The mifeprestone ban, which goes into effect Friday, might not be the slam dunk conservatives expect. The DoJ has filed an appeal, and this could turn out better than we think. Via the New York Times:
At first blush, all of that might seem to make the decision’s chances of surviving review by a Supreme Court dominated by conservative justices quite promising.
But legal scholars said on Monday that the poor quality, breathtaking sweep and unknown collateral consequences of the Texas decision might cause at least some of the Supreme Court’s conservative justices to wait for a case that would allow them to take more measured steps.
“If you’re a justice looking for a case in which to undermine the administrative state, this is not a particularly elegant one,” said Mary Ziegler, a law professor and historian at the University of California, Davis. “Everything about this case makes it an imperfect vehicle, except for the fact that it’s about abortion and the administrative state. This is boundary testing.”
Jonathan H. Adler, a law professor at Case Western Reserve University, said the new case, should it reach the Supreme Court, might meet a reception similar to that of the latest challenge to the Affordable Care Act. In 2021, by a vote of 7 to 2, the court said that the 18 Republican-led states and two individuals who brought the case had not suffered the sort of direct injury that gave them standing to sue.
Imagine. Even Leonard Leo's Court might find this case too hard to swallow.
In 2020, in an earlier encounter with the case, Justice Alito, joined by Justice Clarence Thomas, expressed incredulity that “a district court judge in Maryland took it upon himself to overrule the F.D.A. on a question of drug safety.” (The Biden administration later removed the requirement that the pill be dispensed in person.)
In a dissent in 2009, Justice Alito, joined by Chief Justice Roberts and Justice Antonin Scalia, praised the agency’s expertise, saying “the F.D.A. has the benefit of the long view.”
The majority had ruled that the agency’s approval of a drug had not displaced injured plaintiffs’ ability to sue under state law. Justice Alito disagreed. “Where the F.D.A. determines, in accordance with its statutory mandate, that a drug is on balance ‘safe,’” he wrote, the court’s precedents “prohibit any state from countermanding that determination.”
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