Supreme Court Hears Oral Arguments in Mifepristone Case

From the The Morning Dispatch on The Dispatch

Happy Thursday! With March Madness’ Sweet 16 round set to begin tonight, let’s check in on the TMD pool standings.

There were more than 1,200 brackets entered into the pool, and here’s where things currently stand:

1. B. Jones

2. Alex D. (Dispatch fact checker)

3. Kim W.

4. Carla H. (mother-in-law of an unnamed person at The Dispatch)

…

10. Stephen H. (father of an unnamed person at The Dispatch)

We promise we aren’t rigging the results to save money on postage!

Quick Hits: Today’s Top Stories

• A panel of judges on the 5th U.S. Circuit Court of Appeals on Tuesday ruled 2-1 in favor of extending a hold on the enforcement of Texas law S.B.4, which, if it were to go into effect, would allow Texas police to arrest people suspected of crossing the border illegally and give state judges the power to order people be deported. Last week, the Supreme Court ruled that the law—which the Biden administration has challenged as unconstitutional under the supremacy clause—could go into effect as the appeals court reviewed the case. The 5th Circuit almost immediately put the stay back in place after the Supreme Court’s decision and will hear arguments regarding the law’s constitutionality on April 3.

• The United Nations published a report on Tuesday detailing the human rights situation in Ukraine and determining, among other findings, that Russian troops had executed perhaps more than 30 prisoners of war in recent months. Based on interviews with 60 recently released Ukrainian prisoners of war, the Office of the U.N. High Commissioner for Human Rights also determined that Russian troops frequently tortured PoWs and subjected them to sexual violence.

• The Walt Disney Company on Wednesday reached a settlement in Florida with the Central Florida Tourism Oversight District—the body backed by Gov. Ron DeSantis where Walt Disney World is located. More than a year ago, DeSantis replaced Disney’s previous special tax district—which had allowed Disney to functionally self-govern—with a new system and a board including several DeSantis allies. In the settlement presented to the current board members of the district, Disney said it would drop its suit to enforce agreements with the previous board, which had limited the current board’s authority over new development, acknowledging they are null and void. “A year ago, people were trying to act like all these legal maneuvers were all going to succeed, and the reality is here we are a year later, not one of them has succeeded,” DeSantis said of Disney’s efforts. “Every action that we’ve taken has been upheld in full, and the state is better off for it.”

• Israeli Prime Minister Benjamin Netanyahu has reportedly reversed course, deciding Wednesday to move ahead with sending two top aides to the U.S. as early as next week to discuss the Israel Defense Forces’ looming ground operation in Gaza’s southernmost city of Rafah. Netanyahu had canceled the planned trip earlier this week after the U.S. failed to veto a U.N. Security Council resolution calling for an immediate ceasefire. Meanwhile, the U.S. and the United Kingdom on Wednesday imposed sanctions on Gaza Now, an online news outlet based in the Strip that has been fundraising in support of Hamas, and key figures and firms involved in the effort.

• A California judge on Wednesday recommended John Eastman, one of the lawyers at the center of former President Donald Trump’s efforts to overturn the results of the 2020 election, be disbarred. In a 128-page ruling, the judge found that Eastman had violated professional ethics and “exhibited gross negligence” in positing that Vice President Mike Pence had the power to overrule the 2020 election results and declare Trump the winner on January 6, 2021. Though he can appeal, Eastman will lose his law license in California within three days of the ruling.

• Former U.S. Sen. Joe Lieberman died at the age of 82 on Wednesday following complications from a fall. Former Vice President Al Gore’s running mate in 2000, Lieberman was the first Jewish candidate on a major party’s presidential ticket. The centrist Democrat, who represented Connecticut for 24 years in the Senate, was known for his hawkish foreign policy and bipartisan friendships, including a close relationship with the late Republican Sen. John McCain.

• Daniel Kahneman, a Nobel-prize-winning psychologist, pioneer in the study of behavioral economics, and author of Thinking, Fast and Slow, died Wednesday at the age of 90. His work with cognitive psychologist Amos Tversky broke ground in economics—though Kahneman never took a single class in the subject—by positing that humans can and do act irrationally based on mental biases.

Justices Sidestep Mifepristone Landmine

The Supreme Court heard oral arguments on Tuesday in FDA v. Alliance for Hippocratic Medicine, the case supposedly deciding the fate of how the most commonly used abortion drug in the country, mifepristone, is prescribed. The justices’ questioning, however, suggested their decision will ultimately hinge not on substantive objections to U.S. Food and Drug Administration (FDA) regulations around access to the drug but on what appears to the layperson to be legal minutiae—in this case, whether the party bringing the case has standing, or the legal grounds to file suit in the first place.

