Great review! Since Summers was mostly about my declarations, this ruling is really disturbing. We had an exponentially better Standing argument. We demonstrated it was a virtual certainty our members would be harmed. When the Forest Service started challenging our Standing, I prepared a declaration of many examples of on going timber sales that were harming me that started after we filed our first declarations. The dissent said it is exactly what was needed, but Scalia (I secretly gave him the finger during oral arguments) refused to consider it. Adam, I know you were just quoting what Scalia said, but my first declaration which Scalia considered did cite on going timber sales that were harming me:
14. The new regulations allow projects such as timber sales to be Categorically Excluded without
appeals. Since these regulations have been implemented there have been several projects that I have not been able to appeal. For example, this year the Allegheny National Forest put out for scoping comments a series of about 20 timber sales that are being Categorically Excluded. Some of these sales are in places I have been before and want to go back and see again. Several of the projects have been approved. If these timber sales were subject to appeal, Heartwood and I would have appealed them.
With this (and ignoring my second declaration) Scalia threw us out. This is a million times stronger than anything these quacks claimed!
Unfortunately there is no comfort in Mr. Unikowsky’s statement that
“The portions of the Fifth Circuit’s opinion affirming the district court are irredeemably wrong and will be reversed by the Supreme Court by a lopsided margin.”
The reason for concern is that the conservatives, and I use that term in jest, no longer use legal logic and precedents and statutes as the basis for their opinions but instead substitute their own political positions and religious biases as the support for an opinion.
So we know that Justices Thomas and Alito will vote to uphold any restrictions on reproductive rights. And it is possible but not certain that Justices Cavanaugh and Gorsuch will go along in order to sustain the approval of those whose actions placed them on the Court. So a key vote will be Justice Barrett
It is no secret that Justice Barrett is extremely anti-abortion. Very extremely. So will she abandon legal principles that are so solid that they defy any challenge by any person about their legitimacy based on the law? Or will she vote her private policy position. The smart money should be on the decision that she will do just that. So that makes a credible five in support of upholding the 5th circuit.
The CJ would normally be expected to vote based on legal principles. But there are two reasons he might go with the Fab Five. One reason is that unless he votes with them Justice Thomas would decide the author of the opinion, and it would be either himself of Justice Alito. The opinion of Justice Alito on abortions rights issued last year was such a disaster for the Court that no one would support giving him another one, and if Justice Thomas were to author the opinion, well we all know how that would turn out. So in order to ascribe the opinion to himself the CJ might well side with the majority were it to be formed.
The second reason why the CJ might join the anti-abortion rights group would be to make the decision 6 to 3 instead of 5 to 4, thus giving it more legitimacy in the eyes of the public. The CJ cares about the Court’s image, and might well believe a 6 to 3 decision is better for that reason.
So hopefully Mr. Unikowsky’s prediction will be correct, and he certainly knows more about the Court and its member than I do. But that don’t let me sleep well at night.
Having voted 7-2 to ice Kaczmaryk order, ruling 6-3 the other way would be quite a volte face. Roberts may figure, let ‘em pour fuel on their own fire. Kav likes to be the good guy friend of all (except the Clintons) and it could come down 4-1-4.
As someone who has spent his career in Pharma development including having numerous face to face interactions with the FDA, I can say without a doubt Mifepristone has one of the best risk-benefit profiles of a drug I’ve seen. Not to mention the voluminous post-marketing data while the product was managed by the sponsor company for well over a decade. While OTC drugs like Benadryl can cause CNS impairment which can cause sedation during “wake” hours, not to mention the numerous states allowing cannabis use also potentially causing sedation - on both cases leading to the potential of drugged-driving and accidents (not to mention alcohol!), the fact a judge with zero medical or scientific acumen, taking data that is fundamentally misrepresented or incorrect, from a party as Adam beautifully described, having NO standing. It worries me that judges like Kasmaryk and Ho can unilaterally dismantle decisions made by the FDA. And in turn, take what is a lengthy and arduous process to get pharmaceutical products approved, and simply toss those decision out the window on a whim, based on personal beliefs. What next? Vaccines? Pain meds like Tylenol? The judicial attack on science continues unabated.
"Patients who take mifepristone in order to have abortions will be sad, and so the plaintiff-doctors will also be sad."
