It ain't over 'til it's over

Why the order granting intervention in the mifepristone case is wrong

On January 12, 2024, Judge Matthew Kacsmaryk granted the motion of Idaho, Kansas, and Missouri to intervene in Alliance for Hippocratic Medicine v. FDA. According to the states, the purpose of this motion is to allow the states to continue pursuing the case even if the Supreme Court holds that the private plaintiffs lack standing. Judge Kacsmaryk’s ruling is an abuse of discretion several times over.

(This is Dall-E’s effort to depict Idaho intervening in a fight, in geometric abstract style. I like this one.)

A quick refresher

Many of you are likely familiar with this case, as I have written about it several times before. For those who are not, the case concerns mifepristone, a drug used to terminate pregnancies. The FDA approved mifepristone in 2000, subject to several safety restrictions. In 2016, the FDA loosened some of those safety restrictions: it increased the gestational age limit from 7 to 10 weeks, reduced the number of required in-person clinic visits to one, and allowed non-physicians to prescribe it. In 2021, the FDA determined that in-person dispensing was unnecessary, and in 2023, the FDA removed the in-person dispensing requirement.

The plaintiffs in Alliance for Hippocratic Medicine v. FDA are doctors and organizations who oppose abortion and want mifepristone to be banned nationwide. In April 2023, they persuaded the district court to issue an order overturning the FDA’s 23-year-old decision approving mifepristone. In the same order, the district court also held that the FDA’s post-2000 decisions loosening safety restrictions were illegal as well. The FDA sought an emergency stay from the Fifth Circuit, and the Fifth Circuit granted the stay with respect to the FDA’s 2000 approval order, but denied the stay with respect to the FDA’s post-2000 actions loosening safety restrictions. The practical effect of that order was that mifepristone would stay legal, but the FDA’s decisions loosening safety restrictions from 2016 to 2023 would be rolled back. The Supreme Court then stayed the district court’s order in its entirety pending Supreme Court review.

The government appealed the district court’s order to the Fifth Circuit, which issued a decision similar to its order at the stay stage—it reversed the district court as to the FDA’s 2000 approval order, but affirmed the district court as to the FDA’s post-2000 actions. The government filed a petition for certiorari, which the Supreme Court granted. Oral argument will likely be in March, and a decision will likely come down by June.

As I have repeatedly argued, the plaintiffs should have gotten no relief, because, among other things, they lack standing. The plaintiffs’ theory is that unspecified doctors might prescribe mifepristone to unspecified pregnant women, who might experience medical complications and then wander into an emergency room, wherein they might randomly encounter one of the plaintiff-doctors, causing the plaintiff-doctors to expend resources or experience a conscience violation. A wall of Supreme Court case law establishes that this theory is far too speculative to establish standing.

The Supreme Court will decide whether the plaintiffs have standing. Given that the Supreme Court has already granted a stay—which implies that the FDA is likely to prevail—there is a good chance the Supreme Court will hold they do not.

What always was, can never be

In November 2023, apparently seeing the writing on the wall, Idaho, Kansas, and Missouri filed a motion to intervene in the district court. The stated purpose of this motion is to ensure that, if the Supreme Court holds that the private plaintiffs lack standing, the states can pick up the baton and continue prosecuting the case. The states’ motion isn’t subtle about this. The first three sentences of the motion’s introduction are as follows:

Proposed Intervenor States seek to intervene in this motion to preserve their interests and seek judicial efficiency. The Federal Government’s recent petition for certiorari spends the brunt of its analysis attacking the private plaintiffs’ theories of standing. But in this motion, the States press sovereign and economic harms that cannot be asserted by private plaintiffs.

And then the last sentence of the introduction insists that the “private plaintiffs cannot assert [the states’] rights, and if an appellate court vacates the preliminary injunction on standing grounds, or this Court declines to grant permanent injunctive relief on standing grounds, the States’ interests will be harmed.”

What interests do the states seek to protect? They assert extremely speculative economic harms—e.g., that even if mifepristone is illegal under state law (as it is in Missouri and Idaho), a pregnant resident of those states might obtain mifepristone in a different state and return home or perhaps obtain it illegally. According to the states, the mifepristone might cause this hypothetical pregnant woman to experience complications, which might cause her to go to an emergency room at a hospital that receives state funds, which might cause the state to pay for her care and hence lose money.

