Opinion by Ruth Marcus: The justices’ abortion pill ruling is as good as it gets for this court
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The legal ramifications of leaving the appeals court ruling in place while the case proceeds would have been equally alarming. Chief among them: There is no honest way, consistent with the Supreme Court’s own precedents, that the antiabortion doctors challenging the FDA’s approval of mifepristone have standing to do so. District Judge Matthew J. Kacsmaryk, and then the two Trump-appointed appeals court judges, found standing only by ignoring cases and distorting the record.
“To describe that theory is to refute it,” U.S. Solicitor General Elizabeth B. Prelogar told the court. And that about sums it up.Standing is a fundamentally conservative doctrine, designed to assure the separation of powers and to keep judges in their proper lanes. The law of standing requires much more than a “speculative chain of possibilities.” The “future injury” must be “certainly impending.” You know who said that?Alito, tellingly, didn’t grapple with the standing question at all.
Alito also said the case has been put on a fast track in the appeals court. The medication would remain available under the rules in place before restrictions were eased in 2016. As to the labeling, why worry? Everyone knows the FDA would never go after the manufacturer.Easy for Alito to discount “the threat of any real harm.” I guess he knows better than Woodcock. And he’s not a pregnant woman forced to make multiple visits to obtain a lawful drug.
That might be done by a different panel than the one that considered the request to stay Kacsmaryk’s order, but the chances are good on the conservative-dominated appeals court that it will concoct some basis for standing and proceed, as did the original panel, to second-guess the FDA on the merits and perhaps even to declare that the 150-year-oldFriday’s action suggests that many if not most conservative justices aren’t eager to plunge back into the abortion maelstrom.
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