I laughed when I read this because I thought you were just cheekily oversimplifying, and then you included the actual quote from an actual court of appeals that actually said this.
I've been following your blog since you started writing about this case. I can't even digest the merits of this because from day 1 - and I say this as a doctor myself - the standing theory is one of the most lobotomizingly stupid things I've ever seen presented as a serious legal argument. And I feel like I'm starting to gaslight myself into wondering if *I'm* the idiot because we now have multiple judges who seem completely satisfied with it.
Disregarding the absurd implications of the logic (i.e., I could sue the government for anything that might maybe possibly bring a patient to me and take away time from my other patients), I'm just dumbstruck at the idea that a *doctor* can claim an injury from what is literally their job.
I'm usually one to defend the reasoning of even courts I disagree with violently in political affinity and virtually always subscribe to the idea that appeals courts are full of smart making good faith attempts to apply the rules coherently. However, this is one of the very few cases that makes me wonder if some judges didn't decide that they couldn't let something as technical as standing doctrine cause them to enable more abortions.
I'd really love to be wrong, but what exactly do the judges on the 5th circuit see as the limiting principle on their theory of standing in this case? Surely if this flies then I should be able to submit reports by economic experts on the relationship of spending to inflation or future debt payment rates and revive general taxpayer standing. Any professor would have standing to challenge any aspect of state education as they might be called on to teach the students who result.
Judge Ho sounds like a deeply disturbed and VERY creepy political hack. The 5th circuit seems determined to out-clowncar even the Robert's Kangaroo Court. Maybe they're trying to be more incompetent than Judge Cannon in Florida?? Seems there is a race to the bottom to see who can be more ridiculous.
Should anyone need a current Circuit decision on standing, there is this from the 4th Circuit in rejecting a claim by parents about a Maryland school policy where they had no injury. From Parents vs Maryland, 22-2034 published a few days ago.
“Absent an injury that creates standing, federal courts lack the power to address the parents’ objections to the Guidelines. That does not mean their objections are invalid. In fact, they may be quite persuasive. But, by failing to allege any injury to themselves, the parents’ opposition to the Parental Preclusion Policy reflects a policy disagreement. And policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse. So, we remand to the district court to dismiss the case for lack of standing. “
And this
“Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. That federal courts’ jurisdiction is limited to actual cases or controversies is a “bedrock” principle fundamental to our judiciary’s role in our system of government. Raines v. Byrd, 521 U.S. 811, 818 (1997). . . .
In other words, a plaintiff must have a sufficient “personal stake in the alleged dispute” and have a particularized injury that a court can remedy. Raines, 521 U.S. at 819 (internal quotation marks and citation omitted). . . .
That means disputes without an injury that confers standing should be addressed to elected officials, not the courts. Indeed, under Article III: [F]ederal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question. Federal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities. And federal courts do not issue advisory opinions. Transunion LLC, 141 S. Ct. at 2203. The limit on federal courts’ jurisdiction is clear: “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.” Id. at 2205 (internal quotation marks and citations omitted). At bottom, we may only resolve real controversies with real impact on real people.”
And this
“An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” (cleaned up)); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013). And for a future injury to support Article III standing, the claimed harm must not be so speculative as to lie “at the end of a ‘highly attenuated chain of possibilities.’” South Carolina v. United States, 912 F.3d 720, 727 (4th Cir. 2019) (quoting Clapper, 568 U.S. at 410) (noting that “[t]he Supreme Court has repeatedly held” that harms lying at the end of a highly attenuated chain of possibilities are too speculative to support standing). The risk of a future injury must be substantial, not just conceivable. “
It’s though the 4th Circuit borrowed the writings and thoughts verbatim of Mr. Unikowsky in writing the opinion. It’s that well done.
absolutely marvelous take on the standing issues. The only "standing" those doctors have is when they get up from their chairs.
I'm wondering how many of the declarants are actually ER doctors, as opposed to doctors doing duty as the standby expert on a particular issue. Just as my urologist isn't an ER doctor but might be on rotation to be consulted if I show up with low kidney values. That lessens even further the chances one will encounter a woman with complications--it would have to be on THEIR rotation.
As usual insightful readable article on an important technical subject. Thanks. Will you forgive one nitpick. Tolstoy not Dostoyevsky opined on happy families.
