Not two years after overturning Roe v. Wade, the US Supreme Court is considering a case that threatens to take the abortion pill, mifepristone, off the market. Alison, Liz, and Rebecca explain how the anti-abortion activist lawsuit started, how it got to the Court, and what we learned from the recent oral arguments.
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Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for the Separation of Church and State.
Liz Cavell:
And I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill:
And I'm Alison Gill with American Atheists.
Rebecca Markert:
So you may have noticed a slight change in our opening credits today. I've recently joined Americans United as its new Legal Director and as such, I'm very excited to announce that AU, a long time partner in the fight to keep religion and government separate, is now a joint producer of our podcast. Many of our listeners are probably already familiar with AU's work, but in case you are not, let me give you a brief overview of our organization. Americans United for Separation of Church and State is a non-partisan educational and advocacy nonprofit organization that brings together people of all religions and none to protect the right of everyone to believe as they want, and to stop anyone from using their beliefs to harm others. AU has been around for more than 75 years, all the while fighting in the courts, legislatures and public square for freedom without favor and equality without exception.
Those of you who've been with us since the beginning will remember that Rachel Laser, the President and CEO of AU was our very first guest back in episode nine. In that episode, we interviewed Rachel about her background and journey to the church state separation movement and AU’s biggest case that year, Kennedy v. Bremerton. I'm really excited about joining AU as its new legal director. I'm grateful to still be working in this space and I hope you'll consider supporting our amazing and crucial work and check out AU's website at AU.org today. In fact, we'll put the links to all of our organizations in the show notes.
Liz Cavell:
Yes, so congratulations to Rebecca who is taking on a new challenge leading the legal department at AU. We miss her very much at the Freedom From Religion Foundation where she's been for 15 years. [She] built our legal department, so we're feeling her absence, but it's an exciting new challenge at AU, and of course we're still all in the movement together, and most importantly, nothing changes about the We Dissent podcast. All three of us will still be here hosting and we get to bring AU into the fold as a joint producer, so it's exciting.
Rebecca Markert:
And here I thought you were going to say the most important thing was you get to still see me in person once a month.
Liz Cavell:
That's also really big.
Rebecca Markert:
Liz and I do record in a studio, so I get to see her lovely face every month still.
Liz Cavell:
Here in Madison, Wisconsin, it’s great.
So for today's episode, we are going to discuss the mifepristone case. It's currently before the US Supreme Court and oral arguments just took place a few weeks ago on March 26th, so the court's going to be issuing an opinion soon—probably this summer—on this case. It's extremely important, it has far reaching implications, so we're going to give a recap of the case in case you've tuned out or forgotten what the case is about, what gave rise to it, and what it's doing at the US Supreme Court. And then we're going to discuss what happened at the oral arguments on March 26th: what we learned, what was being signaled, what scared the living crap out of us. So, I'm going to dive right in and we'll just go through the background of the case, how it started, and what the US Supreme Court is actually considering.
So everybody listening to this is probably familiar with mifepristone, but if you're not, mifepristone is a pill. It is a progesterone blocker. It's used for a number of things, but one of the things that's really commonly prescribed for is for abortions, early term abortions usually, and it's part of a two pill protocol, usually with another drug called misoprostol, which is not at issue in this case, but taken together they induce an abortion. And so you've probably heard this referred to as the abortion pill. It's also used and known as emergency contraception, whether you're hoping not to become pregnant in an emergency or whether you're in early pregnancy, but you want to terminate. So this drug has been on the market for ages. It was approved by the FDA in the year 2000, so that's 24 years ago during the Clinton administration. It's been subject to the typical rigorous approval process that drugs and food undergo for the FDA to approve it. And of course, they exercise ongoing oversight over the safety and efficacy of all drugs including mifepristone. So it kind of has a history from the year 2000 through the past 24 years of FDA ongoing oversight and involvement. Notably in 2016 during the Obama administration, the FDA approved mifepristone's use up to the 10th week in pregnancy. During the pandemic, the FDA got rid of the in-person dispensing requirements for mifepristone to make it more readily available and to reduce obstacles to obtaining the drug, during the pandemic when in-person visits were really difficult or dangerous. So the important thing to note about the 24 year history from the year 2000 and the FDA's approval and oversight of mifepristone is that it's been transparent and ongoing, so any affected parties including anti-abortion activist doctors and their lawyers have been able to raise objections within the approval process, the administrative process, at every step of the administrative process of approval, re-approval, expanding the number of weeks it was approved during taking out the in-person requirement.
All of those stages have been open and transparent and inviting citizen feedback, and in fact, these same or similar overlapping anti-abortion activists that are involved in this case did file citizen petitions at many stages of the approval of this drug or at every step, every new step of the administrative process for the approval and oversight of mifepristone. I think that's noteworthy because again, a big part of what we're going to hear about in the case before the Supreme Court that's being complained about by the anti-abortion activists who are trying to get mifepristone off the market is that the FDA is somehow overstepping its authority in the approval process for the abortion pill mifepristone. So let's turn to the case at issue here. So, important background is that the plaintiffs who filed this case [are] a group of individual doctors plus an organization of anti-abortion doctors who make up this group called the Alliance for Hippocratic Medicine. And this is a pro-life activist group, which was specifically formed to bring this litigation, and it was incorporated in Amarillo, Texas specifically for the purpose of getting this case assigned to the federal district court that sits in that district within the Fifth Circuit, and that is the district presided over by Matthew Kacsmaryk, whose name might be familiar to some of you.
Rebecca Markert:
I think it's significant to note that it only took two years for them to take another abortion case after they overturned Roe versus Wade. And of course we knew that this was a plan all along, that they weren't just going to stop at Roe versus Wade, that they wanted to get at all forms of family planning, contraception and all of that. So this is all moving, I think, very quickly.
Alison Gill:
On that point. It looks like they were founded in August, 2022, so shortly after the Dobbs decision.