The states also assert purportedly “sovereign” and “quasi-sovereign” harm, highlighting the statistic that 2,883 women traveled from Missouri (where abortion is generally illegal) to Kansas (where abortion is generally legal) in order to obtain abortions. OK so… Missouri’s argument is that even though abortion is illegal in Missouri, mifepristone should be banned or limited in all 50 states in order to prevent its citizens from crossing state lines to obtain abortions in states where it is legal. And Kansas’ argument is that even though abortion is legal in Kansas, the Kansas AG doesn’t like the law of his own state and therefore wants to limit women’s access to mifepristone nationwide in order to make it harder for Kansans to obtain legal abortions. Good thing Dobbs returned the issue of abortion to the states!

The states’ standing theories aren’t much better than the private plaintiffs’ standing theories. But even setting that point aside, there is a more fundamental problem with the states’ motion. If the private plaintiffs lack standing, then the states can’t intervene. It’s black-letter law that a party can’t intervene in a lawsuit unless the court had jurisdiction over the lawsuit at its inception. Harris v. Amoco Prod. Co., 768 F.2d 669, 675 (5th Cir. 1985) (“It is equally well-settled that an existing suit within the court’s jurisdiction is a prerequisite of an intervention, which is an ancillary proceeding in an already instituted suit” (cleaned up)). Article III is jurisdictional, so if the private plaintiffs lack standing under Article III, then there was no “existing suit within the court’s jurisdiction.” So the states’ case for intervention—which hinges on the possibility that the private plaintiffs might lack standing—completely collapses.

Usually, would-be plaintiff-intervenors have little reason to care about this doctrine—if the original plaintiffs lack standing, then the would-be intervenors can simply file their own lawsuits. Here, though, the doctrine matters. Idaho, Kansas, and Missouri are free to file their own lawsuits, but they’d have to do so in a jurisdiction where venue is proper—i.e., one that has some connection to their lawsuit. And Idaho, Kansas, and Missouri are located in Idaho, Kansas, and Missouri, respectively. The intervenor-states have zero connection to Amarillo, Texas, where Judge Kacsmaryk sits. And of course, that’s the judge they want. The only way the states can get him is by glomming onto the private plaintiffs’ lawsuit.

In light of the requirement that the court have jurisdiction over the originally-filed lawsuit, the FDA filed a motion asking Judge Kacsmaryk to delay consideration of the states’ intervention request until the Supreme Court issues its decision. The FDA’s motion makes the sensible point that if the Supreme Court finds that the plaintiffs lack standing, then the states’ intervention request will necessarily have to be denied, so the court should wait and see what the Supreme Court says.

In response, the states argue that as long as Judge Kacsmaryk gets out in front of the Supreme Court and grants the motion to intervene before the Supreme Court rules that the private plaintiffs lack standing, then the states would be good to go because a Supreme Court ruling could not “retroactively invalidate an order granting intervention.” In an impressively chutzpadik flourish, they characterize the FDA’s argument to the contrary as being “novel.”

The states’ argument is ridiculous. If the Supreme Court holds that the plaintiffs lack standing, that holding would mean the plaintiffs always lacked standing, and the district court never had jurisdiction over the lawsuit. When the Supreme Court holds that a lower-court judgment is incorrect, it deprives that lower-court judgment of effect. Thus, any lower-court orders finding that the plaintiffs had standing would no longer be in force and could no longer justify an order granting intervention. That’s what it means to “reverse” a judgment. There is nothing “retroactive” about applying a Supreme Court ruling in the very case that went up to the Supreme Court.

Anyway, Judge Kacsmaryk denies the FDA’s motion to delay consideration of the intervention request, because of course Judge Kacsmaryk denies the FDA’s motion to delay consideration of the intervention request. He does not give any reason for this, so I suppose we’ll have to wait and see how he deals with this issue going forward.

It wasn’t me

Let’s take a look at Judge Kacsmaryk’s reasoning granting the states’ motion to intervene.

Judge Kacsmaryk rules in the states’ favor on both intervention as of right, which for the lawyers in the audience is Federal Rule of Civil Procedure 24(a), and permissive intervention, which is Rule 24(b). Both Rule 24(a) and Rule 24(b) require a motion to intervene to be “timely,” so let’s start there.

If you thought courts couldn’t come up with a four-factor balancing test for whether a motion to intervene is “timely,” then, child, you haven’t been a lawyer long enough. Here are the Fifth Circuit’s factors in all their glory:

(1) The length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before [it] petitioned … to intervene … ; (2) [t]he extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention [sooner] … ; (3) [t]he extent of the prejudice that the would-be intervenor may suffer if … interven[tion] is denied; and (4) [t]he existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir. 1977) (citations omitted).

