and prohibit shipping these drugs through the mail. We may also see criminal prosecutions for some people who potentially violated the act. (When the case first started, I always expected those two outcomes to be the most the plaintiffs could hope for.) Plus, don’t forget the power of sue-and-settle with ADF. Conservatives can play that game also.

Thus, there is a double edged sword for the SG by dragging this case out. Indeed, if the administration flips, the Supreme Court may never even decide the case. That brings me back to my unpopular conclusion: If a majority of the Court thought that this case is a loser on jurisdictional ground, then the Court should have issued a short per curiam opinion explaining why there was no jurisdiction.

The Court declined this path. And the case may never even make it back to the Court. The game of 4D chess continues.

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