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I was wrong about the Mifepristone ruling, but not by much [1]

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Date: 2024-06-16  

Back in March, right after oral arguments, I made a prediction about the ruling.

FOOD AND DRUG ADMINISTRATION ET AL. v.ALLIANCE FOR HIPPOCRATIC MEDICINE ET AL.

I said 8-1. it was 9-0.

I thought Alito would vote against it, mostly because it would be “safe” to do so. The strong rebuttal to Kaczmarek’s terrible take on standing would stand, but Alito could could continue his ongoing war against women’s reproductive rights.

I think the primary reason Alito was strong-armed into voting along with everyone else — and I do absolutely believe that significant pressure was put on him to do so — lies in the third section of the ruling:

The medical associations say that they have demonstrated something more here. They claim to have standing not based on their mere disagreement with FDA’s policies, but based on their incurring costs to oppose FDA’s actions. They say that FDA has “caused” the associations to conduct their own studies on mifepristone so that the associations can better inform their members and the public about mifepristone’s risks. Brief for Respondents 43.They contend that FDA has “forced” the associations to“expend considerable time, energy, and resources” drafting citizen petitions to FDA, as well as engaging in public advocacy and public education. Id., at 44 (quotation marks omitted). And all of that has caused the associations to spend “considerable resources” to the detriment of other spending priorities. Ibid. But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way. The medical associations respond that under Havens Realty Corp. v. Coleman, standing exists when an organization diverts its resources in response to a defendant’s actions. 455 U. S. 363. That is incorrect. Indeed, that theory would mean that all the organizations in America would have standing to challenge almost every federal policy that they dislike, provided they spend a single dollar opposing those policies. Havens does not support such an expansive theory of standing. (emphasis mine)

I don’t remember this argument being in Kaczmarek’s ruling and I believe I missed it being brought up during oral arguments. It may have been in an amicus brief.

This argument — all by itself — is terrible and absolutely had to be repudiated by the court. Any mechanism whereby a party can generate standing solely through its own actions would simply shred the judicial system.

i said it would come from one of the liberal justices. the decision was written by kavanaugh

I think Kavanaugh may have asked for this assignment. He’s considered a lightweight on the court and I suspect the circumstances of his confirmation may still carry some sting. This ruling puts Kavanaugh front and center at a time when a distraction is needed from Thomas and Alito, plus it comes with some gravitas.

I also think Roberts may have given Kavanaugh his marching orders:

The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone.

This almost certainly not the sort of language that would have been used by Sotomayor, Kagin or Jackson. It may also have been part of the reason Alito came on board. “Abortion is always bad and mifepristone should be outlawed, but we can’t do it now, in this way,” sounds exactly like Alito’s sense of how the law should work.

“A radical judge in an out-of-control Fifth Circuit did a bad thing and should feel bad” would be an appropriate tone after Dobbs, but the conservative justices would never have stood for it.

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