Or, more tersely, whether something is “timely” is determined in the Fifth Circuit by balancing the following four factors:

1. Whether it’s timely.

2. Whether the delay caused harm, which shouldn’t matter: if it’s late, it’s late.

3. Whether the would-be intervenor would be harmed by not intervening, which is irrelevant to timeliness and addressed elsewhere in Rule 24.

4. Anything else in the entire world that seems “unusual.”

Even by the standards of multi-factor tests, the Stallworth test is particularly grisly. But you can’t blame Judge Kacsmaryk for this one.

Let’s start with the first of the four Stallworth factors in what would be, in a perfect world, a one-factor test: the “length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it petitioned to intervene.” The states didn’t file their intervention motion until over 11 months after the lawsuit was filed. That sounds like a lot of months!

Judge Kacsmaryk nonetheless finds that this factor weighs in favor of timeliness. First, Judge Kacsmaryk finds that “the States only recently learned of the foregoing significant circumstances: namely, the number of their residents obtaining chemical abortions and the number of out-of-state organizations mailing abortion pills into their states” (p. 4). The states claim they became aware of this information in June and July of 2023.

However, the states’ argument that they only “recently learned” of their interest in the case is in some tension with the fact that all three states filed or signed on to amicus briefs in this very case in February 2023! Idaho and Kansas signed on to an amicus brief which complained that “the FDA now broadly condones a wide-ranging mail-order abortion-drug regime” and that “the FDA’s actions threaten to undermine the amici States’ enforcement of duly enacted laws and thus undercut the public interest that those laws promote.” Missouri elected to file its own amicus brief, which argued: “Missouri has a strong interest in this litigation because the FDA’s decision to disregard the requirements of 18 U.S.C. §§ 1461–62 and create a regime of abortion by mail imposes harms that necessarily spill over into Missouri, impeding the operation of state law and drastically increasing the risks faced by Missouri women.”

Back when I was in college, a song that incessantly played on the radio (which used to be a thing) was Shaggy’s “It Wasn’t Me.” The plot of this song was that Shaggy denied cheating on his girlfriend, even though the girlfriend not only personally witnessed the event but actually caught the event on camera. Shaggy’s argument is quite redolent of the intervenor-states’ claim in this case that they were unaware of their interest in the litigation until summer 2023, despite having filed amicus briefs in February 2023, that remain available on PACER, declaring their interest in the litigation.

But, you might protest, perhaps the states learned of specific information in summer 2023 that made their interest in the litigation more acute? No. No! Judge Kacsmaryk’s first point—the states learned of the “number of their residents obtaining chemical abortions” (p. 4)—is a reference to a report from June 2023 revealing that 2,883 Missourians obtained abortions in Kansas. But even setting aside the fact that this does not explain the delay from June 2023 to November 2023, it ignores a rather important point raised by the government: Kansas publishes a similar report every year, and the numbers of Missourians crossing state lines in prior years was much higher—3,937 in 2021 and 3,641 in 2022. As the government puts it in its brief: “Data revealing that the number of Missourians obtaining an abortion in Kansas decreased by 27% did not newly reveal any interest by Missouri in the outcome of this litigation.”

As for Judge Kacsmaryk’s point that the states learned of “the number of out-of-state organizations mailing abortion pills into their states”—the states’ motion merely identifies two articles from July 2023 they found on the Internet, one from the Washington Post and one from the Guardian, attesting that organizations are mailing mifepristone over the Internet into states where abortion is restricted. The government correctly points out in response that similar articles were appearing on the Internet for months. Also, it should not be a major surprise that in a world where mifepristone can be mailed, mifepristone will in fact be mailed. But, whatever. Judge Kacsmaryk demonstrates no curiosity as to whether the states’ assertions that they found out crucial new information are even the slightest bit plausible. He simply declares that because the states said them, they are true.

Judge Kacsmaryk also reaches the following legal conclusion:

And in any event, motions to intervene filed “before trial and any final judgment” are generally not unreasonable or untimely.  John Doe No. 1 v. Glickman, 256 F.3d 371, 378 (5th Cir. 2001); Edwards v. City of Houston, 78 F.3d 983, 1001 (5th Cir. 1996) (“[T]hat these motions were filed prior to the entry of judgment favors timeliness, as most of our case law rejecting petitions for intervention as untimely concerns motions filed after judgment was entered in the litigation.”).