Liz Cavell:
Right, that makes perfect sense. I feel pretty comfortable saying that the organization was formed specifically with a view towards taking this litigation and importantly forum shopping, right? It's headquartered in Amarillo of all the places it could possibly be incorporated and headquartered, and that's no coincidence. They're specifically handpicking the judge that they wanted to hear this case, and of course their plan worked, right? They got the decision that they were shopping for.
Rebecca Markert:
Well, and why would they pick this judge? As you've probably heard us mention on previous episodes of this podcast, Kacsmaryk is a Christian nationalist judge. He was handpicked by Trump for those purposes knowing that he was going to get on the federal bench and espouse particular views that Christian nationalists seem to embody and want to impose on the rest of us.
Liz Cavell:
Right. At FFRF, we in 2020 did a report on how the judiciary was being and has been remade by the Trump administration in selecting all of these ultra-right, radical Christian nationalist individuals to be appointed to lifetime positions on the federal bench, and Matthew Kacsmaryk is right out of that playbook. He's formerly an attorney for First Liberty, a well-known Christian-nationalist, mega, nonprofit law firm in Texas, and our organizations opposed his appointment by Trump for the bench for that reason. He openly espouses virulently anti-abortion and far-right, ultra-conservative, Christian viewpoints on matters that affect the rest of us in terms of how he would rule on cases that involve abortion, that involve same sex equality and a whole host of other things that are priorities for the Christian nationalist far right.
Rebecca Markert:
So he affirms everything that the alliance for Hippocratic Medicine and these individual doctors want.
Liz Cavell:
That's right.
Alison Gill:
Well, we should go into that though. These doctors, they basically are alleging that they're being impinged upon by this medication existing, right, because their conscience might be indicated or they might have conflicts with their conscience if they have to go to a hospital to deal with a sort of, I don't know, I guess I'll call it a botched abortion or a miscarriage caused by this medication potentially. So that's their alleged standing. They might have to deal with this and they have a conscience argument against it.
Liz Cavell:
Right. So importantly, the Alliance for Hippocratic Medicine itself is a named plaintiff in this case, and they are supposedly an organization representing a whole bunch of doctors, and notably, it's not necessarily obstetricians and gynecologists in this group, it's just anti-abortion doctors. And so the doctors that are part of this lawsuit, the only thing that they have in common is that they are anti-abortion activists and they really do not like abortions. They don't perform abortions and they don't, importantly in their medical practice, they don't prescribe the abortion pill. They don't ever find themselves in a position to prescribe or treat their own patients during the administration of mifepristone. But so what they're claiming, as Alison's describing, is that they may deal with emergency room care and that they might—not that this has happened—but that they might and don't want to face a situation in the emergency medicine context where they have to treat a patient that is suffering from some kind of side effect or consequence of taking the abortion pill mifepristone.
Rebecca Markert:
I hear you saying that they're not engaged in the practice of providing abortions or prescribing this medication. I'm also hearing you say that they might eventually, at some point in the future that is undefined and not known to us, medical care involving a person who may have taken this drug, none of which has occurred.
Liz Cavell:
Right.
Rebecca Markert:
Where have we heard this before? Have we heard this type of case before? It seems like we have.
Liz Cavell:
Right. This is the playbook for standing that we've seen not infrequently from our ultra-conservative Christian litigants who really want to eviscerate the rights that the rest of us have by bringing these hypothetical challenges. Rebecca, I think is alluding to the website designer case that we heard before the US Supreme Court where we had the website designer who doesn't design wedding websites, but she wants to expand her business into that area. But she's thinking to the future and if she has to serve hypothetical same-sex couples who have never asked her to build a wedding website because again, she doesn't offer that, she might have to violate her conscience, right? This totally speculative, tenuous, future imagined harm. And again, as you've heard us talk about on prior episodes, it is an essential requirement of our constitution and the jurisdiction of our courts that litigants have what's known as injury.
In fact, they can point to a specific harm that's being caused by the defendant's behavior, and we'll get to what the defendant's behavior is in this case, which only further adds to the attenuation of the harm. But you have to be able to spell out the specific harm that's being caused because what you're asking the court to do is something that presumably is going to ameliorate the harm, right? Like, what's the remedy you're asking this court for and how is it going to fix or undo the harm that you're experiencing or the imminent harm that you might be experiencing?
Alison Gill:
That gets into another issue, which is redressability, right? So it's not just is there an actual harm, but is the court able to redress that harm? So standing has a few different elements and that's a separate one that's definitely worthy of consideration here.
Liz Cavell:
Yes. I think that's important. The remedy, and we did here, and we'll get into a little later, this comes up for, notably Justice Jackson, at oral argument, which is [that] the injury is not only speculative, but it's not redressable. The remedy here is out of step with any injury, even if it were more immediate.
Rebecca Markert:
But that's what makes it so unbelievably insane to know that they have this hypothetical injury and they went to Texas to a very specific judge in order to get what they want, and they had no qualms about doing that. There's no shame, like, we are going to incorporate two months after Dobbs is handed down in the state of Texas. We're going to go to this very specific judge who we know we're going to get the ruling that we want from, and we don't have an injury. If this was us, any of our organizations on the other side, we would not be at the Supreme Court. We've said that a thousand times on this podcast before, but there's no way that any of our organizations could have pulled this sort of scheme and gotten as far as they did.
Liz Cavell:
Right.
Alison Gill:
It's just so blatant here, you know what I mean? It's just so outrageous. And this case focuses on standing and I do hope that they get reigned in because I think even the court has to be skeptical here because of the consequences, which I'm sure we'll talk about. But just to recap the arguments again, just to be clear, they are saying because of this potential future speculative conscience argument, they get to challenge the FDA's original approvals of this drug, which were ranged from decades old to years old and therefore not make it available on the market for anybody regardless of their beliefs or lack of beliefs on this issue. So it affects everybody just because a few doctors in Texas have this complaint. I just want to lay out the whole scope of what would happen here in this case if they were to succeed.
