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Republicans Have a New Plan to Save the Supreme Court Abortion Pill Case
Hat tip, SCOTUSblog
WHAT WE'RE READING
The morning read for Monday, November 20
By Ellena Erskine
on Nov 20, 2023 at 9:54 am
{snip}
Republicans Have a New Plan to Save the Supreme Court Abortion Pill Case (Susan Rinkunas, Slate)
{snip}
Recommended Citation: Ellena Erskine, The morning read for Monday, November 20, SCOTUSblog (Nov. 20, 2023, 9:54 AM), https://www.scotusblog.com/2023/11/the-morning-read-for-monday-november-20/
The morning read for Monday, November 20
By Ellena Erskine
on Nov 20, 2023 at 9:54 am
{snip}
Republicans Have a New Plan to Save the Supreme Court Abortion Pill Case (Susan Rinkunas, Slate)
{snip}
Recommended Citation: Ellena Erskine, The morning read for Monday, November 20, SCOTUSblog (Nov. 20, 2023, 9:54 AM), https://www.scotusblog.com/2023/11/the-morning-read-for-monday-november-20/
JURISPRUDENCE
Republicans Have a New Plan to Save the Supreme Court Abortion Pill Case
BY SUSAN RINKUNAS
NOV 17, 2023 1:11 PM
On the eve of this month’s off-year elections, the top lawyers in three states threw something of a Hail Mary pass: They went to the courtroom of one of the most notorious Trump judges in the country and asked to join the lawsuit that could revoke FDA approval of the abortion pill, mifepristone. That suit was filed almost a year ago, and we’re currently waiting to see if the Supreme Court will take up the case on appeal. Experts agree that the anti-abortion doctors don’t have standing to sue, and many people think the court will agree to hear the case and then rule against the doctors. ... That fact may explain why, on Friday, Nov. 3, the Republican attorneys general from Missouri, Kansas, and Idaho filed a motion to intervene in Judge Matthew Kacsmaryk’s court, claiming their states are also being injured by the approval of the abortion pill back in 2000. These Republican AGs are swooping in to join the case at the eleventh hour, and it certainly looks like they’re worried about SCOTUS ruling against the plaintiffs, doctors from the shadowy Alliance for Hippocratic Medicine.
Andrew Bailey of Missouri, Kris Kobach of Kansas, and Raúl Labrador of Idaho wrote in support of their motion that the Biden administration’s petition for the Supreme Court to hear the case “spends the brunt of its analysis attacking the private plaintiffs’ theories of standing.” But the group says they have their own standing claims—including that doctors are using “shield laws” to mail mifepristone to their residents, which harms their ability to enforce abortion restrictions—and they want to join the case at this late date merely for expediency’s sake. “Presenting all theories of standing at once ensures that this Court (or appellate courts) can more cleanly get to the merits of this incredibly important issue,” they write. “And intervention is certainly more efficient than the States bringing a separate lawsuit, the only alternative to intervention.”
That’s not the full picture of what’s going on here, said Steve Vladeck, a professor at the University of Texas School of Law and an expert on the court’s shadow docket. Vladeck said the AGs trying to intervene this late, and in district court, not at the Supreme Court, is so unusual as to be suspicious. “I think it’s a pretty transparent and transparently cynical attempt on the part of these three states to try to put the substance of this lawsuit on somewhat stronger procedural footing,” he said. “I think it’ll be obvious to everyone [litigating] that that’s what this is.” ... Before this intervention attempt, Vladeck said there was “broad consensus” that the most likely outcome would be the Supreme Court ruling that the Alliance for Hippocratic Medicine doesn’t have standing. That kind of ruling would avoid the underlying substantive questions about whether the FDA properly approved mifepristone, and updated its labeling. It’s “not at all obvious” to Vladeck that the states have a stronger standing argument than the AHM does. Instead, he said this is a long-shot attempt to get a favorable ruling from Kacsmaryk, who they rightfully view as a friendly judge.