I promise you that the Fifth Circuit has never held that “motions to intervene filed ‘before trial and any final judgment’ are generally not unreasonable or untimely.” Here’s what the John Doe case actually says:

The D.C. Court stayed the D.C. Lawsuit, the first lawsuit, pending the outcome of the Waco Lawsuit, the second lawsuit, on June 13, 2000. Until then, the D.C. Lawsuit could have been the lawsuit where the Issue would be decided. … Thus, we conclude that the Institute’s stake in the Waco Lawsuit materialized on June 13, 2000 … The Institute filed its motion to intervene in the Waco Lawsuit on July 12, 2000, before trial and any final judgment. We cannot say that this delay is unreasonable.

OK, so all the Fifth Circuit is saying is that the intervenors filed their motion one month after learning of their interest in the case, which was “before trial and any final judgment,” so on the facts of that case, the intervenors’ motion was timely. Judge Kacsmaryk extracts this sentence fragment from John Doe and heroically transforms it into the principle that motions to intervene filed “before trial and any final judgment” are generally not unreasonable or untimely, thus excusing the states’ eleven-month delay.

As for the Edwards case, the facts are similar to John Doe. Here’s the key language:

From the record before us, it appears that these appellants knew or reasonably should have known of the broad reach of the Consent Decree and its adverse effects on the interests of their members no earlier than February 3, 1993, the date of the official notice of the decree. Accordingly, the HPPU's motion of March 12, 1993, and the HAPOA's oral motion of March 22, 1993, were received by the district court only 37 and 47 days, respectively, after publication of the notice and the decree. In light of our jurisprudence, these delays are not unreasonable. … Additionally, that these motions were filed prior to entry of judgment favors timeliness, as most of our case law rejecting petitions for intervention as untimely concern motions filed after judgment was entered in the litigation.

In other words, the intervenors got word of the proposed consent decree and scrambled to intervene within 47 days, and they managed to get a motion to intervene on the table before final judgment, which the Fifth Circuit felt was a point in their favor. This case is several parsecs away from the proposition that “motions to intervene filed ‘before trial and any final judgment’ are generally not unreasonable or untimely.”

Nothing has happened since April

Let’s turn to Stallworth factor #2: whether the government would be prejudiced by the delay. The government has a strong argument that it will be prejudiced by the long delay: if the states’ gambit succeeds, it will force the government to essentially redo the entire lawsuit. If the Supreme Court holds that the private plaintiffs lack standing, then the government faces the prospect of Judge Kacsmaryk again overturning the FDA’s orders to remedy the states’ purported injuries, following which the government will have to go through another round of stay applications to the Fifth Circuit and Supreme Court. If the states had moved to intervene earlier, the case could have been resolved in one shot rather than two.

Judge Kacsmaryk rejects the government’s argument, offering two justifications. First, he says (p. 5): “Any delay in filing a motion to intervene ‘cause[s] no prejudice whatsoever’ where, during the period in question, ‘the parties to [the] litigation did nothing except anticipate and prepare to address arguments to be presented later on.’”  This is a reference to the states’ argument (p. 4) that “‘no party has filed any substantive motion with this Court since the Court stayed Defendants’ deadline to answer the Complaint on April 25, 2023.”

OK, so Judge Kacsmaryk is saying that there’s no prejudice because there have been no substantive filings in the district court since April 25. And maybe the reason there have been no substantive filings in the district court since April 25 is that the Supreme Court stayed Judge Kacsmaryk’s injunction in its entirety on April 21. Meanwhile, ever since Judge Kacsmaryk issued his injunction, there have been: (1) an emergency stay application filed in the Fifth Circuit, yielding a partial stay; (2) an emergency stay application in the Supreme Court, yielding a complete stay; (3) a Fifth Circuit merits decision; and (4) a petition for certiorari which has since been granted. Yet Judge Kacsmaryk, apparently blissfully unaware of these proceedings in the Fifth Circuit and Supreme Court, declares that during this entire period “the parties to [the] litigation did nothing except anticipate and prepare to address arguments to be presented later on.”

Judge Kacsmaryk’s second point is this: “Moreover, allowing intervention plausibly reduces the prejudice to Defendants because the only other realistic path for Intervenors is to file a separate lawsuit.”

In other words, Judge Kacsmaryk is actually trying to be helpful to the government! If the the plaintiffs filed a separate lawsuit before a different judge, the government might have to do even more work, so “allowing intervention plausibly reduces the prejudice” to the government! I am sure the government’s lawyers are quite grateful for this courtesy.