Liz Cavell:
Right. That's exactly right, because again, that is the remedy that these parties are asking the court for because again, they're suing the FDA here. This is not like some doctor suing their employer for forcing them to do something. This is a group of anti-abortion doctors challenging the whole cloth approval of this drug across the United States for everyone's use because of what Alison just described, their speculative chain of harm. So below, before Matthew Kacsmaryk in Amarillo, the Alliance for Hippocratic Medicine was challenging, like Alison said. I didn't spell out every single year that the FDA acted with regard to mifepristone, but there were several times where changes were made to the approval parameters or to the availability of the drug, like in 2021, the in-person dispensing requirement. So the group was challenging pretty much every stage of that, the first approval in 2000, 24 years ago, and then all the major changes made by the FDA along the way, and most notably the 2021 in-person dispensing requirement being waived by the FDA, a couple of other things that aren't that notable, but we will talk about later because some justices seized on them. Just to get us to the Supreme Court, obviously these plaintiffs won their case before Judge Kacsmaryk. He granted the plaintiff's motion for a preliminary injunction and obviously finding that they had standing to make all these challenges, that their injuries were sufficient for him to decide the preliminary injunction, which meant they're likely to succeed in their case. Therefore, mifepristone being administered across the US needs to halt while this case is being decided.
Alison Gill:
You know, there was a case, I'm trying to remember what state it was in, I think it was in Arkansas, where we tried to get a preliminary injunction for an ongoing harm about our free speech issues for some of our clients. And the judge in that case said, this was a close decision, but because you waited an extra three months or something, it didn't file right away. I'm not going to give you the preliminary injunction. I'll just note that this is challenging something from 20 years old and they still granted a preliminary injunction just to give you an idea of how outrageous every single aspect of this decision was. But I'm sorry to interrupt.
Liz Cavell:
No, completely outrageous. And you're right. In Kacsmaryk's ruling, he is finding in their favor in this granting of the motion for preliminary injunction on all of their claims, giving them injunctive relief even for the 2000 approval, which again is a thing that has been happening for 24 years, needs to halt because it's so harming these individual plaintiffs while we sort out this lawsuit. So that was appealed to the Fifth Circuit Court of Appeals, which is notably very–
Alison Gill:
Terrible?
Liz Cavell:
Bloated, well, I was going to say bloated with Trump appointees who basically upheld that decision. They did vacate the order that pertained to the 2000 approval by just saying that it was barred by the statute of limitations, what Alison said, you waited too long to challenge that 24-year-old approval, but all the recent FDA actions, so from 2016 on, including the 2021 in-person requirement waiver, the Fifth Circuit upheld the injunction that applied to all of that. So, that was really stark because this case is absolutely outrageous and not only was it kind of rubber stamped by Matthew Kacsmaryk, but the Fifth Circuit Court of Appeals basically gave its blessing to this whole project.
Alison Gill:
And now we're at the Supreme Court, right?
Liz Cavell:
Yep. So this is appealed to the Supreme Court, and the Supreme Court decides to take up this case for actual argument, which we'll just put a pin in that because we can talk about why they did that later, because obviously the Supreme Court has options when they're petitioned for cert. They could have vacated this without argument, but that's not what happened. They did decide that they're going to take this up for argument. So it was fully briefed, and like we said, oral arguments took place a few weeks ago.
Alison Gill:
They did stay the preliminary injunction though.
Liz Cavell:
That's important.
Alison Gill:
Which is one good thing, right?
Liz Cavell:
Yeah, that's important. So the court did issue a stay on this injunction that says "everyone stop taking mifepristone all across the country while we decide this case in Amarillo, Texas," that action by Kacsmaryk that was allowed to stay in place by the Fifth Circuit, the Supreme Court did say, okay, we're going to hear this appeal, and that injunction is stayed while that happens. So right now, and during the pendency of all of this appeal, nothing has changed. Mifepristone is available everywhere that it was before this case, but of course the Fifth Circuit opinion being appealed to the Supreme Court is still under consideration. It's being fully briefed on both the standing question and the merits question. They took it up on two issues. They agreed to consider these two separate issues, which is these anti-abortion, ultra-conservative Christian doctors: do they have standing to challenge the approval of the abortion pill in this case? That's kind of the threshold inquiry, just the procedural question. Do the courts even have jurisdiction to hear this case because of their standing?
Rebecca Markert:
And if they decide no, they don't have jurisdiction to hear this case, it ends there.
Liz Cavell:
As so many of our cases have ended.
Because you don't even get in the courthouse door if you haven't proved standing. It's usually a pretty rigorous requirement in our experience. You really do need to have a present injury in fact and redressability in the case. And so that's the first issue that the court is going to consider. And as we'll see at oral arguments, it does seem to be the principle question that the court is kind of concerning itself with in this case. But they did also agree to take up the issue of whether or not the FDA actions on mifepristone, that the injunctive relief was upheld by the Fifth Circuit Court of Appeals, whether or not that FDA action was arbitrary and capricious. In other words, the FDA was so wrong in what they did that their action can be said to legally have been arbitrary and capricious, in other words, not supported at all by the scientific record.
Alison Gill:
And the reason we're saying arbitrary and capricious is because that's what the standard is under the Administrative Procedures Act or APA, which is the law that governs when agencies take actions like passing regulations or issuing guidance and doing things like this. So that's why it's relevant. It's a legal standard that applies in a lot of these agency level cases.
Rebecca Markert:
Right, and I think that's an important thing to note, that this is a case that's not based on any constitutional right. It's based on whether the administrative agency had reasonable rulemaking authority by the federal government.