The arguments the Supreme Court heard on Tuesday represented the first abortion-related case before the body since Dobbs v. Jackson Women’s Health Organization in 2022, which ultimately overturned Roe v. Wade. Consequently, it has garnered substantial attention and scrutiny. But contrary to some of the coverage of the proceedings this week, the legality of mifepristone itself was not before the court: The justices are only considering whether FDA rules around the drug should be rolled back to their pre-2016 status. In theory, the ruling could certainly affect how people are able to obtain mifepristone—like via telemedicine prescriptions—but the drug’s approval isn’t a question before the justices.

How did the case make its way to the Supreme Court? The Alliance for Hippocratic Medicine (AHM), a group of pro-life doctors and medical associations, filed suit in November 2022. The group—represented by the Alliance for Defending Freedom (ADF), a Christian conservative legal advocacy organization—sued the FDA, challenging the agency’s approval of mifepristone back in 2000 and subsequent loosening of regulations around access to the drug. In 2016, the FDA extended how long into a pregnancy mifepristone could be used—from seven weeks gestation to 10 weeks—and in 2021, the agency eliminated requirements for an in-person doctor’s visit before the drug could be prescribed, among other changes.

While mifepristone is a widely employed method of abortion, it’s controversial. Abortions via drugs like mifepristone now account for 63 percent of all abortions in the United States, up from 53 percent in 2020, according to the Guttmacher Institute, a pro-abortion access research group.

Most pill abortions involve two drugs—first, mifepristone to dilate the cervix and block a pregnancy-sustaining hormone, then, misoprostol to induce contractions. The vast majority of women who take these drugs don’t suffer serious complications—the FDA data found about 85 percent of patients report side effects like fever or nausea, but serious outcomes like sepsis or hospitalization occur in less than 0.5 percent of cases. The FDA has recorded only 32 deaths among women in the U.S. using mifepristone for an abortion between 2000 and 2022, and the agency noted that the deaths “cannot with certainty be causally attributed to mifepristone.”

But as we wrote in March of last year:

AHM—citing material from the Charlotte Lozier Institute—argued that the FDA approval was unjustified given health and safety concerns surrounding the drug’s use. U.S. District Judge Matthew Kacsmaryk sided with the pro-life doctors and ruled in April of last year that the FDA had improperly approved mifepristone, issuing a nationwide injunction on the drug’s use. “FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions,” Kacsmaryk wrote in a decision, which marked the first time a federal court has gone against the FDA’s judgment concerning stipulations for using a drug.

The Supreme Court quickly stayed the injunction before it took effect, preserving the status quo while an appeal proceeded. The U.S. 5th Circuit Court of Appeals ruled last August the statute of limitations had expired for a challenge to mifepristone’s 2000 approval, but agreed with AHM that the FDA’s changes in 2016 and 2021 were unwarranted based on safety concerns and thus likely violated the arbitrary and capricious test in the Administrative Procedures Act—a statute specifying how executive agencies make and change regulations.

In hearing oral arguments Tuesday over whether the regulations should revert to their pre-2016 status quo, the justices focused relatively little on the merits of the FDA changes and instead questioned the AHM lawyers extensively about their standing—whether they can prove concrete harm to the group of doctors. The government, represented by Solicitor General Elizabeth Prelogar, argued the challengers “have to identify a specific doctor who faces imminent harm” from the FDA’s regulatory regime. “Respondents may not agree with that choice, but that doesn’t give them Article III standing or a legal basis to upend the regulatory scheme,” she told the court.

AHM argued they have standing because the 2016 and 2021 changes led to an increase in the number of abortions via drugs like mifepristone and the number of abortion complications, putting pro-life doctors working in hospitals where patients would come with emergency abortion complications into situations where they would have to “choose between helping a woman with a life-threatening condition and violating their conscience.”

The government held that such a theory of harm is too far removed from the FDA’s action. “FDA is not directing the women who take the drug to go seek out care from these specific doctors,” Prelogar told the court. “[AHM’s] theories rest on a long chain of remote contingencies. Only an exceptionally small number of women suffer the kind of serious complications that could trigger any need for emergency treatment. It’s speculative that any of those women would seek care from the two specific doctors who asserted conscience injuries.” Prelogar also argued that doctors are already protected by federal rights of conscience protections from being forced to perform abortions, noting that hospitals have obligations to provide care but that they can make arrangements to protect staff with conscience objections.

Erin Hawley—the ADF attorney representing the doctors (and Republican Sen. Josh Hawley’s wife)—countered that in certain emergency situations, a pro-life doctor could be forced to scrub into an operating room without knowing whether they would have to help complete an elective, medicated abortion.