I’m harmed if someone else isn’t harmed

Stallworth factor #3 concerns whether the would-be intervenors would be prejudiced if intervention is denied. The answer is no. The outcome the intervenors are worried about is that the private plaintiffs’ claims will be dismissed for lack of standing. This would cause zero harm to the intervenors. The intervenors emphasize that their harms are very different from the private plaintiffs’ harms. If so, then a decision saying the private plaintiffs lack standing wouldn’t harm them in the slightest.

Judge Kacsmaryk nonetheless finds that this factor weighs in the states’ favor. Here’s what he says (p. 6, cleaned up):

As Intervenors persuasively pled, “an adverse ruling in this litigation could significantly affect their ability to regulate their sovereign state legal systems or otherwise act to prevent both direct economic harms to the state and significant harms to the States’ citizens.” …  Further, several legal rights are “associated with formal intervention, namely the briefing of issues, presentation of evidence, and ability to appeal,” prompting the Fifth Circuit to acknowledge that the loss of the ability “to participate” in that manner or to “appeal the ruling” results in prejudice to the intervenor.

On the first point, Judge Kacsmaryk is saying that the states are harmed by the FDA’s orders facilitating access to mifepristone, so if the private plaintiffs lose, then the states would be worse off than if the private plaintiffs win. I don’t buy it, but let’s say that’s true. So what? It’s the FDA’s orders, not the court order, that would be harming the states. And if the states are harmed by the FDA’s orders, then they can sue the FDA. They don’t have to participate in this case. They might have to file their lawsuits in their home states and hence get a different judge, but “not litigating before Judge Kacsmaryk” isn’t the sort of “prejudice” that Stallworth has in mind.

As for the second point, Judge Kacsmaryk is listing the legal rights that intervenors get when they intervene. Judge Kacsmaryk is saying: the state-intervenors are prejudiced from not being able to intervene, because if they can’t intervene, they can’t do the things that intervenors do. I will leave it as an exercise to the reader to figure out how this reasoning would show that the “prejudice” factor is satisfied in 100% of cases.

This post is starting to drag, so I’ll address only one more of the many errors in Judge Kacsmaryk’s order. Rule 24(a) requires courts to assess whether denying intervention would impede a would-be intervenor’s ability to protect its interests—a factor very similar to Stallworth’s third factor. Judge Kacsmaryk insists that denying intervention would yield that result for the following reason (pp. 9-10, cleaned up):

[C]ontra Defendants’ arguments, the Court’s ruling “will undoubtedly … be relied upon as a precedent in future actions,” and “the stare decisis effect of the district court’s judgment on an intervenor’s interest” is sufficient to “supply the requisite disadvantage to satisfy this test.” Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416, 424 (5th Cir. 2002).

In the case Judge Kacsmaryk cites, the would-be intervenor was concerned that the district court would issue a ruling that would influence other courts. The would-be intervenor therefore wanted the opportunity to influence that ruling so as not to be negatively affected by the “stare decisis effect of the district court’s judgment.” (I didn’t think district court judgments could have stare decisis effects, but I’ll let that go.)

In this case, however, the intervenor-states are concerned that the district court won’t issue a ruling, because the Supreme Court might find that the private plaintiffs lack standing. So what “stare decisis effect of the district court’s judgment” are we even talking about?

Of course, the Supreme Court might find that the private plaintiffs have standing. But if it does that, it will then decide whether the FDA violated the Administrative Procedure Act on the merits. The states won’t be able to influence that decision because the states aren’t participating in the Supreme Court case. Sure, technically we’re still at the preliminary injunction stage, but whether the FDA violated the Administrative Procedure Act is an issue of law based on the administrative record. If the Supreme Court upholds the FDA’s actions, further discovery in the district court isn’t going to change that outcome.

What exactly is the scenario in which the states might be disadvantaged by a district court decision that they’d be able to influence by intervening? Maybe something like: (1) the Supreme Court holds that the private plaintiffs do have standing, but (2) resolves the merits issue in a way that somehow leaves the district court with additional work to do on remand, after which (3) Judge Kacsmaryk would be otherwise inclined to vote in favor of the FDA, yielding a district court judgment with adverse stare decisis effect on the states, but (4) the states’ super briefing will save the day and convince Judge Kacsmaryk to rule against the FDA? This sounds like shark-attack probability to me. Less than that. More like the probability of a shark attack on land.

Sheesh.

This might seem like a minor technical order, but it really opens the door to more mischief down the road. We’ve already had one dramatic round of stay applications on mifepristone. We don’t need two, particularly when the case for intervention is so weak. Oh well, at least I won’t have trouble coming up with topics for future Substack posts.