Justice Jackson Was Partly Mistaken About Mifepristone

On Monday evening, Justices Kavanaugh and Jackson appeared at a joint event at the D.C. Circuit. Several press outlets reported on what was described as a “polite but forceful back-and-forth” concerning the emergency docket. Here is the summary from the New York Times:

Justice Kavanaugh told those gathered that he thought the justices were being asked more frequently to weigh in on presidential actions because gridlock in Congress has led presidents to do more through executive orders, which have then been challenged in court. It is an argument he has made previously from the bench and in public appearances.

He added that such emergency requests are “not a new phenomenon” and had been on the rise during the Biden administration as well. He pointed to an emergency request by the Biden administration to keep in place access to a widely available abortion drug, mifepristone, as a lower court heard a challenge to the drug’s approval.

Justice Jackson, however, pushed back and suggested the court’s actions under Mr. Trump represented a departure.

Previously, she argued, the court had used emergency orders largely to maintain the status quo. Yet in the Trump administration, she said the court was signing off on new policies. In the mifepristone example, she said, the drug had already been in use for decades, and the Biden administration wanted to maintain access, not seek a new policy or change.

By agreeing to take on such emergency applications, she said the justices had signaled a willingness to hear the cases before they had worked their way through the lower courts, creating “a warped” kind of proceeding and “a real unfortunate problem.”

“I think it is not serving the court or our country well at this point,” Justice Jackson said, to applause from many in the audience.

Not quite. The Plaintiffs in Alliance for Hippocratic Medicine v. FDA challenged a series of actions concerning mifepristone between 2000 and 2021. The District Court found that all of those actions could be challenged within the statute of limitations. But the Fifth Circuit found that only actions taken in 2016 and 2021 were subject to challenge. So there was an Obama-era policy at issue, and another Biden-era policy. Let’s quote from the summary of the facts from Justice Kavanaugh’s majority opinion:

In 2021, FDA again relaxed the requirements for Mifeprex and generic mifepristone. Relying on experience gained during the COVID–19 pandemic about pregnant women using mifepristone without an in-person visit to a healthcare provider, FDA announced that it would no longer enforce the initial in-person visit requirement. . . . The Court of Appeals next concluded that plaintiffs were not likely to succeed on their challenge to FDA’s 2000 approval of Mifeprex and 2019 approval of generic mifepristone. So the Court of Appeals vacated the District Court’s order as to those agency actions. But the Court of Appeals agreed with the District Court that plaintiffs were likely to succeed in showing that FDA’s 2016 and 2021 actions were unlawful.

Justice Jackson was partly mistaken. The Biden Administration enacted a new policy concerning mifepristone in 2021. It was challenged in 2022, which was within the statute of limitations. It is certainly true that a District Court did not enter a unappealable universal TRO, as has become the norm during the second Trump Administration. But who should we credit for exercising some restraint? Judge Matthew Kacsmaryk stayed his ruling to permit an orderly appeal to the Fifth Circuit.

The Court STAYS the applicability of this opinion and order for seven (7) days to allow the federal government time to seek emergency relief from the United States Court of Appeals for the Fifth Circuit.

All. for Hippocratic Med. v. U.S. Food & Drug Admin., 668 F. Supp. 3d 507, 560 (N.D. Tex.), aff’d in part, vacated in part, 78 F.4th 210 (5th Cir. 2023), rev’d and remanded sub nom. Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 144 S. Ct. 1540, 219 L. Ed. 2d 121 (2024), and vacated and remanded, 117 F.4th 336 (5th Cir. 2024).

As longtime readers might recall, it was common for District Court judges to stay their rulings against the Biden Administration. Alas, rulings against President Trump have not received similar courtesies requiring even more frantic trips to the Supreme Court.

The Fifth Circuit then granted a partial stay, and the Supreme Court, on the emergency docket, granted a complete stay of the Fifth Circuit’s ruling.

Here, Justice Jackson’s line (which apparently got applause) was partly mistaken.

Justice Kavanaugh continues his service as the leading Justice who defends the Court’s work.

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