The justices also seemed skeptical that the challengers’ proposed remedy—a nationwide injunction limiting access to the drug—was the right solution to the alleged harm. “Some of the conservative justices thought the remedy here, which is basically [to] force the FDA to reverse its approval process, seems like a very broad remedy for a very particular set of alleged injuries,” Michael Moreland, a law professor at Villanova University focusing on constitutional law and bioethics, told TMD.

Justice Neil Gorsuch, who has a history of being a curmudgeon over national injunctions, took issue with the remedy. “We’ve had, one might call it, a rash of universal injunctions,” he said. “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.”

Overall, the justices’ lines of questioning and extended focus on standing didn’t spell likely success for the AHM. “It sure didn’t feel like a case where there is a majority that would coalesce around any reason that would, in the end, side with the challengers,” Moreland told TMD. A decision on the case is expected this summer, and, should the court decide the doctors do not have standing, the justices could dismiss the case and sidestep the question of whether the FDA’s regulatory changes are lawful.

As Jonathan Adler, a professor at Case Western Reserve University School of Law, noted earlier this week, “If this case is resolved on standing grounds, it will be an important standing decision, but it will resolve very little about the broader issue of abortion and the use or availability of mifepristone.”

Worth Your Time

• Writing for Foreign Policy, Adrian Karatnycky argued that Russia’s predetermined election—and the killing of Alexei Navalny that preceded it—marked the full reversion to Soviet-era political repression not seen since Joseph Stalin. “State election officials reported that 87 percent of Russians had cast their vote for Vladimir Putin in national elections, giving the Russian president a fifth term in office,” Karatnycky wrote. “Not only were many of the reported election numbers mathematically impossible, but there was also no longer much of a choice: All prominent opposition figures had been either murdered, imprisoned, or exiled. Russia’s return to Soviet practice goes far beyond elections. A recent study by exiled Russian journalists from Proekt Media used data to determine that Russia is more politically repressive today than the Soviet Union under all leaders since Joseph Stalin. During the last six years, the study reports, the Putin regime has indicted 5,613 Russians on explicitly political charges—including ‘discrediting the army,’ ‘disseminating misinformation,’ ‘justification of terrorism,’ and other purported crimes, which have been widely used to punish criticism of Russia’s war on Ukraine and justification of Ukraine’s defense of its territory. This number is significantly greater than in any other six-year period of Soviet rule after 1956—all the more glaring given that Russia’s population is only half that of the Soviet Union before its collapse.”

• John Podhoretz eulogized his friend, former Sen. Joe Lieberman, in Commentary magazine. “But for the wont of a few hundred votes, Joe Lieberman would have become vice president of these United States—and a pathbreaking figure not only in the history of American politics as the first Jew on a presidential ticket but in the annals of Jewry,” he wrote. “He would have been one of the greatest credits to our people the world would ever have known. Well, who needed the vice presidency for that. As it was, and as he was, Joe Lieberman was that person. What a guy. What. A. Guy. As a man in his private life and his everyday relationships, he defined the word ‘mensch.’ As a Jew, he spent his life as a devoted follower of the obligations of Orthodoxy. As a public servant in Connecticut and Washington, he was never anything less than a man who served his state and served his country faithfully, rigorously, honestly, and with true honor. … His career as an effective legislator was based on his determination to bridge gaps and seek to find solutions to social and political problems besetting America—while at the same time demonstrating how it was possible both to be a dedicated and patriotic American, a dedicated and faithful Jew, and a dedicated and determined Zionist. He was cheerful, jaunty, very funny, and had about him a kind of easy and relaxed cool—in odd ways he would remind me of an image of Sinatra on one of Frank’s upbeat album covers. There will be more to say about his contributions to American life and American politics—and what it means that it may be some time until we see his like again.”

Presented Without Comment

Washington Post: Was the 2020 Election Stolen? Job Interviews at RNC Take an Unusual Turn.

Happy Opening Day ⚾

Toeing the Company Line

• In the newsletters: The Dispatch Politics crew covered RFK Jr.’s running-mate decision, Scott wrote (🔒) in favor of building more housing of all kinds, Jonah reflected on (🔒) what’s been lost in 21st-century parenthood, and Nick weighed in on the new Trump-endorsed Bible and what it says about how the former president views his own supporters.

• On the podcasts: Jonah is joined on The Remnant by social psychologist Jonathan Haidt to discuss the Gen Z mental health crisis, and Sarah and David recap the mifepristone oral arguments on Advisory Opinions.

• On the site: James C. Capretta marks the anniversary of the Affordable Care Act’s passage and Joseph Polidoro explains the risks of microplastics. Plus, Kevin interviews Michael Baumgartner, the Spokane County treasurer who’s running for Congress in Washington state.

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