Liz Cavell:
And the agency in question here obviously is the FDA, and this is really noteworthy. It's an atypical posture for an abortion case to come through the courts, because again, it's not being raised on the basis of a constitutional question or even a question of these doctor's rights to be constitutionally exempt from doing anything. They're talking about that peripherally, but that's not the challenge they're bringing. The challenge they're bringing is to the FDA's action in approving and making accessible mifepristone. And that is really, really an atypical way to use the courts to control what federal agencies do: their actual decision making when it comes to judging the safety and efficacy of all kinds of products, not just pharmaceuticals, but obviously food and labeling and things like that. The drug manufacturers, one of whom, the one that manufactures the name brand of mifepristone, is involved in this case, but the pharmaceutical industry in general is freaking out over this case because the ruling by Kacsmaryk and the Fifth Circuit just absolutely upends the whole framework by which our government judges safety and efficacy and approves drugs. And if it's this easy for a group of activists to just totally overturn the judgment of the FDA, that just totally eviscerates the authority of federal agencies that we rely on every day to keep these industries going and to keep things safe for consumers.
Alison Gill:
So I have two things to add there. The first is that, just to be clear to folks, this is not like them saying, I have a conscience not to engage in abortion. This is them saying, I have a conscience objection here, and therefore this drug should not be on the market. So, basically, I have a conscience right. Therefore you can't take the drug, which is not a typical sort of posture for conscience, but it's being used in this aggressive sword type manner to stop other people. And secondly, there's really two ways that this sort of upends potential law here. One is it opens the door for these challenges to things that have been sort of established well in the agency records. So basically these were not really challengeable before in this easy way. So it opens the door potentially there, but it also opens the door in terms of who can challenge it. You just have to have an objection, something based on your beliefs, and then you can open the door to challenge all these things. So it both widens who can challenge it and also sort of allows new types of challenges to be brought, so it would be really unsteady just you could think of just a huge number of drugs that could be challenged and not just drugs: procedures, vaccination, geez, vaccination would be a huge one just all across the field.
Liz Cavell:
Right, right. Very important to point out as you just did kind of sideways in that point, is that the FDA, just the FDA, and this is just talking about the FDA, has the authority and oversight over not just pharmaceuticals, but also vaccines and testing kits and food and all kinds of things. There's nothing in this case that would somehow contain it to the mifepristone pill in terms of this sweeping relief that these plaintiffs are asking for. So I want to go to oral arguments because I think a lot of these points that we're trying to explain were really well illustrated at oral arguments. Obviously most notably the questions around standing, because I do think it seemed pretty clear from oral arguments that most of the justices seem inclined to decide this case on the issue of standing, I don't think it seemed likely from oral arguments that a majority of the court will reach the merits ruling on whether or not the FDA's action was arbitrary and capricious. I don't think the majority of the court is inclined to reach that far.
Alison Gill:
And just to be clear, that's good for our side and the side of sanity, which is excellent.
Liz Cavell:
It is. We first heard from the solicitor general Elizabeth Prelogar, who. more calmly than any human being should ever be in these cases, talked through the obvious flaws in standing, and she was pretty much subject to immediate questioning by the justices. And I think that's where we really started to see that they were pretty fixated on the questions around standing. A couple of things stood out to me during this part of the argument, which was we of course heard Justice Sam Alito jump in with some really aggressively defensive questioning that holds no consistency with other positions he's taken in other cases. So he was pushing back to the solicitor general about whether her argument is that even if the FDA flagrantly overstepped its authority, nobody has the standing to sue in court. It's so crazy because Justice Alito himself has been a stickler for Article III Standing in other cases who has said himself in other cases, including ones cited in this case, that it doesn't matter. The argument that nobody has standing to sue over something is not sufficient to confer standing on the plaintiff in that individual case. And that's exactly the thing that he was pushing during the solicitor general's opening on standing.
Alison Gill:
Which I'll note is in direct conflict with Marbury v. Madison, which is the basis of constitutional review by courts, which is that there cannot be a right without a remedy. But anyway, that's not where we are today in the courts, just flagging that.
Liz Cavell:
No, it is not. And so of course I think the solicitor general very deftly redirected her argument back to just how lacking standing is in this case. It is pretty hard to argue by analogy to any rational lawsuit that has ever existed when you're talking about the plaintiff's injury here and how it connects to the defendant's action, the FDA's the agency action. So I'm not saying there was really strong pushback on the standing arguments that were brought up in the opening, but definitely you do see Justice Alito being the one who is pushing back on and just singing the anti-abortion song in the oral argument questioning. I do have to note, because it was so pointed at us personally, Justice Gorsuch, during Prelogar's argument, jumps in. He's such an evil plotting villain. Arguments are kind of showing which way the wind is blowing, right? Everyone's focused on standing. The standing in this case is so patently absurd. Gorsuch jumps in to say, "Hey, isn't this kind of like offended observer standing in the Establishment Clause?" Right? You can see the evil wheels turning in his mind as he's plotting how he's going to use the decision in this case to just further eviscerate standing in Establishment Clause cases, environmental law cases where the plaintiff's standing is less concrete than in a personal injury case or something like that. The way that an offended observer standing is kind of the pejorative way that—
Alison Gill:
Yeah, that's not a good framing at all, by the way. We would never say that.
Liz Cavell:
Right? Quoting this, I'm quoting Gorsuch here, offended observer standing is the pejorative used to describe the theory of standing that the courts have used to decide Establishment Clause cases, which is: individuals who bring these cases have to have personal contact with the government action that's being challenged. So in the case of a cross on display, in the good old days when you could challenge them–
Alison Gill:
Or a sermon offered by a police department or whatever it might be,
Liz Cavell:
Exactly. If kids being proselytized in the public school, it has to be that kid or that parent who's bringing the court case, and it's because they are the one coming in contact with the Establishment Clause violation. Gorsuch would call that quote, unquote, “offended observer standing” because it's the person who's offended that brings the case and that confers standing. But of course, it's not offense that is conferring the standing. It's the fact that you are the citizen who is forced to come into contact with the government pushing religion on you in violation of the Establishment Clause. You're the individual. It's not anywhere near anything as speculative and tenuous and totally absurd as the theories that are being argued in this case. But Gorsuch jumped in to take a random shot at the standing theories that are used to take those cases because he hates the Establishment Clause and loves corporations and polluters and is just like, "Hey, I know what I could get out of this opinion, further eviscerating all the cases that I hate."