{snip}
Now we have to wait and see what Kacsmaryk does. If he lets the states intervene in his court, they still have to request to join the case at the appeals level. Vladeck believes getting five justices to vote for that would be a hard sell. “I think that even justices who might be somewhat sympathetic [to the anti-abortion cause] aren’t going to be sympathetic to the transparent effort to manipulate their docket,” he said. (But if anyone were to agree, he said it would be Justices Clarence Thomas and Samuel Alito.) ... So we are, once again, in the unfortunate position of hoping this Supreme Court does the right thing.
Republicans Have a New Plan to Save the Supreme Court Abortion Pill Case
BY SUSAN RINKUNAS
NOV 17, 2023 1:11 PM
On the eve of this month’s off-year elections, the top lawyers in three states threw something of a Hail Mary pass: They went to the courtroom of one of the most notorious Trump judges in the country and asked to join the lawsuit that could revoke FDA approval of the abortion pill, mifepristone. That suit was filed almost a year ago, and we’re currently waiting to see if the Supreme Court will take up the case on appeal. Experts agree that the anti-abortion doctors don’t have standing to sue, and many people think the court will agree to hear the case and then rule against the doctors. ... That fact may explain why, on Friday, Nov. 3, the Republican attorneys general from Missouri, Kansas, and Idaho filed a motion to intervene in Judge Matthew Kacsmaryk’s court, claiming their states are also being injured by the approval of the abortion pill back in 2000. These Republican AGs are swooping in to join the case at the eleventh hour, and it certainly looks like they’re worried about SCOTUS ruling against the plaintiffs, doctors from the shadowy Alliance for Hippocratic Medicine.
Andrew Bailey of Missouri, Kris Kobach of Kansas, and Raúl Labrador of Idaho wrote in support of their motion that the Biden administration’s petition for the Supreme Court to hear the case “spends the brunt of its analysis attacking the private plaintiffs’ theories of standing.” But the group says they have their own standing claims—including that doctors are using “shield laws” to mail mifepristone to their residents, which harms their ability to enforce abortion restrictions—and they want to join the case at this late date merely for expediency’s sake. “Presenting all theories of standing at once ensures that this Court (or appellate courts) can more cleanly get to the merits of this incredibly important issue,” they write. “And intervention is certainly more efficient than the States bringing a separate lawsuit, the only alternative to intervention.”
That’s not the full picture of what’s going on here, said Steve Vladeck, a professor at the University of Texas School of Law and an expert on the court’s shadow docket. Vladeck said the AGs trying to intervene this late, and in district court, not at the Supreme Court, is so unusual as to be suspicious. “I think it’s a pretty transparent and transparently cynical attempt on the part of these three states to try to put the substance of this lawsuit on somewhat stronger procedural footing,” he said. “I think it’ll be obvious to everyone [litigating] that that’s what this is.” ... Before this intervention attempt, Vladeck said there was “broad consensus” that the most likely outcome would be the Supreme Court ruling that the Alliance for Hippocratic Medicine doesn’t have standing. That kind of ruling would avoid the underlying substantive questions about whether the FDA properly approved mifepristone, and updated its labeling. It’s “not at all obvious” to Vladeck that the states have a stronger standing argument than the AHM does. Instead, he said this is a long-shot attempt to get a favorable ruling from Kacsmaryk, who they rightfully view as a friendly judge.
{snip}
Now we have to wait and see what Kacsmaryk does. If he lets the states intervene in his court, they still have to request to join the case at the appeals level. Vladeck believes getting five justices to vote for that would be a hard sell. “I think that even justices who might be somewhat sympathetic [to the anti-abortion cause] aren’t going to be sympathetic to the transparent effort to manipulate their docket,” he said. (But if anyone were to agree, he said it would be Justices Clarence Thomas and Samuel Alito.) ... So we are, once again, in the unfortunate position of hoping this Supreme Court does the right thing.