I think the court is getting a lot of mileage out of this still being in an interlocutory phase and falling back on “reasonable likelihood of success” rather than actual proof. They claim some wiggle room on account of this. The case still hasn’t gone to trial AFAIK.
Still I fear SCOTUS will ultimately affirm (post 2016 changes rejected) as a Goldilocks compromise, with Brewski Brett writing for the Court.
Deploying the tried true IANA...wait that acronym's not right...as a liberal arts major this is a concise, coherent explanation and rebuttals to the decision. Thank you.
But really, there's a legal theory behind “aesthetic injury"? If so, I have so many lawsuits to file.
You can sue people in small claims court all day long, and I'm gonna start doing that. If the authorities don't do their job and they violate the law I'm gonna take them to court. I might make my fortune, one small claims court at a time. Why not? It's the only legal Avenue that regular people can access.
"These statistics also tell us nothing about HOW often these plaintiff-doctors—or any doctors—are the only doctors in the ER, thus . . ."
Second, the analysis is thorough. Perhaps next time an abridged summary should be offered. It can feature footnotes referencing case law (and short explanations of the case law.) I read this stuff, but I am aware that our society has "sped up" over the years, resulting in shorter attention spans. I observe that people react to "sound bites" instead of scholarly analyses. Thanks for your hard work!
Terrific analysis. Won't stop me from citing to the decision, if I ever happen to represent a client who wants to challenge a gun deregulation or the like, as you posit--any appellate decision may properly be considered by any federal court, regardless of whether I personally like the decision. But it is, shall we say, highly motivated reasoning. Nor am I confident that the Supreme Court won't endorse it--the Court has often stretched the boundaries of standing when it wants to
Great review! Since Summers was mostly about my declarations, this ruling is really disturbing. We had an exponentially better Standing argument. We demonstrated it was a virtual certainty our members would be harmed. When the Forest Service started challenging our Standing, I prepared a declaration of many examples of on going timber sales that were harming me that started after we filed our first declarations. The dissent said it is exactly what was needed, but Scalia (I secretly gave him the finger during oral arguments) refused to consider it. Adam, I know you were just quoting what Scalia said, but my first declaration which Scalia considered did cite on going timber sales that were harming me:
14. The new regulations allow projects such as timber sales to be Categorically Excluded without
appeals. Since these regulations have been implemented there have been several projects that I have not been able to appeal. For example, this year the Allegheny National Forest put out for scoping comments a series of about 20 timber sales that are being Categorically Excluded. Some of these sales are in places I have been before and want to go back and see again. Several of the projects have been approved. If these timber sales were subject to appeal, Heartwood and I would have appealed them.
With this (and ignoring my second declaration) Scalia threw us out. This is a million times stronger than anything these quacks claimed!
This is my First Standing declaration that Scalia considered: https://drive.google.com/open?id=10fZ-YLJCGKUENbzN-8CN8H3IjwRkrV-b&usp=drive_fs
This is the 2nd one Scalia would not consider: https://drive.google.com/open?id=10hxi8gTWjQg11lPuQCl5y75C9N4cWafl&usp=drive_fs
Unfortunately there is no comfort in Mr. Unikowsky’s statement that
“The portions of the Fifth Circuit’s opinion affirming the district court are irredeemably wrong and will be reversed by the Supreme Court by a lopsided margin.”
The reason for concern is that the conservatives, and I use that term in jest, no longer use legal logic and precedents and statutes as the basis for their opinions but instead substitute their own political positions and religious biases as the support for an opinion.
So we know that Justices Thomas and Alito will vote to uphold any restrictions on reproductive rights. And it is possible but not certain that Justices Cavanaugh and Gorsuch will go along in order to sustain the approval of those whose actions placed them on the Court. So a key vote will be Justice Barrett
It is no secret that Justice Barrett is extremely anti-abortion. Very extremely. So will she abandon legal principles that are so solid that they defy any challenge by any person about their legitimacy based on the law? Or will she vote her private policy position. The smart money should be on the decision that she will do just that. So that makes a credible five in support of upholding the 5th circuit.
