Mifepristone challengers’ terrible case gives SCOTUS an opportunity

There’s a legal adage that bad facts make bad law. Tuesday’s Supreme Court arguments in the challenge to the abortion drug mifepristone showed that the facts are not on the side of the conservative, antiabortion groups seeking to dramatically curtail the drug’s availability. But in this case, the bad facts give the justices an opportunity to make a very good law — one that curbs single-judge rulings that have instant and nationwide impact.

The case is a challenge to the federal government’s approval and expanded availability of mifepristone, a drug that is part of the medication combination used in the vast majority of US abortions. The drug was first approved in 2000, and in 2016 the Food and Drug Administration allowed for broader availability of the drug, eliminating the number of doctor’s visits required for its administration and allowing its use through the 10th week of gestation.

It wasn’t only the more liberal members of the court who spent part of Tuesday’s argument lamenting the burgeoning phenomenon of nationwide injunctions being imposed by single judges in states like Texas, where the mifepristone lawsuit was filed. Conservative justices also questioned the wisdom of allowing federal policy to be stopped in its tracks by a single swipe of a federal judge’s pen.

Justice Neil Gorsuch, one of the court’s most conservative jurists and a member of the majority that struck down Roe v. Wade, decried the “rash of universal injunctions” issued in cases where narrower rulings would suffice.

“This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action,” Gorsuch said.

Similar critiques from Justices Brett Kavanaugh and Amy Coney Barrett didn’t bode well for the attorney arguing on behalf of the Christian legal advocacy group Alliance Defending Freedom. That group is the legal muscle behind a flurry of religious rights challenges, including the suit that led to Roe’s demise.

The attorney, Erin Hawley — who is married to Republican Senator Josh Hawley of Missouri — came to court to claim that her clients, doctors with religious objections to abortion, are harmed by the fact that mifepristone is on the market, because it forces them to treat patients that may have complications from the drug. She even made the gobsmacking claim that the risk to the doctors’ religious sensibilities is growing because they are located in Texas, where abortion has been nearly banned, so an increasing number of women are forced into emergency rooms if the care they need is unavailable.

But her biggest problem during the argument was the justices’ skepticism about whether the doctors bringing the challenge should be in a position to broadly upend FDA policy.

“Why can’t the court specify that this relief runs to precisely the parties before the court, as opposed to looking to the agency in general and saying, ‘Agency, you can’t do this anywhere?’” asked Chief Justice John Roberts.

“Your Honor, that might be impracticable,” Hawley said, noting that some of the doctors work in emergency rooms where they could be faced with complications from the drug “day in and day out.”

But earlier in the argument, Kavanaugh asked US Solicitor General Elizabeth Prelogar, who argued on behalf of the FDA, if doctors with religious objections to performing some types of care already have federal protection from doing so.

“Just to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” Kavanaugh asked.

“Yes,” Prelogar said. “Federal conscience protections provide broad coverage here.”

Their questions made it pretty clear that the court won’t disturb the FDA’s determination that the drug is safe and effective, at least not based on this case.

But that ruling alone won’t bring an end to the organized, well-funded, and persistent attempts by ADF and other groups to shop for judges willing to grant them nationwide injunctions to stop federal policies they oppose. That is, unless the justices clarify that that isn’t how the system is supposed to work.

Rather than simply ruling that the doctors in this specific case don’t have standing, the court should take the opportunity to take a stand on an issue that there seems to be majority support for: clarifying that nationwide injunctions should not be used as political tools. The court should clarify standing rules that plainly state that, except in the most urgent of cases, it is not the job of a single federal judge to set national policy. The justices saw firsthand how problematic such an approach is.

I can’t think of a better position on which to exhibit broad consensus — something that would be good for not only the administration of justice but also the court’s own reputation.

Conservative justices also questioned the wisdom of allowing federal policy to be stopped in its tracks by a single swipe of a federal judge’s pen.