Rebecca Markert:
Well, and that's what I think, I didn't think it was such a random shot at all. All I heard was the question saying, what about offended observer status? And in my head, I saw that cartoon with Gorsuch sitting at his little typewriter and pages flying because he's drafting his concurrence in this opinion, which is talking about why the court should eventually get rid of offended observer standing for all sorts of cases, including the Establishment Clause, because that is something that he hates. This is similar to his concurrence in the City of Boston versus Shurtleff case where he was just like, let me take a moment to just tell you how much I think the Establishment Clause sucks and doesn't really exist.
Alison Gill:
Unfortunately, the Solicitor General here did not do a very strong defense of the Establishment Clause, at least in my opinion, of this standing. She really just sort of let it slide and said, well, this is a different issue. And he said in response, well, they all harmonize all these things, but I will point out that the First Amendment was an amendment to the Constitution and standing derived from Article III. So it's not unreasonable to say that this is necessary to achieve the goals of the First Amendment, which is church state separation under the Establishment Clause. So that seems reasonable to me. There's no reason it has to completely align with Article III, but it's an argument for another day, I think.
Liz Cavell:
No, a hundred percent. It's absurd to say, and Gorsuch knows this, and I think it's why he kind of got Prelogar on the back foot, and that's what I mean by random. He put it out there and she's just like, wait, hang on. We're talking about an abortion case. And so he almost got her to concede kind of that offended observer standing maybe, whatever. This isn't anything that we're– it’s like saying, everyone's singing musical notes and saying, there's that guy over in the corner scratching nails on a chalkboard. Shouldn't we all harmonize? It's like, no, that person's not doing musical notes. Don't pretend that this is all of a piece with standing theory, just getting too far afield of rigorous reading of Article III. That is not what's going on. The plaintiffs in this case are so unbelievably outside of any rational or warranted by case law theory of standing that, I mean, it's absurd to say that this is similar to what we see going on in the Establishment Clause jurisprudence, which of course, I think Gorsuch knows, but never misses a chance to just close the courthouse doors.
Rebecca Markert:
Well, and that's why I feel that while I'm super excited to think that this case is going to be bounced on standing, and I think that's probably what we're going to see, I do have this part of me that thinks they're going to ruin something else that is critical to our organizations bringing Establishment Clause cases and true religious liberty cases in the future. And that's all I saw aside from his crazy typewriting concurrence picture in my head. I also just thought: this is wonderful for advocates for abortion rights, but I just have this feeling that advocates for the separation of church and state, it's not going to be great for.
Liz Cavell:
And the environment and other things where the theory of standing necessarily takes the character of you are just a person. You're in the zone of being affected by government action or agency inaction or whatever it is, which is a very, very, very far cry from what is being alleged in this case.
Alison Gill:
So on this point, another issue that I thought was really significant that we might see really bad case law come out of this on is around EMTALA, the Emergency Medical Treatment, and I want to say Labor Act, I'm not quite sure what all the acronyms are, which is a law that says when a person goes to a hospital and they're in critical condition, they have to be stabilized. So it's a law that says people don't die in the streets, they have to be actually treated by hospitals, right? So it's really important and it's one that's actually being challenged in another case before the Supreme Court this term, which I'm sure we'll talk about, but here the Solicitor General says basically that there's a question of to what degree there are religious exemptions for these doctors, to what degree they can decline to offer care, because she's sort of painting that with a broad brush.
Not only is this very rare, not likely to happen, but even if it does happen, the doctor could just step back and say, well, I have a conscience exemption. I don't have to offer care, and therefore they don't even have standing in any measure because they could just choose not to offer care. And so the question is, does EMTALA force them to offer care in certain circumstances? And she says, no, it doesn't. No, they're not forced to offer care under EMTALA even if they're the only doctor there, which is really a stance that hasn't been taken as much. It's a stance that I don't think most national repro groups would agree with, and it's really concerning, but she took it here just to, I think, give herself the most breadth, so the Supreme Court can't possibly find standing. But what if the Supreme Court comes back and says, well, because EMTALA means that because these conscience exemptions never apply, because EMTALA does not apply, then they don't have standing, but only because of EMTALA does not imply, but what if they say that? I mean, it could be a real blow.
Liz Cavell:
Yeah. And again, it's a completely bad faith questioning by the justices because again, we're not talking in the realm of things that are actually happening, because, EMTALA or no EMTALA, we know that not even the plaintiffs before the court can point to an instance where they were asked to perform follow-up care on mifepristone patient, let alone had the chance to raise an exemption and then get that denied. So I mean, we're not talking about the realm of things that are actually imminently happening to anyone. We're talking in the realm of academic things that are or aren't provided for in the EMTALA statute. And of course, yes, I think the solicitor general is trying to get through this mifepristone case on the strongest ground possible. But I mean, kind of like the Establishment Clause thing, it's the justices doing their best to neuter all the other things that they hate while deciding correctly. My air quotes are going in this case.
Alison Gill:
I mean, look at Masterpiece. Similar, right?
Liz Cavell:
Totally. I mean, it's like everything with this court. This court is an absolutely ultra conservative radical majority, and so yes, they might decide the “right way” in this case by dismissing on standing, but nothing comes free with this Supreme Court majority.
Rebecca Markert:
Exactly, exactly.