The CJ would normally be expected to vote based on legal principles. But there are two reasons he might go with the Fab Five. One reason is that unless he votes with them Justice Thomas would decide the author of the opinion, and it would be either himself of Justice Alito. The opinion of Justice Alito on abortions rights issued last year was such a disaster for the Court that no one would support giving him another one, and if Justice Thomas were to author the opinion, well we all know how that would turn out. So in order to ascribe the opinion to himself the CJ might well side with the majority were it to be formed.
The second reason why the CJ might join the anti-abortion rights group would be to make the decision 6 to 3 instead of 5 to 4, thus giving it more legitimacy in the eyes of the public. The CJ cares about the Court’s image, and might well believe a 6 to 3 decision is better for that reason.
So hopefully Mr. Unikowsky’s prediction will be correct, and he certainly knows more about the Court and its member than I do. But that don’t let me sleep well at night.
Having voted 7-2 to ice Kaczmaryk order, ruling 6-3 the other way would be quite a volte face. Roberts may figure, let ‘em pour fuel on their own fire. Kav likes to be the good guy friend of all (except the Clintons) and it could come down 4-1-4.
True enough, but inconsistency is a super power granted to a Supreme Court Justice.
As someone who has spent his career in Pharma development including having numerous face to face interactions with the FDA, I can say without a doubt Mifepristone has one of the best risk-benefit profiles of a drug I’ve seen. Not to mention the voluminous post-marketing data while the product was managed by the sponsor company for well over a decade. While OTC drugs like Benadryl can cause CNS impairment which can cause sedation during “wake” hours, not to mention the numerous states allowing cannabis use also potentially causing sedation - on both cases leading to the potential of drugged-driving and accidents (not to mention alcohol!), the fact a judge with zero medical or scientific acumen, taking data that is fundamentally misrepresented or incorrect, from a party as Adam beautifully described, having NO standing. It worries me that judges like Kasmaryk and Ho can unilaterally dismantle decisions made by the FDA. And in turn, take what is a lengthy and arduous process to get pharmaceutical products approved, and simply toss those decision out the window on a whim, based on personal beliefs. What next? Vaccines? Pain meds like Tylenol? The judicial attack on science continues unabated.
"Patients who take mifepristone in order to have abortions will be sad, and so the plaintiff-doctors will also be sad."
I laughed when I read this because I thought you were just cheekily oversimplifying, and then you included the actual quote from an actual court of appeals that actually said this.
I've been following your blog since you started writing about this case. I can't even digest the merits of this because from day 1 - and I say this as a doctor myself - the standing theory is one of the most lobotomizingly stupid things I've ever seen presented as a serious legal argument. And I feel like I'm starting to gaslight myself into wondering if *I'm* the idiot because we now have multiple judges who seem completely satisfied with it.
Disregarding the absurd implications of the logic (i.e., I could sue the government for anything that might maybe possibly bring a patient to me and take away time from my other patients), I'm just dumbstruck at the idea that a *doctor* can claim an injury from what is literally their job.
I'm usually one to defend the reasoning of even courts I disagree with violently in political affinity and virtually always subscribe to the idea that appeals courts are full of smart making good faith attempts to apply the rules coherently. However, this is one of the very few cases that makes me wonder if some judges didn't decide that they couldn't let something as technical as standing doctrine cause them to enable more abortions.
I'd really love to be wrong, but what exactly do the judges on the 5th circuit see as the limiting principle on their theory of standing in this case? Surely if this flies then I should be able to submit reports by economic experts on the relationship of spending to inflation or future debt payment rates and revive general taxpayer standing. Any professor would have standing to challenge any aspect of state education as they might be called on to teach the students who result.
Brilliant explanation.
Judge Ho sounds like a deeply disturbed and VERY creepy political hack. The 5th circuit seems determined to out-clowncar even the Robert's Kangaroo Court. Maybe they're trying to be more incompetent than Judge Cannon in Florida?? Seems there is a race to the bottom to see who can be more ridiculous.
It's a race to the bottom to see who the next GOP president will appoint to SCOTUS.
Should anyone need a current Circuit decision on standing, there is this from the 4th Circuit in rejecting a claim by parents about a Maryland school policy where they had no injury. From Parents vs Maryland, 22-2034 published a few days ago.
