“If the Alliance for Hippocratic Medicine and other plaintiffs lack standing, why did the court take the case in the first place, and why did it take so long (three months) to figure out this obvious legal standard?”
— Richard Dasheiff, M.D., Plano, Texas
Hi Richard,
Both the trial and the appeals courts in the mifepristone case found that the anti-abortion plaintiffs had legal standing to bring their lawsuit. So if the Supreme Court hadn’t taken the case and reversed that clear legal error, then that would have permitted the challenge that endangered access to the medication. That’s why the federal government appealed to the Supreme Court for the reversal that came Thursday in FDA v. Alliance for Hippocratic Medicine.
As for the timing of the decision following the March 26 hearing, that requires some educated speculation. But it’s not unusual in the broader scheme of things.
The March 26 hearing to the June 13 decision timeline isn’t very long for a Supreme Court case. That’s especially so in a significant appeal that doesn’t hinge on the court ruling by a particular date — as opposed to cases where, for example, a specific law is about to take effect imminently or someone is about to be executed. The lower court ruling in the mifepristone case was on hold pending Supreme Court review.
The case was also argued toward the end of the court’s term, which starts in October and typically sees the final decisions issued by July. By this point in the term, the justices’ work has piled up as they seek to issue their rulings, which they publish on a rolling basis. Several crucial appeals are still awaiting a decision. Some of those most significant cases weren’t argued until April, including Donald Trump’s criminal immunity claim and another important abortion case involving Idaho’s near-total ban.
The latter case, Moyle v. United States, was argued on April 24. Justice Brett Kavanaugh’s unanimous mifepristone ruling cited comments by the government’s lawyer from that late-April hearing that reiterated conscience protections for anti-abortion doctors. Whatever effect those comments had on the mifepristone case outcome, Kavanaugh found them worth referencing in his decision — whatever delay, if any, that added to its publication.
That’s all to say that, however obvious the mifepristone appeal’s conclusion, the decision was crafted against the broader backdrop of the term and happenings within the court. There’s also the reality that the court doesn’t always act sensibly, including when it comes to legal standing. We saw that recently when the court struck down student debt relief last term while crediting a dubious standing rationale. We also know that the ultimate decision in this case was unanimous (with Justice Clarence Thomas issuing a concurring opinion). But we don’t know the internal deliberations leading to this result, including whether there was any disagreement that needed smoothing over to reach this outcome. After all, this is the court that overturned Roe v. Wade, so when it comes to precedent and abortion in particular, we never know what the court will do until we see it for ourselves. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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