Liz Cavell:
So a couple of other things I wanted to raise from oral arguments that were noteworthy: oral argument also included in addition to argument by the Solicitor General on behalf of the FDA, an attorney on behalf of Danco, and that is the drug manufacturer of Mifeprex, which is the brand name mifepristone. So the justices did get a chance to question the attorney for the drug manufacturer, and that attorney took a lot of time to argue or point out the interest of drug companies in all this. We talked about earlier the potential for this case to just totally upend the industry, the regulatory framework that we all rely on, and also just to point out that there are ways for plaintiffs that actually are injured by actual drugs that cause harm to get redress.
It's called tort litigation. People sue drug companies all the time when they're actually harmed by drugs. No one is actually harmed by mifepristone so you don't see a lot of that tort litigation. You just see wacky off the wall stuff like this from activists. But I do think it's important to point out, you got Sam Alito going, whoa, well, so if no one has standing to sue the FDA for approving this drug, what nobody can do anything about mifepristone, like if anyone's harmed by mifepristone, they can just sue the drug company like everyone else does when they're harmed by a drug, as we've all seen the class action commercials telling us if we were harmed by X drug–
Rebecca Markert:
We may be entitled to compensation.
Alison Gill:
You raise a really good point there. And part of the problem is they spent a lot of time talking about how infinitesimal this is, but even if it was like, I don't know, a hundred percent chance, you know what I mean? If it was a high chance, it's the theory of law that is bad here. It's a theory of law because you can't have just some random doctors sue to stop something from being approved by the FDA for everybody after the fact. That's crazy, and it's not a workable solution. And if we just think about it and apply it to other situations, we'd see that that's not workable. But they spent time showing how attenuated it is here instead of trying to, I think, trying to draw why that conception can't possibly work. I'm surprised that we didn't hear more sort of consequentialist arguments on that front, like what the outcomes would be if anybody could just try to stop a drug in this manner. You know what I mean? Let's say sexual abuse victims try to sue after the fact and try to stop the Viagra from being approved or who knows? There's all sorts of things. You could come up with any number of examples that would be allowable if you allow this conception, what might happen if you don't like the sexual abuse angle there, then maybe just urologists who might see additional problems in their practices because of that drug. So I'm just using that as an example, but you can just see all the different angles.
Liz Cavell:
Totally. And I do think that's really a good point. This is one of those cases where it's like there's so much to scream about. It's hard to kind of pare it down to, it's so bad even in the purest form where you give every benefit of the doubt to the plaintiffs on the facts. It's still such a bad theory of law, and I think that's so important to point out, is that the theory of law being argued to confer standing is so very bad. Even if it weren't the case that mifepristone is, like, this exceedingly safe and effective drug, it would still be an extremely bad theory and this case should be dismissed. So it just adds—the fact that we don't even see this type of harm almost ever—just kind of adds insults to no injury.
Alison Gill:
If I could add one other thing on the theory of law issue, which is that Alito keeps bringing up these ideas. Well, who can challenge it? Who has the ability to stop the FDA from issuing this? But I think it's important for us to think about it from the other side. Let's say a few doctors did bring this complaint and then the FDA was prevented from authorizing mifepristone. Why does conscience only matter for that one side? What about all the other people out there, the women who want to take it, the doctors who want to prescribe it, everybody else would have absolutely no remedy. Absolutely. They can't go to court. It's already been decided by the Supreme Court. They had no ability to participate in that case. It's just like it was a decision imposed on them by groups that they had no ability to affect in any way. And what if they have conscience objections or imperatives that they have to follow in this regard? That's just ignored. The only conscious that matters is these few doctors. So I think that's something to consider. The court didn't consider that at all, but I don't know. I wish it had examined the theory of law a bit more and didn't talk as much about how attenuated it's. It seems misplaced to me.
Liz Cavell:
It just shows the absurdity of the remedy being sought here. It was just really frustrating because it's so beyond an absurd outcome that this case would be allowed to proceed what the Fifth Circuit decided, and Judge Kacsmaryk is such an unbelievable bastardization of Article III and every rule of jurisdiction, but yet here we are at the Supreme Court just having yet another academic discussion about, oh, what about this? It's so frustrating when the case is this absurd, profound and far reaching and affects literally every single person in the country just as much, if not more than the plaintiffs. But we're talking about it like it's a legitimate use of the federal courts to redress an injury.
Alison Gill:
What'd you think of the opposition's argument by Hawley?
Liz Cavell:
Yeah, Erin Hawley, senator's wife and major conservative anti-abortion lawyer.
Rebecca Markert:
And we should mention who she's representing here.
Liz Cavell:
Of course, one of our old nemeses, the Alliance Defending Freedom, ADF, is the force behind this case, right? They are the legal representation for the anti-abortion doctors that are bringing this lawsuit, and Erin Hawley is the lawyer from ADF that argued this case. Her argument before the court was really just the anti-abortion fetal personhood framework. It was really extreme. It was really activist. What was really funny is when she opens, you get to say, kind of, a few opening things before you get interrupted for questioning. She kind of misspoke and she said tens of thousands. And then she's like, I'm sorry, excuse me. Dozens of women patients that are harmed, which caught my attention as I'm listening, she's like, oh, hang on a second. I was believing my own hype there for a second. I have just remembered I have to be candid before this court because I am still actually a lawyer.
Alison Gill:
Yeah, it was really funny. It's interesting. She really wanted to rely on this method of having standing based on percentages, like if you can show there's some percentages, and that comes from a case called I think Havens. I think the solicitor general Prelogar basically fought back against that preemptively and sort of argued against it. But she really was arguing that because there is a percentage here, it's possible this could happen. Look at these percentages, and that means that there's a chance it could happen. That means that they should have standing.