“Absent an injury that creates standing, federal courts lack the power to address the parents’ objections to the Guidelines. That does not mean their objections are invalid. In fact, they may be quite persuasive. But, by failing to allege any injury to themselves, the parents’ opposition to the Parental Preclusion Policy reflects a policy disagreement. And policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse. So, we remand to the district court to dismiss the case for lack of standing. “
And this
“Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. That federal courts’ jurisdiction is limited to actual cases or controversies is a “bedrock” principle fundamental to our judiciary’s role in our system of government. Raines v. Byrd, 521 U.S. 811, 818 (1997). . . .
In other words, a plaintiff must have a sufficient “personal stake in the alleged dispute” and have a particularized injury that a court can remedy. Raines, 521 U.S. at 819 (internal quotation marks and citation omitted). . . .
That means disputes without an injury that confers standing should be addressed to elected officials, not the courts. Indeed, under Article III: [F]ederal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question. Federal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities. And federal courts do not issue advisory opinions. Transunion LLC, 141 S. Ct. at 2203. The limit on federal courts’ jurisdiction is clear: “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.” Id. at 2205 (internal quotation marks and citations omitted). At bottom, we may only resolve real controversies with real impact on real people.”
And this
“An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” (cleaned up)); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013). And for a future injury to support Article III standing, the claimed harm must not be so speculative as to lie “at the end of a ‘highly attenuated chain of possibilities.’” South Carolina v. United States, 912 F.3d 720, 727 (4th Cir. 2019) (quoting Clapper, 568 U.S. at 410) (noting that “[t]he Supreme Court has repeatedly held” that harms lying at the end of a highly attenuated chain of possibilities are too speculative to support standing). The risk of a future injury must be substantial, not just conceivable. “
It’s though the 4th Circuit borrowed the writings and thoughts verbatim of Mr. Unikowsky in writing the opinion. It’s that well done.
absolutely marvelous take on the standing issues. The only "standing" those doctors have is when they get up from their chairs.
I'm wondering how many of the declarants are actually ER doctors, as opposed to doctors doing duty as the standby expert on a particular issue. Just as my urologist isn't an ER doctor but might be on rotation to be consulted if I show up with low kidney values. That lessens even further the chances one will encounter a woman with complications--it would have to be on THEIR rotation.
As usual insightful readable article on an important technical subject. Thanks. Will you forgive one nitpick. Tolstoy not Dostoyevsky opined on happy families.
I think the court is getting a lot of mileage out of this still being in an interlocutory phase and falling back on “reasonable likelihood of success” rather than actual proof. They claim some wiggle room on account of this. The case still hasn’t gone to trial AFAIK.
Still I fear SCOTUS will ultimately affirm (post 2016 changes rejected) as a Goldilocks compromise, with Brewski Brett writing for the Court.
Deploying the tried true IANA...wait that acronym's not right...as a liberal arts major this is a concise, coherent explanation and rebuttals to the decision. Thank you.
But really, there's a legal theory behind “aesthetic injury"? If so, I have so many lawsuits to file.
You can sue people in small claims court all day long, and I'm gonna start doing that. If the authorities don't do their job and they violate the law I'm gonna take them to court. I might make my fortune, one small claims court at a time. Why not? It's the only legal Avenue that regular people can access.
A couple of observations.
Least important first. A typo by omission:
The word "HOW" is missing.
"These statistics also tell us nothing about HOW often these plaintiff-doctors—or any doctors—are the only doctors in the ER, thus . . ."
Second, the analysis is thorough. Perhaps next time an abridged summary should be offered. It can feature footnotes referencing case law (and short explanations of the case law.) I read this stuff, but I am aware that our society has "sped up" over the years, resulting in shorter attention spans. I observe that people react to "sound bites" instead of scholarly analyses. Thanks for your hard work!
Terrific analysis. Won't stop me from citing to the decision, if I ever happen to represent a client who wants to challenge a gun deregulation or the like, as you posit--any appellate decision may properly be considered by any federal court, regardless of whether I personally like the decision. But it is, shall we say, highly motivated reasoning. Nor am I confident that the Supreme Court won't endorse it--the Court has often stretched the boundaries of standing when it wants to
That this decision and your analysis can exist in the same universe is puzzling.
Brilliant work, thanks for taking the time to write it all down.
I’ll see you in Part 2’s comment section!
PS what a tour de force! Can’t wait for part 2.