Liz Cavell:
Right? It's like all you have to prove is a non-zero chance of this wild chain of events taking place. And if you do that, then you have standing, is kind of the idea, is trying to push back because there's so many different ways to illustrate how not grounded in reality and, in fact, the injury is. So, I mean, I think she tried, but obviously that doesn't get at so many of the problems with the legal theory here. It's not just like we talked about. It's not just about the probability of this chain of events happening. There's so many more problems with redressability and so forth.
Alison Gill:
Looking beyond the standing issue, there's also the issue of, I think it was brought up into discussion, some of the problems with the analysis the court did: looking at, for example, studies that were not scientific and pulling in all sorts of data. We've talked about the problems with using courts as requiring them to be historians. I don't think requiring courts to be scientists is great either, and I think this shows some of the problems with that approach. But I mean that's another issue here. If we open up the door to allowing courts to address things in this way, then they get to sort of define what science, not just history, but what science is.
Liz Cavell:
Totally. I mean, as fellow attorneys at FFRF and I titled our video debrief on the oral arguments, "Dr. Alito, What Pills Can I Take?" Which is another way of saying just like with judges doing history, they’re so ill-equipped to parse scientific data and come to some or alternate conclusion from the legitimate scientists at the FDA. And I think one of the questions that Justice Jackson asked the Solicitor General, which was pointed at Justice Alito, is shouldn't we be worried about justices and judges on the federal bench second guessing the scientific conclusions of agency experts? That's the thing to be concerned about, not whether or not the FDA is infallible.
Rebecca Markert:
And I want to go back to that because I thought it was such a brilliant callback by Justice Jackson, because earlier in the argument Justice Alito asks Attorney Ellsworth, "do you think that the FDA is infallible?" And of course the answer is no, only God is right. Just kidding. But anyway, Justice Jackson says to Attorney Ellsworth, "so you were asked if the agency is infallible. And I guess I'm wondering about the flip side, which is do you think that courts have specialized scientific knowledge with respect to pharmaceuticals, and, as a company that has pharmaceuticals, do you have concerns about judges parsing medical and scientific studies?" And I just thought that was the perfect way to shoot Alito down and also make the point that we've been trying to make in other instances too, that courts do not have specialized knowledge, and this is why some of these agencies exist, because they do have the expertise and the knowledge to make recommendations to make policy, and courts, who are comprised of lawyers, do not.
Liz Cavell:
Totally. And the energy was just perfect. It was an equally rhetorical argumentative question that did not need an answer, but just directed at Justice Alito, who's of course trying to suggest that the biggest threat in this whole situation is whether or not the FDA has too much authority or could ever make a mistake. What's the follow-up question to that? So if the FDA is not infallible, therefore we should decide which drugs are safe and efficacious. Obviously that's terrible, but there is no follow-up from Sam Alito, right? Because he's just an activist. It's just to stop the abortion pills. There's no, “okay, but what do we do next about keeping drugs safe and effective?”
Rebecca Markert:
Well, and then the funny part after that question, Ellsworth starts talking about what the District Court Judge Kacsmaryk relied on, including a study that was based on anonymous blog posts, which is terrifying.
Alison Gill:
Yeah, seriously. Seriously.
Liz Cavell:
Yeah. A lot of bad information in the District Court opinion.
Alison Gill:
I have a question for you both. So I mentioned before that Solicitor General Prelogar was basically trying to lean on the conscience objections to sort of bolster her position. I mean, that's only a few conditions where there are federal denial of care slash conscience objections like sterilization, abortion, end of life care, there's a few others, but most conditions have no conscious objection. So what if it was something and there were no conscious objections? How much do you think that matters? She seemed to really try to make her case there. And so I'm wondering, okay, let's say that the doctors who object to having to treat people that are vaccine injured by the covid vaccines, which will definitely arise, a hundred percent arise, if this would be allowed to pass and they can't opt out. I guess no doctor has to offer an objection, but let's say they don't have a conscious sort of objection defense that the other side can raise. So what happens in those cases?
Liz Cavell:
Well, I don't know. It's like she was specifically drawing on federal statutory protections that exist, right? But I also think there was sort of an argument embedded there, or at least—this is probably me projecting—but of, "Hey, court, you are literally creating an entire constitutional jurisprudence that makes it impossible for any employer ever to force anyone to do anything against their religion." Just thinking about Groff v. DeJoy and all these cases where the court is creating an American framework of law that makes it so that religious objectors don't have to do anything they don't want to, no one can make them. And so I felt embedded in that was sort of like, there's this argument of we have federal protections written into our law that make this situation almost impossible to arise in this context. And also to me, the subtext there was like, and as you well know, because you are the ones enforcing this on all of us, employers don't have a lot of berth to force doctors or anyone else to do anything against their conscience. So I don't know. I kind of thought of it as broader than just what statutory exceptions are on the book, although I know that's kind of how the argument was framed
Alison Gill:
That makes a lot of sense.
Liz Cavell:
It'd be pretty bold of one of these justices in Alito to come back with any sort of argument that doctors or any other medical employee is not protected, doesn't have religious conscience protections in their workplace. I mean, that's just so out of step with every case they've ever heard that involves any kind of situation like this in any context, not in the abortion box.
Alison Gill:
I think that's a really good point. They care a lot about this issue, is sort of the point that she recognized, I think if I can project. They care a lot about this issue, and she's saying, basically, well, there's already a way this is handled in federal law, so this is not necessary to provide the protections because those protections already exist basically. So it's trying to remove them from the table, but at the same time, that's not the basis of the decision that she's hoping for. I think that's what we're saying.
Liz Cavell:
Yeah, I think that's right.
Well, before we run out of time recording today, I really want to point out for our listeners how many times the Comstock Act was brought up in oral arguments. So based on just being a normal person, I would've expected zero times
Rebecca Markert:
Why? It's just like a 19th century law.
Liz Cavell:
And I will say I did note Hirsh, our wonderful, thorough legal fellow, who briefed and outlined the case for us in preparation for today, did flag that actually one of the seven or eight claims that was made in this case in the District Court did involve the Comstock Act. So it's not totally not relevant to the case, but this is not the basis on which any of the injunctive relief was granted. It's not an issue that the court agreed to take up on cert, but yet, you had two justices, Alito and Thomas who both brought up repeatedly in their questioning whether or not, or how or doesn't the Comstock Act actually affect your behavior here. So with Danco, notably Justice Thomas jumped in to say, well, maybe the government has some different immunity type arguments, but you're just a private corporation that's mailing mifepristone through the mail. Aren't you just violating the Comstock Act? Which I mean, maybe we should define the Comstock Act for those listeners who are not 150 years old.
Alison Gill:
Yeah, I was about to say–
The Comstock Act makes mailing any obscene or crime inducing material to be illegal, so it bans making abortion drugs, contraceptives, other things that are for indecent or immoral use, which is also defined to include anything having to do with murder, arson, or assassination. But it's been narrowed by usage and by the courts over the years to mean that it just makes it illegal to mail illegal material that's related here. But the argument is the text of the law still says in the statute that it is basically illegal to mail things that might cause obscene or crime inducing, such as abortion inducing material or contraception for that matter.
Liz Cavell:
So it's extremely old. The law was from when, like 18–?
Alison Gill:
1873
Liz Cavell:
1873. Good times for women. So it's extremely old. Even though Justice Alito said in oral arguments, this is not some obscure law that I'm like, that's exactly what it is. It's an obscure law from 1873. But what he means is it's not repealed. It's not dead law. It's a law that's on the books that exists. And to me, it was startling how many times, I mean, maybe they brought it up in questioning attorneys three times each. That's a lot of times in a case that's not about the Comstock Act and in a law that is universally agreed upon amongst lawyers and judges, at least for the last a hundred years to be dead letter law, just not enforceable or just not enforced, and they're reviving it as basically another tool that could be used to make mifepristone illegal. Signaling. That's what I viewed it as. It's not relevant to the issues before the court. So why are they bringing it up and arguing about it so openly? I mean, they were fixated on it, in my view, and it's signaling to future anti-abortion litigants, anti-abortion, politicians. Hey, this, the–
Alison Gill:
Trump administration, if they win.
Liz Cavell:
Future far right, political actors including a future administration. Hey, the Comstock Act is still on the books. It's right there.
Alison Gill:
Use it.
Liz Cavell:
So that was a bummer. That was noteworthy to me, something I didn't expect that came out fast. I mean, I think it was one of the first things that Alito brought up when the Solicitor General started her argument. And so it came out fast and often by those two justices who are the only ones that have zero shame. But I wouldn't put it past some of the other extremely conservative justices to, in some future hellscape, to sign on to some future case that uses the Comstock Act to justify some insane anti-abortion action. And so that just really jumped out at me.
Rebecca Markert:
That is another furious typing that I saw from Justice Thomas or from Justice Alito, maybe both of them together, just basically outlining how a future litigant could use this act the same way that Gorsuch is saying, “hey, here are the future plaintiffs that we want to see in cases that we really want to hear.” Like, how we can completely eviscerate the Establishment Clause. How can we get rid of same-sex marriage? How can we do all of this stuff?
Liz Cavell:
Bring back the Comstock Act, all the hits. Well, that's actually that image of Justice Thomas and Alito furiously typing with their two pointer fingers on a typewriter is a good segue into how we think the case is going to break down. Obviously, you can tell we think this case is going to be disposed of, probably dismissed on standing grounds and maybe with some concurrences, but I think there's the potential for Alito and Thomas to fully dissent from that case disposition. But I don't see it being much more split than that except for all the concurrences that we forecasted.
Rebecca Markert:
Right? I think it's 7-2. That's my prediction.
Alison Gill:
I'm not going to try to guess Alito and Thomas's votes here. I don't think that's a worthwhile use of anyone's time, but I think it'll be kicked out on standing. I worry that they'll talk about, and whether it's dicta or whether it's binding precedent, that this denial of care slash conscience exemption aspect matters for the purposes of standing or that it is binding on EMTALA. All of that would be bad.
Liz Cavell:
Yeah, I agree. Like I said, nothing comes free. There's a lot of potential for some really bad ancillary stuff to be embedded in even a majority opinion. What would be truly good is just a picture of a boot kicking the plaintiffs in the ass away from the Supreme Court. There should be no words that need to be spilled. You know what I mean? It's like, no, you don't have standing. Your case is dismissed.
Alison Gill:
That's a future Sotomayor sort of dissent, you know? Right now she's the first one to include a picture. Soon it'll be all sort of, this is so asinine. I can't.
Liz Cavell:
Yeah, just, well, yeah. No, Rebecca, it'll be clip art because it's the Supreme Court.
Rebecca Markert:
That's right. That's right.
Alison Gill:
Oh, fair. Yeah.
Liz Cavell:
Anyway, so I think you're right, Alison. Whatever all the words are that garners a majority of this court, there's going to be some troubling little asides. And I think it's important to end on the fact that the court didn't even have to take up this case and hear argument. They could have vacated or dismissed on standing without briefing. No one needed to argue any words about this at all to see how this case should be disposed of. So the fact that they took it is all just of a piece with this court trying to do their reputational repair work and messaging cases so that they can look moderate and look like they're doing something good or reasonable, and I don't think any of us benefit from cases that do that work for the court.
Alison Gill:
That's a great point.
Liz Cavell:
That's my final thought. So that's it for today's episode. I'm Liz Cavell.
Rebecca Markert:
I'm Rebecca Markert.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
If you haven't already, please follow us on our socials. We're on Facebook, Instagram, and X. Please also remember to let us know how you're liking the show by leaving a review. You can also find us at we-dissent.org.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Special thanks to FFRF Fellow Hirsh Joshi, who assisted with producing this episode. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
